In New Orleans, they do things FAST. And some of the details tend to get blurred. Read this newspaper article from New Orleans:
The gist of it is that Luhron Gorman was in New Orleans with a friend, and they were running from the police. At one point Mr. Gorman and friend went into someone else's house to hide, wherein the friend robbed that family at gunpoint. The friend got away with $60. Mr. Gorman was arrested 2 weeks after the crime from a crimestoppers tip, and he starts confessing. He says he had no part in THIS robbery. He merely went in to make sure his friend did not hurt the 97 year old resident, and he never displayed HIS gun. But he also confessed that he had stolen the gun that he had on him from somewhere else.
Mr. Gorman was tried for 4 crimes within 24 hours, among which is the home invasion robbery and the possession of a stolen firearm. Although it is not evident from the article how it happened, his attorney, Public Defender Jessica LaCambre, "tried unsuccessfully to stop the testimony" of Mr. Gorman. I assume that that means that she told him not to testify, and objected when he insisted on taking the stand, etc. It appears that Mr. Gorman felt it necessary to testify, against the advice of his attorney, and that he didn't do well enough in testifying to save himself from being convicted. The jury convicted him of everything. Mr. Gorman now faces 99 years for the robbery, and 10 to 20 for the gun. At some point Mr. Gorman accused his Public defender, Jessica LaCambre, of having an inappropriate relationship with the prosecutor (I don't know what that means, but it always sounds bad), and of failing, I guess, to negotiate him a better plea deal. The article speculates that Mr.Gorman did this to either get a mistrial or lay the groundwork for an appeal.
Look, Mr. Gorman sounds pretty guilty of SOMETHING, because he confessed to numerous things. And he likely slit his own throat when he confessed to the police. Who knows how much he hurt himself by testifying, often a difficult proposition. I don't know anything about Public Defender Jessica LaCambre, but I will assume that, as a PD, she was doing what she thought was right for Mr. Gorman, trying to dodge one or two icebergs on what was obviously the Titanic. I've been accused of having an inappropriate relationship with DDA's before by clients because, God forbid, I was talking to the DDA about their case when they couldn't hear (or someone else's case, for that matter). Clients facing years in prison may be a bit paranoid, or even a lot paranoid, but, WOULDN'T YOU BE? I mean, if someone you don't know, who you don't trust, who you don't pay, is defending you it is reasonable to distrust that person. And with the horror stories defendants tell each other (too many of them true) about overworked PDs with no time, no experience, no compassion, no competence, it is all understandable. I don't know if Public Defender Jessica LaCambre, Mr. Gorman's PD, did anything wrong here. But I can say, WITH CERTAINTY, that this was a difficult case, a difficult client, difficult facts, and no client control. Bad day for the attorney, worse day for the client. I think we've all been there.
But.
Here's the things that interested and bothered me about the article. 1) The article states that the (bad) verdict capped off a contentious "Daylong trial." Really? All this was in a single day, so large a day that it had to be "capped off?". I don't know how things work in New Orleans, but wasn't there other things she could have done? If Mr. Gorman was going to testify, was there some mental defense that might have been pursued? Were there perhaps some legal flaws with the confession? Wasn't there SOMETHING that would have militated more than one day of trial? If 1 day is all that it takes in New Orleans to get, in essence a death sentence (by incarceration), then this is a bad jurisdiction indeed. That is a freight train that moves WAY TOO FAST. I my guy's getting that much time, I will make the DDA will earn it, thank you very much. And earning it means taking more than one day.
2) The jury convicted Mr. Gorman of the home invasion robbery by a vote of 10 to 2. The robbery that's going to get him 99 years. 10 to 2. 99 years. DO YOU HEAR WHAT I AM SAYING?!? A non-unanimous jury gets him 99 years? That's outrageous!!! What the fuck?!? And maybe Mr. Gorman had something going here, because two jurors surely DID buy what he was saying. I am being a little petty here, but maybe Public Defender Jessica LaCambre might have devoted a wee bit of time challenging this rigged procedure. It boggles my mind that a guy can get 99 years from a non unanimous jury. Oh, and since this was a grueling daylong trial, perhaps more time might have been spent picking the jury. Pure speculation here, but since Mr. Gorman is Black (his photo is in the article), and since New Orleans went through massive racial changes in its jury pool after Katrina (lots of African Americans left New Orleans after Katrina), maybe, just maybe, there were some Batson v. Kentucky issues here worth exploring? It's speculation, but I'm willing to bet 10 to 2 that I am right.
