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Sometimes in the law, the real win comes in not having your case heard. When you win at the Court of Appeals, you really don't want the Supreme Court to grant review of the case. Even if you're pretty sure the Supremes will see it the same way and you'll still win, it just delays the relief to the client and means the police or prosecutors might keep doing the wrong thing for a while longer, which means there might be a defendant somewhere who will fall through the cracks and have the wrong thing stick to his case.
So it's really not a bad thing that the United States Supreme Court this week declined to review a case out of Illinois that challenged that state's broadly-written eavesdropping law. The law makes it a felony, punishable by up to 15 years, to record someone without that person's permission. Now, lots of states have laws against recording a person without that person's permission. But most states also have an exception for recording a person who does not have a reasonable expectation of privacy. Which is why it's perfectly legal to photograph or video record random people on the street. The purpose of the eavesdropping laws is to protect people who think they're engaging in private behavior, like personal conversations or, you know, bedroom stuff.
The Illinois law, though, does not have any such exception. Which has made it the perfect state to fall at the center of the fight over citizens recording the actions of cops. In this era of smart phones, it's become common for bystanders to arrests to break out that phone and record the incident. Sadly, it has also become somewhat common for cops to challenge those bystanders, harass them, arrest them, delete the footage, etc. In most states, the camera operator has a pretty solid defense by arguing that police officers acting in their official capacity don't have a reasonable expectation of privacy. How can they? They have to fill out reports of everything. They have to expect to testify about arrests, the statements made and the actions taken during them.
In the Illinois case SCOTUS declined to review, the ACLU filed suit, claiming a First Amendment right to record police, so fortunately no bad conviction is involved. The ACLU wanted to launch a government accountability program and wanted assurance that its employees wouldn't be arrested. The 7th Circuit Court of Appeals agreed with the ACLU that we the people get to gather information on our government officials. And now SCOTUS has let that ruling stand by declining to take the case.
For the ACLU and residents of Illinois who were facing prosecution under this application of the eavesdropping law, this cert denial is a good thing. And it means that the only federal appellate case law out there affirms citizens' rights to record the police. But this probably won't be the last we hear of this issue. In that sense, it would have been nice for SCOTUS to take cert and provide a little finality. But then again, they ruled flag burning couldn't be outlawed over 20 years ago and we still hear about occasional flag desecration prosecutions, so maybe we'll still hear about cops arresting citizens for recording arrests for years to come. Let's just hope not in Illinois.
Wednesday, November 28, 2012
Tuesday, November 27, 2012
Oh, Greta
When I watch Greta Van Susteren now, I cringe at the thought that I used to respect her. Way back in the old days when she and Roger Cossack had that show, Burden of Proof, on CNN, I thought she was great. A knowledgeable lawyer. Thoughtful. Way smarter than Roger.
But now she is utterly unwatchable. Between her girl crush on the ridiculous Sarah Palin and her tolerance for the biggest buffoon on the planet, Donald Trump, she lost most of her credibility. The last of it left when she started buying wholesale into the silly Fox News party line on stories instead of choosing for herself what stories to cover.
And she's a Scientologist. Oy.
But now she is utterly unwatchable. Between her girl crush on the ridiculous Sarah Palin and her tolerance for the biggest buffoon on the planet, Donald Trump, she lost most of her credibility. The last of it left when she started buying wholesale into the silly Fox News party line on stories instead of choosing for herself what stories to cover.
And she's a Scientologist. Oy.
Umm, Your Honor, you really can't do that
I found this story on one of my atheist social networking sites last week and have been meaning to write about it, but between the holiday and the hideous weekend thing, I haven't gotten around to it yet. So now here goes.
In Oklahoma, a state court judge ordered a young defendant to attend church once a week for 10 years as part of his probation plan. The 17 year-old defendant had been convicted of a vehicular manslaughter charge. Because of his status as a youthful offender, the judge had more discretion to fashion a unique sentence. The judge added the condition because he thinks "church is important." The judge further said, "I think Jesus can help anybody." It's not clear whether he made that statement at the sentencing hearing or when being interviewed later.
