Posts
Public 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.*
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."
*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.
Friday, May 30, 2014
Wednesday, May 28, 2014
#Yesallwomen includes this woman
Every 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.
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."
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.
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.
Since the #Yesallwomen trend began, I've had lots of tweets in my head, things I would contribute.
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.
Because there are so very, very many reasons to post to #Yesallwomen.
Because we equate female genitalia with weakness and male genitalia with strength.
Because a powerful woman must have a pair of brass ones.
Because a baseball player with a bad arm throws like a girl.
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.
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.
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.)
Because just this spring, there was a huge discussion amongst legal bloggers about what women should wear in court.
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.
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.
Because even some women say things like "women are awful to each other," perpetuating the idea that women are catty, gossipy, unworthy of friendship.
Because people still think boys should be taught "don't hit girls" instead of just "don't hit."
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.
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.
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.
And I still have more. So many more.
Because medical research is still disproportionately geared toward men, leaving women more vulnerable.
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.
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.
Because prison rape jokes are made constantly. Some even actively wish prison rape on particular defendants. All sexual violence is unacceptable.
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.
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.
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.)
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.
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.
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.
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."
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.
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.
Since the #Yesallwomen trend began, I've had lots of tweets in my head, things I would contribute.
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.
Because there are so very, very many reasons to post to #Yesallwomen.
Because we equate female genitalia with weakness and male genitalia with strength.
Because a powerful woman must have a pair of brass ones.
Because a baseball player with a bad arm throws like a girl.
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.
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.
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.)
Because just this spring, there was a huge discussion amongst legal bloggers about what women should wear in court.
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.
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.
Because even some women say things like "women are awful to each other," perpetuating the idea that women are catty, gossipy, unworthy of friendship.
Because people still think boys should be taught "don't hit girls" instead of just "don't hit."
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.
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.
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.
And I still have more. So many more.
Because medical research is still disproportionately geared toward men, leaving women more vulnerable.
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.
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.
Because prison rape jokes are made constantly. Some even actively wish prison rape on particular defendants. All sexual violence is unacceptable.
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.
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.
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.)
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.
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.
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.
Tuesday, May 27, 2014
Umm...
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.
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.
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.
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.
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.
Today's order list had a more unusual "order" on it in the form of a short "Per Curiam" 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.
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.
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.
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."
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.
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.)
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.
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.
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.
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.
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.
Today's order list had a more unusual "order" on it in the form of a short "Per Curiam" 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.
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.
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.
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."
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.
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.)
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.
Monday, May 5, 2014
Good news
Sometimes, people do the right thing and it's a beautiful sight. Remember Mike Anderson? 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 let him go. 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.)
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.
Enjoy your family, Mike Anderson.
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.
Enjoy your family, Mike Anderson.
Saturday, May 3, 2014
Yep, 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 before. And before that. And before 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.
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.
Here's a story about yet another person accused of shaking a baby to death 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.
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.
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.
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.
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.
Here's a story about yet another person accused of shaking a baby to death 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.
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.
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.
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.
Tuesday, April 29, 2014
Umm, Egypt, you might want to rethink that...
In the United States, we have a pretty robust set of rules and practices we have to follow before we can execute someone. (In theory, anyway.) As we are basically the only major free nation with a democratically-elected government left who executes people as often as we do, it stands to reason that we'd at least have a better process than pretty much any other death penalty nation.
One of our (alleged) cornerstone principles is that each defendant is entitled to individualized consideration at sentencing. Furthermore, the key word in all death penalty cases is reliability. In theory, at least, we put a lot of stock in the notion that every piece that goes into reaching that ultimate sentence has to be reliable. It's cumbersome, expensive, time-consuming, and still yields mistaken verdicts.
But at least it's a whole lot better than this. In a trial that lasted minutes (yes, you read that right: minutes), an Egyptian court sentenced 683 people to death. This is the second such mass death verdict in recent weeks in Egypt, both by the same court. In a sign of its total reasonableness, the court in the first case later commuted many of those death sentences, so just under 500 defendants are now facing only life in prison while 37 had their death sentences upheld. So perhaps in another week or two, the court will also commute 600 or so of these death sentences to life in prison, thus leaving a much more reasonable 80 or so death sentences. Because that would make it ok.