3) At one point Mr. Gorman was removed from the court because he was "disruptive," probably because of all those accusations he made against his Public Defender. According to the newspaper article, no explanation was given to the jury for his absence from the courtroom. Later, during that same (grueling) daylong trial, he was brought back into court so that he could be ID'd by the victim, after which Mr. Gorman testified. That sure doesn't sound right to me. Seems like there should have been a mistrial here, or at least a really strong admonishment by the judge.
Dennis R. Wilkins
The New PD Dude
Saturday, September 03, 2011
Thursday, September 01, 2011
Connick v. Thompson (2011) and Arizona v. Youngblood (1988) - Linked in Outrage
I wanted to add an issue that I did not address in my last post about Connick v. Thompson (2011). To clarify, the facts of Connick v. Thompson are that D was convicted of an armed robbery. Later, D was prosecuted for murder, and D elected not to testify at his murder trial because of the prior robbery, and the fact that it could be used to impeach him. The robbery was used to elevate the murder to a death penalty case. It turns out that D didn't do the original robbery, and the DA knew it - they had overwhelming evidence that the robbery was committed by someone else, but they did not turn that evidence over to the defense. Blood from the perpetrator had been found, and the crime lab tested it, and found that the blood type was B. D's blood type was type O. The DDA never told the defense attorney about the blood of the perpetrator that was found and even tested, and the defense never knew to ask. The DDA had the completed test in his trial folder, showing that the perpetrator had type B blood, when the robbery trial began. No evidence was ever shown that the DDA knew what D's actual blood type was.
D was sentenced to death. After serving 18 years behind bars (He was very close to being executed at one point), D found out about the withheld evidence. With it, he was able to get both his murder and robbery convictions reversed. Because the evidence was so weak on his murder case, he was acquitted when the DA retried him. The robbery case was dismissed outright.
Thompson sued the DA's office, claiming that the DA deprived him of his civil rights by falsely prosecuting him, specifically, that the prosecuting DDA, as well as 3 other DDA's, knew about the withheld evidence, knew that it was exculpatory, knew that it proved another person committed the robbery, knew that that greatly impacted his murder case, but they deliberately withheld the evidence. The lawsuit was very successful. The jury sided with Thompson, and awarded him $14 million, one million for each year he was on death row.
The Supreme Court, in a 5-4 opinion written by Justice Thomas, reversed the lawsuit, and basically said that Thompson could NEVER succeed based on the facts of the case. Thompson had never shown that the DA ever knew about the withholding of evidence. The defense had never shown a "pattern of Brady v. Maryland (withholding exculpatory evidence) violations," required by the court to establish liability for the DA's office. In other words, the Court required Thompson to show that the DA had known about a pattern and practice of disregarding Brady duties and then failed to train the DDA's to properly comply with Brady duties. The fact that the New Orleans DA had had 4 other cases reversed for Brady violations was insufficient to show a failure to train the DDA's. Fun fact: Thompson never sued the DDA's who committed these egregious acts because, as the US Supreme Court has ruled before, individual DDA's working for the DA's office cannot be held personally liable for their acts. Final result for Thompson - he was framed by 4 different DDA's, spent 18 years in prison, 14 of them on death row, and he got ZILCH, even when a jury of New Orleans awarded him $14 million.
Here's why I write this post. In Justice Scalia's concurring opinion, joined by Justice Alito, Scalia wrote that, essentially, Brady material is purely that which is known by the prosecutor to be "favorable to the accused." In particular, because the DA had a blood test in this case that fixed the blood type of the perpetrator as type B, because the DDA did not know that D's blood type was type O, the DDA did not need to disclose it. In other words, when the prosecutor knows that there was blood taken at a crime scene that is likely from the perpetrator, and the police have had the crime scene test it, the DDA has no duty to turn it over UNLESS the DDA knows that D has a different blood type.