I rather hope I need not explain what the obvious potential problems with that condition are. This did not come to the public's attention because of any objection by the defendant, though. Rather, it was the American Civil Liberties Union that objected. The ACLU lacks standing to object to the defendant's sentence itself, so they raised the issue in the context of an ethical complaint against the judge.*
This topic is one that I'm a little conflicted on. It shouldn't be a surprise to anyone to know that I am a big fan of creative punishments that don't rely on incarceration. I want judges to look for ways to make probation work, especially for young offenders. I want probation to be a way for offenders to connect with their communities, which will help them find a better path in life and not re-offend. Call me a Pollyanna if you will, but I believe our response to crime should be much more rehabilitative than it is in this incarceration-crazy atmosphere.
But, I'm also an atheist and don't appreciate the way religiosity can dominate in some public spheres. Just this week, our local paper has been running a series of stories about the prevalence of prayers at public meetings, for example. Yes, I know it doesn't hurt me to sit quietly for a minute, but it does irk me just how much of my life has been spent in those quiet minutes imposed on me by others when I'd rather just get to work already. If I were ever convicted of a DUI (I don't expect that to happen, btw, just a hypothetical), I would be the defendant who would object to a condition that I attend AA meetings. And I would prevail. I could be required to participate in some kind of alcohol counseling, but I could not be required against my will to participate specifically in AA because of the religious content of its message. (This link provides links to some of the case law on the AA topic.)
So it is with these conflicting views that I come to this: if this defendant were my client and he agrees with the probation condition, truly doesn't object, truly finds it beneficial and something he wants to do, I would agree to it. Heck, I would zealously advocate for that condition if that was what my client wanted. But if my client were like me, I would object to the condition. Even strenuously object. And I would do my level best to make sure the judge didn't engage in vindictive sentencing by saying, "All right, it's prison for you, then." That, to me, is where the real danger comes in with this kind of sentencing condition. That a defendant will not feel like he can object to it, will fear that objecting will lead to the court changing its mind about probation and imposing prison instead. Can we be sure that the defendant is truly, freely, wholeheartedly agreeing to the condition rather than feeling coerced? If a judge thinks it can impose this condition, it stands to reason that a defendant has no clue the judge can't.
What most sticks out to me about this particular Oklahoma case is that the judge suggests that he truly does not understand that he can't require this probation condition whenever he wants. Someone who is regularly sentencing defendants in criminal matters shouldn't be that unaware of the limitations the Constitution imposes on him. I hope this judge has now learned that lesson and will be more careful in future sentencings. But I hope he won't give up on attempts to be creative in sentencings, especially when youthful offenders are involved. There are other ways a court can require a defendant to participate in his community that won't run afoul of the First Amendment.
*I'll be curious to see how the ethics case comes out. I don't have any sense of how such a complaint against a judge in Oklahoma might be treated. I doubt there would be any serious consequences for the judge. Though it does seem to me that complete ignorance of the First Amendment is kind of a problem for a judge.
In Oklahoma, a state court judge ordered a young defendant to attend church once a week for 10 years as part of his probation plan. The 17 year-old defendant had been convicted of a vehicular manslaughter charge. Because of his status as a youthful offender, the judge had more discretion to fashion a unique sentence. The judge added the condition because he thinks "church is important." The judge further said, "I think Jesus can help anybody." It's not clear whether he made that statement at the sentencing hearing or when being interviewed later.
I rather hope I need not explain what the obvious potential problems with that condition are. This did not come to the public's attention because of any objection by the defendant, though. Rather, it was the American Civil Liberties Union that objected. The ACLU lacks standing to object to the defendant's sentence itself, so they raised the issue in the context of an ethical complaint against the judge.*
This topic is one that I'm a little conflicted on. It shouldn't be a surprise to anyone to know that I am a big fan of creative punishments that don't rely on incarceration. I want judges to look for ways to make probation work, especially for young offenders. I want probation to be a way for offenders to connect with their communities, which will help them find a better path in life and not re-offend. Call me a Pollyanna if you will, but I believe our response to crime should be much more rehabilitative than it is in this incarceration-crazy atmosphere.