Note also that all of the defendants are part of the Muslim Brotherhood or its supporters and that the political motivation appears to be to suppress this segment of the electorate before a May 26-27 election.
So, yes, the US does the death penalty a whole hell of a lot better than Egypt. Go us! We're better than a chaotic country currently ruled by the military, after a coup of an elected president, who is now trying to crack down on a particular portion of the electorate in advance of the next presidential election!
(But we still do it pretty poorly and should stop doing it all together.)
One of our (alleged) cornerstone principles is that each defendant is entitled to individualized consideration at sentencing. Furthermore, the key word in all death penalty cases is reliability. In theory, at least, we put a lot of stock in the notion that every piece that goes into reaching that ultimate sentence has to be reliable. It's cumbersome, expensive, time-consuming, and still yields mistaken verdicts.
But at least it's a whole lot better than this. In a trial that lasted minutes (yes, you read that right: minutes), an Egyptian court sentenced 683 people to death. This is the second such mass death verdict in recent weeks in Egypt, both by the same court. In a sign of its total reasonableness, the court in the first case later commuted many of those death sentences, so just under 500 defendants are now facing only life in prison while 37 had their death sentences upheld. So perhaps in another week or two, the court will also commute 600 or so of these death sentences to life in prison, thus leaving a much more reasonable 80 or so death sentences. Because that would make it ok.
Note also that all of the defendants are part of the Muslim Brotherhood or its supporters and that the political motivation appears to be to suppress this segment of the electorate before a May 26-27 election.
So, yes, the US does the death penalty a whole hell of a lot better than Egypt. Go us! We're better than a chaotic country currently ruled by the military, after a coup of an elected president, who is now trying to crack down on a particular portion of the electorate in advance of the next presidential election!
(But we still do it pretty poorly and should stop doing it all together.)
Wednesday, April 23, 2014
In which Justice Scalia temporarily turned my world upside down (but restored order 24 hours later)
I'm always weirded out when I find myself agreeing with Justice Scalia. (Same with George Will, who once in a while doesn't piss me off.) There are just some people whose world views are so diametrically opposed to my own, it doesn't seem possible there could be any overlap. Scalia thinks actual innocence isn't a basis for not executing someone. (Really, he more rejects the idea that innocent people are ever convicted in the first place.) Scalia hints that he thinks the idea of suppressing evidence from unconstitutional searches and seizures has no basis in the 4th Amendment.
So it kinda throws me for a loop when I read a 4th Amendment case in which Scalia writes the opinion I wholeheartedly agree with. Like yesterday, when the majority of the Supreme Court approved a traffic stop, but Scalia joined the three women and even wrote the dissent, pointing out how awful the majority opinion is.
In a nutshell, here's what happened. 911 call was made by someone (a woman, apparently) telling the operator that she was run off the road by another driver. The caller described the truck, including the license plate, and the location. Within about 20 minutes, a state trooper was behind the truck, about the right distance away from where the incident allegedly originally happened. Through the trooper followed the pick-up truck for 5 minutes or so without witnessing any traffic infractions (a feat in and of itself, really), the trooper pulled over the truck. The trooper smelled marijuana (as they tend to) and found a large quantity in the bed of the truck.
Cue the suppression motion. The defense, naturally, argued the stop itself was unjustified, thus rendering all of the evidence subsequently found fruits of the poisonous tree that are inadmissible in court. Now, the most important thing for you to know about a suppression motion is that the defense bears no burden. Instead, the state bears the burden of proving that the stop and/or search did not violate the Constitution. Remember that. The state has to produce evidence, has to convince the court. So say the state wants to argue that the contraband on the defendant's person would have been found anyway because the defendant was arrested pursuant to a valid arrest warrant and upon check-in at the jail, the defendant's possessions would have been logged in. In that case, the prosecuting attorney can't just make that argument. Rather, the prosecutor has to put on evidence at a hearing of the jail's practices of inventorying an arrestee's possessions.