But here's the kicker - Scalia then quotes Arizona v. Youngblood (1988) 488 U.S. 51, 58, for the proposition that the prosecution team need not do ANY testing or preserving of evidence, and can only be dinged when the withholding is done in bad faith. Youngblood was a terrible decision, 6-3, that Scalia had joined. It turns out that it was a really, REALLY bad decision. You see, Larry Youngblood, the man with one eye who was convicted of kidnapping and raping a young boy for 3 days, and then convicted despite the fact that police failed to even TRY to get the semen evidence examined and instead had it "spoil" because they failed to refrigerate it, thus preventing Larry Youngblood's attorneys from having it analyzed themselves, yeah, THAT Larry Youngblood.
You see, after Larry Youngblood was convicted, the Arizona Supreme Court realized this was wrong and reversed his conviction, and let him go. Well, the U.S. Supremes stepped in, reversed the Arizona Supreme Court, and had Larry Youngblood sent back to jail. Although the majority opnion was not as obvious as Justice Stevens in its dislike for Larry Youngblood and the obviousness of his guilt (read Justice Stevens' opinion - it really is that bad. He basically says that, although he has misgivings with the majority opinion and the rule it was laying down, Larry Youngblood got a really fair trial and he was certainly guilty.), it is still pretty bad. The gist is: Hey, police are busy, they have no duty to help defendants and acquire evidence at the scene, or test it, or do much of anything to help the defendant because, well, we have a pretty busy system here. We can't go around questioning everything, especially convictions like these. So long as the police didn't CLEARLY have it in for Larry Youngblood, and they were just doing business like they always do, then Larry Youngblood is out of luck.
In 1998, Larry Youngblood got out of prison. Poor guy, while he was out of prison after the Arizona Supreme Court had temporarily freed him, he robbed someone of some stuff. With the extra time from the rape that he was convicted of, he didn't get out of prison until 1998. When he got out, he was sort of busy (and a little pissed off), and he failed to register as a sex offender. He was prosecuted for that, and his original attorney from his rape case, convinced of his innocence, handled the case again. This time, with new DNA techniques not available in the 1980's, Larry Youngblood was excluded as the rapist. Got that? It WASN'T him. It was another guy, someone who was in prison in Texas and who later pled guilty to the rape. Larry Youngblood dies in 2007, a broken man. From the state of Arizona he ZERO in compensation for his years behind bars. Here's the story: http://articles.latimes.com/2011/apr/03/nation/la-na-court-innocence-20110403
Let me clarify my outrage. Justice Thomas and 4 other justices shit on Thompson and kick out his lawsuit. They tell him that, despite the fact that he was pretty much framed (I don't know what else you call it) on a robbery, which directly resulted in him getting the death penalty and sitting 18 years in prison, 14 of them on death row, despite the fact that when retried he was found not guilty of the murder (the robbery was outright dismissed), despite the fact that he sued the DA and got a jury to agree with him and give him $14 million dollars, he gets NOTHING. You see, the DA didn't know what his staff was doing, and it isn't his fault that they had no idea what exculpatory evidence even is. Oh, and dn't bother even TRYING to sue the 4 DDA's who saw the blood test results, knew what they meant and how exculpatory they were, yet refused to disclose them. You see, those guys are all immune from lawsuits because they were DDA's. Then, in the concurring opinion to this travesty, written by Scalia and joined by Alito, Scalia basically says, hey, what are you guys in the dissent talking about? This wasn't even Brady evidence, you see, and the DDA didn't even HAVE to disclose the blood test, because no one ever showed that he KNEW that it wasn't defendant's blood type. Yes, the police collected the blood. Yes, the police knew that it cmae from the perpetrator. yes, the crime lab had it tested. But, apparently, the DDA who prosecuted the D never bothered to find out what D's blood type was, and certainly never told the defense about said evidence. Scalia then quotes a rule which fucked a guy back in 1988 and laid down a bad broad rule to prevent the "obviously guilty" from requiring the cops to, you know, do their jobs. But Scalia never even mentions or alludes to the fact that in the very case in which that bad broad rule was laid down, that "obviously guilty" defendant, Larry Youngblood, was actually innocent.
BTW - For whatever it's worth, and it probably is worth little, both Mr. Thompson and Mr. Youngblood are black, and poor. I honestly believe that the latter fact is a LOT more important than the former, but that is how I see it. I have no problem calling our justice system racist, but they ar much more fervantly and militantly against the poor.