But, I'm also an atheist and don't appreciate the way religiosity can dominate in some public spheres. Just this week, our local paper has been running a series of stories about the prevalence of prayers at public meetings, for example. Yes, I know it doesn't hurt me to sit quietly for a minute, but it does irk me just how much of my life has been spent in those quiet minutes imposed on me by others when I'd rather just get to work already. If I were ever convicted of a DUI (I don't expect that to happen, btw, just a hypothetical), I would be the defendant who would object to a condition that I attend AA meetings. And I would prevail. I could be required to participate in some kind of alcohol counseling, but I could not be required against my will to participate specifically in AA because of the religious content of its message. (This link provides links to some of the case law on the AA topic.)
So it is with these conflicting views that I come to this: if this defendant were my client and he agrees with the probation condition, truly doesn't object, truly finds it beneficial and something he wants to do, I would agree to it. Heck, I would zealously advocate for that condition if that was what my client wanted. But if my client were like me, I would object to the condition. Even strenuously object. And I would do my level best to make sure the judge didn't engage in vindictive sentencing by saying, "All right, it's prison for you, then." That, to me, is where the real danger comes in with this kind of sentencing condition. That a defendant will not feel like he can object to it, will fear that objecting will lead to the court changing its mind about probation and imposing prison instead. Can we be sure that the defendant is truly, freely, wholeheartedly agreeing to the condition rather than feeling coerced? If a judge thinks it can impose this condition, it stands to reason that a defendant has no clue the judge can't.
What most sticks out to me about this particular Oklahoma case is that the judge suggests that he truly does not understand that he can't require this probation condition whenever he wants. Someone who is regularly sentencing defendants in criminal matters shouldn't be that unaware of the limitations the Constitution imposes on him. I hope this judge has now learned that lesson and will be more careful in future sentencings. But I hope he won't give up on attempts to be creative in sentencings, especially when youthful offenders are involved. There are other ways a court can require a defendant to participate in his community that won't run afoul of the First Amendment.
*I'll be curious to see how the ethics case comes out. I don't have any sense of how such a complaint against a judge in Oklahoma might be treated. I doubt there would be any serious consequences for the judge. Though it does seem to me that complete ignorance of the First Amendment is kind of a problem for a judge.
Monday, November 26, 2012
The insanity defense
If you are my age or older, you most likely remember where you were when President Reagan was shot. I was in 2nd grade, Mrs. Teegarden's class, and I recall the teachers all being hushed and serious while all three 2nd grade classes were brought together and allowed to watch movies (The Lorax, as I recall) instead of having our normal math and reading lessons. I remember learning a little about that one guy who got hurt the worst (though I couldn't have told you his name was James Brady or predicted how famous his wife would become in the gun control movement). I also remember wondering who Jodie Foster was and why this crazy guy thought that shooting the President would somehow win her over. But as with the effect on the gun control debate, I had no idea how significant this shooting and the sad case of John Hinckley, Jr. would be in the discussion of how to treat those mentally ill individuals who cause harm to others.
Hinckley was not convicted of crimes in the 1981 shooting, but was found not guilty by reason of insanity. To this day, he remains committed to a psychiatric facility, though he does now earn the occasional day or weekend pass. To me, this seems an entirely acceptable resolution to the sad, strange attempted assassination committed by a delusional man with serious mental health issues. But to a lot of people, the result was an insult. After that verdict, legislatures around the country started thinking about ways to change the law so that people couldn't "get off" on insanity pleas.
The ripple effects of the Hinckley case are still being felt today. Literally today, as the United States Supreme Court today ruled on a petition for cert out of Idaho. In the debate about what, if anything, to change in response to the Hinckley outcry, a couple of states went so far as to abandon the insanity defense entirely, including Idaho. My state, Kansas, is one of the others to have completely abandoned the old, standard insanity defense, though Kansas is less severe than Idaho. In Kansas, a defendant can argue that she suffered from a mental disease or defect that prevented her from forming the requisite criminal intent. It's something. It basically means that to be found not guilty of stabbing a person to death, the defendant has to think she was cutting cabbage, but it's more than Idaho offers. Under Idaho law, "a defendant's mental condition "shall not be a defense to any charge of criminal conduct." John Delling, who suffers from acute paranoid schizophrenia, asked the US Supreme Court to consider whether Idaho's lack of an insanity defense is unconstitutional. On appeal from his conviction for two counts of murder, Delling argued that due process entitled him to present an insanity defense. Today, SCOTUS denied that cert petition. (Three justices did dissent from that denial, though.)