In the context of our case, the state bore the burden of proving that the information the trooper possessed at the time he pulled over the defendant's truck was sufficient to establish reasonable suspicion that a crime had been committed. It's so critical that the trooper himself didn't claim to have seen anything, not a single swerve, a crossing into the shoulder or over the center line, no un-signaled turns or lane changes, no speeding, nothing. The only reason the trooper pulled the truck over was that 911 call.
Now, I don't know about the rest of you, but the times when I have called 911, I have been asked for my name and given it. In other situations, I have come to realize the local police definitely identify my cell phone number with my address, and all with my name. Most of us don't get burner phones, change our numbers all the time, and have phone numbers that aren't connected to our names. Most of us are on the grid because most of us aren't Ron Swanson. Even if I were to call 911 in California, my phone number should show up on the 911 system and would ultimately be traceable back to me, even if I didn't give my name.
In this case, though, the official court position is that the 911 caller's identity is unknown. In defending the stop of the truck, the prosecution never identified the caller. The prosecution didn't call the 911 dispatcher to the stand at the suppression hearing, either, so the 911 phone call wasn't admissible in court. For purposes of this case, then, the caller is anonymous. This matters.
Historically, an anonymous tipster has been viewed in courts with less reliability than an identified accuser. This is true for a number of reasons that all stem from one basis point: an identified accuser can be checked out while an anonymous tipster has no such accountability. If the tipster identifies herself as Emily Starr of New Moon, well then the police can go to New Moon farm and talk to Emily later. They can suss out if Emily has some grudge against the defendant that might make her claims against him less credible. Now, there are valid reasons for a tipster not to identify herself, to feel safer remaining anonymous. But it does present a credibility problem for investigators, so courts have required independent corroboration before an anonymous tipster can justify a stop.
For example, the actual Supreme Court case on a corroborated anonymous tip involved a detailed phone tip wherein the caller identified the car and driver, detailed where the car would be going at a certain time, and said what drugs would be found in the car. At the appointed time, police saw the car as described, driving the described route. The caller's ability to predict future behavior was corroboration.
In this case, we neither had a name of the caller nor any corroboration or prediction of future behavior. It seems possible the prosecution might have had a name for the caller, but the prosecution didn't present that at the suppression hearing. Remember that the prosecution has the burden of proof, so it was up to the prosecution and the prosecution alone to produce the tipster's identity. They chose not to, thus we are stuck in the legal posture of treating the tipster as anonymous. Then there's the responding trooper, who followed the truck for 5 minutes without seeing any traffic violations, so we are stuck in the legal posture of that anonymous tipster's tip being the only justification for the stop.
But a majority of the Supreme Court still found a way to declare this stop was legal. They were wrong and we should all feel a little less free. All for reasons that Scalia ably set forth in his dissenting opinion. The tipster could have been someone with a grudge against the driver. The tipster could have made the entire incident up. The tipster alone shouldn't be enough for any government actor to detain free citizens. Duh. Scalia totally got it while Kennedy and Breyer, justices I'm more used to agreeing with, totally whiffed. I don't quite know what to do with that.
Fortunately for me, the world was restored to its proper order today as Scalia wrote a majority opinion that probably destroyed most criminal defendants' access to real federal court review of their convictions and sentences. Maybe I'm being too pessimistic, but it kinda feels like federal habeas corpus died today.* That's much more what I expect from Scalia.
*If you practice in the world of federal habeas and can talk me down from my Woodall ledge, please feel free.
So it kinda throws me for a loop when I read a 4th Amendment case in which Scalia writes the opinion I wholeheartedly agree with. Like yesterday, when the majority of the Supreme Court approved a traffic stop, but Scalia joined the three women and even wrote the dissent, pointing out how awful the majority opinion is.
In a nutshell, here's what happened. 911 call was made by someone (a woman, apparently) telling the operator that she was run off the road by another driver. The caller described the truck, including the license plate, and the location. Within about 20 minutes, a state trooper was behind the truck, about the right distance away from where the incident allegedly originally happened. Through the trooper followed the pick-up truck for 5 minutes or so without witnessing any traffic infractions (a feat in and of itself, really), the trooper pulled over the truck. The trooper smelled marijuana (as they tend to) and found a large quantity in the bed of the truck.