They have no shame. They really, honestly, truly, have no shame.
Denis R. Wilkins
The New PD Dude
D was sentenced to death. After serving 18 years behind bars (He was very close to being executed at one point), D found out about the withheld evidence. With it, he was able to get both his murder and robbery convictions reversed. Because the evidence was so weak on his murder case, he was acquitted when the DA retried him. The robbery case was dismissed outright.
Thompson sued the DA's office, claiming that the DA deprived him of his civil rights by falsely prosecuting him, specifically, that the prosecuting DDA, as well as 3 other DDA's, knew about the withheld evidence, knew that it was exculpatory, knew that it proved another person committed the robbery, knew that that greatly impacted his murder case, but they deliberately withheld the evidence. The lawsuit was very successful. The jury sided with Thompson, and awarded him $14 million, one million for each year he was on death row.
The Supreme Court, in a 5-4 opinion written by Justice Thomas, reversed the lawsuit, and basically said that Thompson could NEVER succeed based on the facts of the case. Thompson had never shown that the DA ever knew about the withholding of evidence. The defense had never shown a "pattern of Brady v. Maryland (withholding exculpatory evidence) violations," required by the court to establish liability for the DA's office. In other words, the Court required Thompson to show that the DA had known about a pattern and practice of disregarding Brady duties and then failed to train the DDA's to properly comply with Brady duties. The fact that the New Orleans DA had had 4 other cases reversed for Brady violations was insufficient to show a failure to train the DDA's. Fun fact: Thompson never sued the DDA's who committed these egregious acts because, as the US Supreme Court has ruled before, individual DDA's working for the DA's office cannot be held personally liable for their acts. Final result for Thompson - he was framed by 4 different DDA's, spent 18 years in prison, 14 of them on death row, and he got ZILCH, even when a jury of New Orleans awarded him $14 million.
Here's why I write this post. In Justice Scalia's concurring opinion, joined by Justice Alito, Scalia wrote that, essentially, Brady material is purely that which is known by the prosecutor to be "favorable to the accused." In particular, because the DA had a blood test in this case that fixed the blood type of the perpetrator as type B, because the DDA did not know that D's blood type was type O, the DDA did not need to disclose it. In other words, when the prosecutor knows that there was blood taken at a crime scene that is likely from the perpetrator, and the police have had the crime scene test it, the DDA has no duty to turn it over UNLESS the DDA knows that D has a different blood type.
But here's the kicker - Scalia then quotes Arizona v. Youngblood (1988) 488 U.S. 51, 58, for the proposition that the prosecution team need not do ANY testing or preserving of evidence, and can only be dinged when the withholding is done in bad faith. Youngblood was a terrible decision, 6-3, that Scalia had joined. It turns out that it was a really, REALLY bad decision. You see, Larry Youngblood, the man with one eye who was convicted of kidnapping and raping a young boy for 3 days, and then convicted despite the fact that police failed to even TRY to get the semen evidence examined and instead had it "spoil" because they failed to refrigerate it, thus preventing Larry Youngblood's attorneys from having it analyzed themselves, yeah, THAT Larry Youngblood.
You see, after Larry Youngblood was convicted, the Arizona Supreme Court realized this was wrong and reversed his conviction, and let him go. Well, the U.S. Supremes stepped in, reversed the Arizona Supreme Court, and had Larry Youngblood sent back to jail. Although the majority opnion was not as obvious as Justice Stevens in its dislike for Larry Youngblood and the obviousness of his guilt (read Justice Stevens' opinion - it really is that bad. He basically says that, although he has misgivings with the majority opinion and the rule it was laying down, Larry Youngblood got a really fair trial and he was certainly guilty.), it is still pretty bad. The gist is: Hey, police are busy, they have no duty to help defendants and acquire evidence at the scene, or test it, or do much of anything to help the defendant because, well, we have a pretty busy system here. We can't go around questioning everything, especially convictions like these. So long as the police didn't CLEARLY have it in for Larry Youngblood, and they were just doing business like they always do, then Larry Youngblood is out of luck.