I can't say I'm surprised or even that disappointed. I don't think we'd get a good ruling on this issue from the current court. I'm just overall disheartened that this is even an issue. I'm tired of having to fight the wrong-headed view that "mental illness is no excuse." I'm frustrated with the way we have criminalized mental illness in this country. Mental illness actually is an excuse and insanity should always be a defense. Anyone who says otherwise can't have much experience with someone suffering profound mental illness. They can't have met someone who just can't stop the voices or who sees squirrels in the bathroom or who sees people climbing out of walls. They can't have known someone who cannot distinguish between what is real and what is not.
We would never say someone with bronchitis should just control the coughing. We would not think it was that person's fault if he couldn't. No, we'd be smart enough to get that even with cough syrup, someone with bronchitis is gonna cough. (I happen to know a little about this. And, man, when my body wants to cough, there isn't anything in this world I can do to stop it.) But somehow, when the disease is in the brain, all of a sudden, people insist that the sick person really ought to know better, ought to be able to control the disease, ought to be treated like a criminal if she can't. It's so illogical, it makes my head spin.
The Hinckley court got it absolutely right. The state of Idaho has got it absolutely dead wrong. I wish I could come up with the magic explanation, the right sequence of words that would make the anti-insanity defense folks get it. But since the tide doesn't seem to be turning back toward compassion for those with mental illnesses and the public still seems inclined to believe mental illness is no excuse for criminal behavior, I guess for tonight I'll look on the bright side: at least with this cert denial, we won't get really bad law from the current Supreme Court.
Hinckley was not convicted of crimes in the 1981 shooting, but was found not guilty by reason of insanity. To this day, he remains committed to a psychiatric facility, though he does now earn the occasional day or weekend pass. To me, this seems an entirely acceptable resolution to the sad, strange attempted assassination committed by a delusional man with serious mental health issues. But to a lot of people, the result was an insult. After that verdict, legislatures around the country started thinking about ways to change the law so that people couldn't "get off" on insanity pleas.
The ripple effects of the Hinckley case are still being felt today. Literally today, as the United States Supreme Court today ruled on a petition for cert out of Idaho. In the debate about what, if anything, to change in response to the Hinckley outcry, a couple of states went so far as to abandon the insanity defense entirely, including Idaho. My state, Kansas, is one of the others to have completely abandoned the old, standard insanity defense, though Kansas is less severe than Idaho. In Kansas, a defendant can argue that she suffered from a mental disease or defect that prevented her from forming the requisite criminal intent. It's something. It basically means that to be found not guilty of stabbing a person to death, the defendant has to think she was cutting cabbage, but it's more than Idaho offers. Under Idaho law, "a defendant's mental condition "shall not be a defense to any charge of criminal conduct." John Delling, who suffers from acute paranoid schizophrenia, asked the US Supreme Court to consider whether Idaho's lack of an insanity defense is unconstitutional. On appeal from his conviction for two counts of murder, Delling argued that due process entitled him to present an insanity defense. Today, SCOTUS denied that cert petition. (Three justices did dissent from that denial, though.)
I can't say I'm surprised or even that disappointed. I don't think we'd get a good ruling on this issue from the current court. I'm just overall disheartened that this is even an issue. I'm tired of having to fight the wrong-headed view that "mental illness is no excuse." I'm frustrated with the way we have criminalized mental illness in this country. Mental illness actually is an excuse and insanity should always be a defense. Anyone who says otherwise can't have much experience with someone suffering profound mental illness. They can't have met someone who just can't stop the voices or who sees squirrels in the bathroom or who sees people climbing out of walls. They can't have known someone who cannot distinguish between what is real and what is not.