Cue the suppression motion. The defense, naturally, argued the stop itself was unjustified, thus rendering all of the evidence subsequently found fruits of the poisonous tree that are inadmissible in court. Now, the most important thing for you to know about a suppression motion is that the defense bears no burden. Instead, the state bears the burden of proving that the stop and/or search did not violate the Constitution. Remember that. The state has to produce evidence, has to convince the court. So say the state wants to argue that the contraband on the defendant's person would have been found anyway because the defendant was arrested pursuant to a valid arrest warrant and upon check-in at the jail, the defendant's possessions would have been logged in. In that case, the prosecuting attorney can't just make that argument. Rather, the prosecutor has to put on evidence at a hearing of the jail's practices of inventorying an arrestee's possessions.
In the context of our case, the state bore the burden of proving that the information the trooper possessed at the time he pulled over the defendant's truck was sufficient to establish reasonable suspicion that a crime had been committed. It's so critical that the trooper himself didn't claim to have seen anything, not a single swerve, a crossing into the shoulder or over the center line, no un-signaled turns or lane changes, no speeding, nothing. The only reason the trooper pulled the truck over was that 911 call.
Now, I don't know about the rest of you, but the times when I have called 911, I have been asked for my name and given it. In other situations, I have come to realize the local police definitely identify my cell phone number with my address, and all with my name. Most of us don't get burner phones, change our numbers all the time, and have phone numbers that aren't connected to our names. Most of us are on the grid because most of us aren't Ron Swanson. Even if I were to call 911 in California, my phone number should show up on the 911 system and would ultimately be traceable back to me, even if I didn't give my name.
In this case, though, the official court position is that the 911 caller's identity is unknown. In defending the stop of the truck, the prosecution never identified the caller. The prosecution didn't call the 911 dispatcher to the stand at the suppression hearing, either, so the 911 phone call wasn't admissible in court. For purposes of this case, then, the caller is anonymous. This matters.
Historically, an anonymous tipster has been viewed in courts with less reliability than an identified accuser. This is true for a number of reasons that all stem from one basis point: an identified accuser can be checked out while an anonymous tipster has no such accountability. If the tipster identifies herself as Emily Starr of New Moon, well then the police can go to New Moon farm and talk to Emily later. They can suss out if Emily has some grudge against the defendant that might make her claims against him less credible. Now, there are valid reasons for a tipster not to identify herself, to feel safer remaining anonymous. But it does present a credibility problem for investigators, so courts have required independent corroboration before an anonymous tipster can justify a stop.
For example, the actual Supreme Court case on a corroborated anonymous tip involved a detailed phone tip wherein the caller identified the car and driver, detailed where the car would be going at a certain time, and said what drugs would be found in the car. At the appointed time, police saw the car as described, driving the described route. The caller's ability to predict future behavior was corroboration.
In this case, we neither had a name of the caller nor any corroboration or prediction of future behavior. It seems possible the prosecution might have had a name for the caller, but the prosecution didn't present that at the suppression hearing. Remember that the prosecution has the burden of proof, so it was up to the prosecution and the prosecution alone to produce the tipster's identity. They chose not to, thus we are stuck in the legal posture of treating the tipster as anonymous. Then there's the responding trooper, who followed the truck for 5 minutes without seeing any traffic violations, so we are stuck in the legal posture of that anonymous tipster's tip being the only justification for the stop.
But a majority of the Supreme Court still found a way to declare this stop was legal. They were wrong and we should all feel a little less free. All for reasons that Scalia ably set forth in his dissenting opinion. The tipster could have been someone with a grudge against the driver. The tipster could have made the entire incident up. The tipster alone shouldn't be enough for any government actor to detain free citizens. Duh. Scalia totally got it while Kennedy and Breyer, justices I'm more used to agreeing with, totally whiffed. I don't quite know what to do with that.
Fortunately for me, the world was restored to its proper order today as Scalia wrote a majority opinion that probably destroyed most criminal defendants' access to real federal court review of their convictions and sentences. Maybe I'm being too pessimistic, but it kinda feels like federal habeas corpus died today.* That's much more what I expect from Scalia.
*If you practice in the world of federal habeas and can talk me down from my Woodall ledge, please feel free.
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