In 1998, Larry Youngblood got out of prison. Poor guy, while he was out of prison after the Arizona Supreme Court had temporarily freed him, he robbed someone of some stuff. With the extra time from the rape that he was convicted of, he didn't get out of prison until 1998. When he got out, he was sort of busy (and a little pissed off), and he failed to register as a sex offender. He was prosecuted for that, and his original attorney from his rape case, convinced of his innocence, handled the case again. This time, with new DNA techniques not available in the 1980's, Larry Youngblood was excluded as the rapist. Got that? It WASN'T him. It was another guy, someone who was in prison in Texas and who later pled guilty to the rape. Larry Youngblood dies in 2007, a broken man. From the state of Arizona he ZERO in compensation for his years behind bars. Here's the story: http://articles.latimes.com/2011/apr/03/nation/la-na-court-innocence-20110403
Let me clarify my outrage. Justice Thomas and 4 other justices shit on Thompson and kick out his lawsuit. They tell him that, despite the fact that he was pretty much framed (I don't know what else you call it) on a robbery, which directly resulted in him getting the death penalty and sitting 18 years in prison, 14 of them on death row, despite the fact that when retried he was found not guilty of the murder (the robbery was outright dismissed), despite the fact that he sued the DA and got a jury to agree with him and give him $14 million dollars, he gets NOTHING. You see, the DA didn't know what his staff was doing, and it isn't his fault that they had no idea what exculpatory evidence even is. Oh, and dn't bother even TRYING to sue the 4 DDA's who saw the blood test results, knew what they meant and how exculpatory they were, yet refused to disclose them. You see, those guys are all immune from lawsuits because they were DDA's. Then, in the concurring opinion to this travesty, written by Scalia and joined by Alito, Scalia basically says, hey, what are you guys in the dissent talking about? This wasn't even Brady evidence, you see, and the DDA didn't even HAVE to disclose the blood test, because no one ever showed that he KNEW that it wasn't defendant's blood type. Yes, the police collected the blood. Yes, the police knew that it cmae from the perpetrator. yes, the crime lab had it tested. But, apparently, the DDA who prosecuted the D never bothered to find out what D's blood type was, and certainly never told the defense about said evidence. Scalia then quotes a rule which fucked a guy back in 1988 and laid down a bad broad rule to prevent the "obviously guilty" from requiring the cops to, you know, do their jobs. But Scalia never even mentions or alludes to the fact that in the very case in which that bad broad rule was laid down, that "obviously guilty" defendant, Larry Youngblood, was actually innocent.
BTW - For whatever it's worth, and it probably is worth little, both Mr. Thompson and Mr. Youngblood are black, and poor. I honestly believe that the latter fact is a LOT more important than the former, but that is how I see it. I have no problem calling our justice system racist, but they ar much more fervantly and militantly against the poor.
They have no shame. They really, honestly, truly, have no shame.
Denis R. Wilkins
The New PD Dude
Thursday, August 25, 2011
Actually Innocent? We Don't Give a Damn.
This is a short post. I haven't posted in a year, so a lot of things happened that I didn't comment on. Here is a big one. In Connick v. Thompson (2011), the conservative majority of the U.S. Supreme Court ruled that even though a defendant was the victim of a prosecutor withholding exculpatory evidence, and a jury awarded him $14 million for the many years he spent on death row, he instead should receive nothing. You see, prosecutors are immune from lawsuits, and just because a prosecutor deliberately convicts an innocent man, withholding Brady material in the process, that doesn't mean you can sue his employer.
Here is a copy of the article from Slate.com: http://www.slate.com/id/2290036/ Enjoy.
Dennis R. Wilkins
The New PD Dude
Here is a copy of the article from Slate.com: http://www.slate.com/id/2290036/ Enjoy.
Dennis R. Wilkins
The New PD Dude
Wednesday, August 24, 2011
Another Update on William Richards, FVI00826 - Actual Innocence is a Sham
I posted more than a year ago about an excellent granting of a habeas corpus petition by Judge Brian McCarville. The defendant is William Richards. His case number is FVI00826. The essence of the case is that he was accused of murdering his wife by bashing her head in. After three mistrials, he was convicted and sentenced to life imprisonment. Then he was able to obtain favorable DNA evidence, and show that there were serious with the evidence presented against him at his trial. I mean, serious. Like, they framed him. Oh, and an expert that was hot and heavy against him kind of fully recanted his testimony and/or it was all shown to be BS. Mostly anyway. One of the few times it has happened, and certainly the only time that I have seen it, Judge McCarville granted the habeas corpus petition. It is CERTAIN that if he is retried, he cannot be convicted. Not with what we now know.