We would never say someone with bronchitis should just control the coughing. We would not think it was that person's fault if he couldn't. No, we'd be smart enough to get that even with cough syrup, someone with bronchitis is gonna cough. (I happen to know a little about this. And, man, when my body wants to cough, there isn't anything in this world I can do to stop it.) But somehow, when the disease is in the brain, all of a sudden, people insist that the sick person really ought to know better, ought to be able to control the disease, ought to be treated like a criminal if she can't. It's so illogical, it makes my head spin.
The Hinckley court got it absolutely right. The state of Idaho has got it absolutely dead wrong. I wish I could come up with the magic explanation, the right sequence of words that would make the anti-insanity defense folks get it. But since the tide doesn't seem to be turning back toward compassion for those with mental illnesses and the public still seems inclined to believe mental illness is no excuse for criminal behavior, I guess for tonight I'll look on the bright side: at least with this cert denial, we won't get really bad law from the current Supreme Court.
Saturday, November 24, 2012
How many times are ridiculous things going to happen to me, leaving me and others shaking our heads thinking, "Surely, Sarah's luck has got to change soon?" before we all just come to accept that, no, my luck is really never going to change?
For crying out loud, this is gettin' to be ri-god-damn-diculous.
For crying out loud, this is gettin' to be ri-god-damn-diculous.
Tuesday, November 20, 2012
Skimp now... well, you know the rest
I have never understood the mindset of people who will do anything to save a buck now, without regard to the consequences. I'm not talking about people who truly can't afford anything but the cheapest option but people who have the resources to make different choices but steadfastly refuse to spend a nickel they don't have to.
Take shoes as an example. Some people balk at the idea of spending money on shoes when you can buy shoes cheaply at big box stores. I've done both. And let me assure you, the expensive shoes last a lot longer. So if the expensive shoes last for years but I have to replace the cheap ones every few months, am I really saving any money by buying the cheap ones? Buy better windows and your utility bills will be lower. Buy better building materials and you won't have to do as much maintenance.
Sometimes, refusing to spend money now just costs you a whole lot more down the road. Like refusing to fund early childhood development programs like Head Start. Refusing to pay for school breakfast and lunch programs. Refusing to fund public schools and state universities. Sure, you'll save those bucks now, but what are you costing yourself in the long run? It may be tempting to save your pennies and not pay for an oil change now, but you'll be damn sorry when your engine seizes , leaving you carless and with a repair bill in the thousands.
If we don't pay for things like Head Start, public schools, and those nutritional programs, what are we costing ourselves? Well, eventually we'll be paying for high school drop-outs on public assistance. And we'll be paying to deal with crimes and punishments. Why spend hundreds of thousands of dollars to incarcerate a young man when we maybe could have avoided those costs by spending tens of thousands of dollars to help him achieve success in school, which might well have kept him from committing a crime in the first place? (Why am I including lunch and breakfast programs? Check out some of the research on the correlation between childhood nutrition and success in schools.)
Likewise, skimping money on indigent defense now may feel good, may feel efficient. But in the long run, it will cost the taxpayers a whole lot more. If you refuse to pay appointed counsel a livable amount, if you refuse to pay salaried public defenders as much as you pay prosecutors, and if you overload them with so many cases they can't name all their clients, you're going to get poor performances from attorneys. And when you get poor performances from attorneys, all sorts of bad things can happen. You can wind up wrongly convicting innocent people when you have an exhausted, overworked attorney who doesn't have the training, the time, and the resources to find the holes in the state's case. You can wind up having to do the whole trial again when a court realizes that the defense attorney's performance was so poor, it prejudiced the defendant's right to a fair trial. So all that skimping and penny-counting can wind up costing a whole lot more in the end.
Being smart and efficient with money and other resources requires something more than "don't spend, don't spend, don't spend!" Doing it right the first time, whether it be educating a child or decorating your house or trying to convict an alleged murderer, is the most cost effective thing you can do. It boggles the mind that people don't get that.
Take shoes as an example. Some people balk at the idea of spending money on shoes when you can buy shoes cheaply at big box stores. I've done both. And let me assure you, the expensive shoes last a lot longer. So if the expensive shoes last for years but I have to replace the cheap ones every few months, am I really saving any money by buying the cheap ones? Buy better windows and your utility bills will be lower. Buy better building materials and you won't have to do as much maintenance.
Sometimes, refusing to spend money now just costs you a whole lot more down the road. Like refusing to fund early childhood development programs like Head Start. Refusing to pay for school breakfast and lunch programs. Refusing to fund public schools and state universities. Sure, you'll save those bucks now, but what are you costing yourself in the long run? It may be tempting to save your pennies and not pay for an oil change now, but you'll be damn sorry when your engine seizes , leaving you carless and with a repair bill in the thousands.
If we don't pay for things like Head Start, public schools, and those nutritional programs, what are we costing ourselves? Well, eventually we'll be paying for high school drop-outs on public assistance. And we'll be paying to deal with crimes and punishments. Why spend hundreds of thousands of dollars to incarcerate a young man when we maybe could have avoided those costs by spending tens of thousands of dollars to help him achieve success in school, which might well have kept him from committing a crime in the first place? (Why am I including lunch and breakfast programs? Check out some of the research on the correlation between childhood nutrition and success in schools.)
Likewise, skimping money on indigent defense now may feel good, may feel efficient. But in the long run, it will cost the taxpayers a whole lot more. If you refuse to pay appointed counsel a livable amount, if you refuse to pay salaried public defenders as much as you pay prosecutors, and if you overload them with so many cases they can't name all their clients, you're going to get poor performances from attorneys. And when you get poor performances from attorneys, all sorts of bad things can happen. You can wind up wrongly convicting innocent people when you have an exhausted, overworked attorney who doesn't have the training, the time, and the resources to find the holes in the state's case. You can wind up having to do the whole trial again when a court realizes that the defense attorney's performance was so poor, it prejudiced the defendant's right to a fair trial. So all that skimping and penny-counting can wind up costing a whole lot more in the end.
Being smart and efficient with money and other resources requires something more than "don't spend, don't spend, don't spend!" Doing it right the first time, whether it be educating a child or decorating your house or trying to convict an alleged murderer, is the most cost effective thing you can do. It boggles the mind that people don't get that.
Sunday, November 18, 2012
Defending Kim K
Kim Kardashian made news this weekend. Not for some outfit she wore or club she went to or anything like that. She got a lot of attention for a couple of tweets she posted about the Israeli-Palestinian conflict. I guess she should have known that saying anything about that situation might get her attention and put her in the middle of all sorts of spiraling debates as people can get pretty heated on that topic.
But then I saw what her tweets were. She first wrote that she was praying for everyone in Israel. And then she wrote that she was praying for everyone in Palestine.
And for this she had to remove the tweets and issue an apology. For praying for people. She didn't express an opinion about the conflict. Didn't say she wanted one side to prevail. Just said she was praying for people on both sides. Generally suggesting she wishes them well, wants peace, doesn't want people to die. And somehow this generated controversy.
Isn't that a pretty sad statement? That there are people who can get mad that someone would have the nerve to pray for people on both sides of a conflict? I, for one, am offended that people were offended. There are good and decent and innocent people on both sides. And it's good to want none of them to get hurt or suffer. But, heck, I don't even want the bad people on either side to get hurt. I think it's ok to root for that, too. It's not ok to be mad at someone for rooting for that. Sheesh, that's not something anyone should ever have to defend.
But then I saw what her tweets were. She first wrote that she was praying for everyone in Israel. And then she wrote that she was praying for everyone in Palestine.
And for this she had to remove the tweets and issue an apology. For praying for people. She didn't express an opinion about the conflict. Didn't say she wanted one side to prevail. Just said she was praying for people on both sides. Generally suggesting she wishes them well, wants peace, doesn't want people to die. And somehow this generated controversy.
Isn't that a pretty sad statement? That there are people who can get mad that someone would have the nerve to pray for people on both sides of a conflict? I, for one, am offended that people were offended. There are good and decent and innocent people on both sides. And it's good to want none of them to get hurt or suffer. But, heck, I don't even want the bad people on either side to get hurt. I think it's ok to root for that, too. It's not ok to be mad at someone for rooting for that. Sheesh, that's not something anyone should ever have to defend.
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