Then, on 11-19-2010, the California Court of Appeal wrote and unpublished decision REVERSING Judge McCarville's excellent opinion. Appelleate Court Justice Hollenhorst wrote the opinion, and he was joined by McKinster and Richli. All three are right wing Republican tools. The opinion is as terrible as it is disingenuous. Here is my summary of the opinion:
Too bad, so sad. We don't believe your new "evidence." You may have fooled Judge McCarville, but you won't fool us. This new "evidence" should have been brought forward at trial, and in fact some of it was. So it isn't really new "evidence." And the jury didn't believe the defense then, so, again, too bad, so sad. Oh, and just because someone who is crucial to your conviction is later found to be a complete liar and kind of, sort of, mostly admits it, to some extent or another, again, too bad, so sad. You lose. Yeah, we suppose that "actually innocent" people are kind of, sort of entitled at least to a new trial. But not your guy. Oh, and did I mention that we think your new "evidence" isn't very good? Oh, and Judge McCarville didn't apply the correct standard. We could tell you the correct standard, but we are pretty busy up here, denying all your silly motions. The standard is something like: The new evidence must undermine the prosecution's entire case and unerringly point towrd his innocence. We realize this is an impossible standard, but we're going to hold you to it. Oh, and stop spending so many days on these stupid hearings for murderers, Judge McCarville - we're just going to crap on whatever you rule on anyway.
Oh, and there were a LOT of case citations - I'll spare you those. I suppose that I shouldn't get too indignant over this local travesty of justice, but I can't help myself. Let me clarify: I KNOW Judge McCarville. He isn't some bleeding heart liberal. He calls them mostly like he sees them, but like most judges in this county, he is pro-prosecution. Remember, they are all elected, and they don't get re-elected by letting people charged with crimes go free. If Judge McCarville spends the time to do a habeas corpus petition and grants it, you had better damned sure believe that that was the right thing to do.
The case is currently before the California Supreme Court. I don't expect the Court to reverse the Appellate Court. I have just about zero faith in the California Supreme Court on criminal justice issues. They are a mostly zombie-controlled, Republican-appointed bench. I met the Chief Justice recently and she seemed nice, but she is another former prosecutor plucked from convicting people and put on the bench. Some of the justices aren't too bad. I like some of Justice Kennard's opinions. Justice Werdegar too, sometimes. The newest Justice, who hasn't been confirmed yet, Goodwin Liu, is promising. But he is just one guy. I am giving the California Supreme Court short shrift here because they have written some awful opinions in the criminal defense world for about 16 years now, when Rose Bird was forced off the bench. If they reverse the 4th Circuit, Division 2, I will be amazed. I will personally sing their praises. But I fully expect them to follow Justice Scalia's dissent (joined by Justice Thomas) in In re Davis (2009) 130 S.Ct. 1, wherein Scalia stated: "This Court has NEVR held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is "actually innocent."
In other words: Fuck you. We don't care how "actually innocent" you may be. So long as you got a "fair trial," you will be punished. Period. Finality is king. Never mind whether witnesses recant their testimony. Who cares? By the way, the remedy in the Troy Davis case was to remand the case back to the district court for a new habeas petition, which everyone agreed was without any power. Said petition was promptly denied, and the denial was then affirmed by the Eleventh Circuit. Troy Davis is now getting closer to execution. He got his "actual innocence hearing," and he got to call various witness that showed 9 of 11 witnesses who testified against him at trial recanted their testimony. 9 of 11? Really? Would 10 of 12 have done the trick? How about if all 11 had recanted? The U.S. Supreme Court refused to hear the Mr. Davis's appeal from the habeas petition denial. Here is a good discussion of where Troy Davis is at now: http://www.habeasbook.com/2011/04/another-dead-end-for-troy-anthony-davis/
The lesson here? Don't get convicted the first time. Because if you do, even if you can later prove you were actually inocent, to just about ANY degree of certainty, so long as you got a "fair trial," you're guilty. Period.
Dennis R. Wilkins
Oh, and I suppose that I am now the New PD Dude.
Then, on 11-19-2010, the California Court of Appeal wrote and unpublished decision REVERSING Judge McCarville's excellent opinion. Appelleate Court Justice Hollenhorst wrote the opinion, and he was joined by McKinster and Richli. All three are right wing Republican tools. The opinion is as terrible as it is disingenuous. Here is my summary of the opinion:
Too bad, so sad. We don't believe your new "evidence." You may have fooled Judge McCarville, but you won't fool us. This new "evidence" should have been brought forward at trial, and in fact some of it was. So it isn't really new "evidence." And the jury didn't believe the defense then, so, again, too bad, so sad. Oh, and just because someone who is crucial to your conviction is later found to be a complete liar and kind of, sort of, mostly admits it, to some extent or another, again, too bad, so sad. You lose. Yeah, we suppose that "actually innocent" people are kind of, sort of entitled at least to a new trial. But not your guy. Oh, and did I mention that we think your new "evidence" isn't very good? Oh, and Judge McCarville didn't apply the correct standard. We could tell you the correct standard, but we are pretty busy up here, denying all your silly motions. The standard is something like: The new evidence must undermine the prosecution's entire case and unerringly point towrd his innocence. We realize this is an impossible standard, but we're going to hold you to it. Oh, and stop spending so many days on these stupid hearings for murderers, Judge McCarville - we're just going to crap on whatever you rule on anyway.
Oh, and there were a LOT of case citations - I'll spare you those. I suppose that I shouldn't get too indignant over this local travesty of justice, but I can't help myself. Let me clarify: I KNOW Judge McCarville. He isn't some bleeding heart liberal. He calls them mostly like he sees them, but like most judges in this county, he is pro-prosecution. Remember, they are all elected, and they don't get re-elected by letting people charged with crimes go free. If Judge McCarville spends the time to do a habeas corpus petition and grants it, you had better damned sure believe that that was the right thing to do.
The case is currently before the California Supreme Court. I don't expect the Court to reverse the Appellate Court. I have just about zero faith in the California Supreme Court on criminal justice issues. They are a mostly zombie-controlled, Republican-appointed bench. I met the Chief Justice recently and she seemed nice, but she is another former prosecutor plucked from convicting people and put on the bench. Some of the justices aren't too bad. I like some of Justice Kennard's opinions. Justice Werdegar too, sometimes. The newest Justice, who hasn't been confirmed yet, Goodwin Liu, is promising. But he is just one guy. I am giving the California Supreme Court short shrift here because they have written some awful opinions in the criminal defense world for about 16 years now, when Rose Bird was forced off the bench. If they reverse the 4th Circuit, Division 2, I will be amazed. I will personally sing their praises. But I fully expect them to follow Justice Scalia's dissent (joined by Justice Thomas) in In re Davis (2009) 130 S.Ct. 1, wherein Scalia stated: "This Court has NEVR held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is "actually innocent."
In other words: Fuck you. We don't care how "actually innocent" you may be. So long as you got a "fair trial," you will be punished. Period. Finality is king. Never mind whether witnesses recant their testimony. Who cares? By the way, the remedy in the Troy Davis case was to remand the case back to the district court for a new habeas petition, which everyone agreed was without any power. Said petition was promptly denied, and the denial was then affirmed by the Eleventh Circuit. Troy Davis is now getting closer to execution. He got his "actual innocence hearing," and he got to call various witness that showed 9 of 11 witnesses who testified against him at trial recanted their testimony. 9 of 11? Really? Would 10 of 12 have done the trick? How about if all 11 had recanted? The U.S. Supreme Court refused to hear the Mr. Davis's appeal from the habeas petition denial. Here is a good discussion of where Troy Davis is at now: http://www.habeasbook.com/2011/04/another-dead-end-for-troy-anthony-davis/
The lesson here? Don't get convicted the first time. Because if you do, even if you can later prove you were actually inocent, to just about ANY degree of certainty, so long as you got a "fair trial," you're guilty. Period.
Dennis R. Wilkins
Oh, and I suppose that I am now the New PD Dude.
Monday, August 22, 2011
I was fooled
I admit it. I supported Barack Obama. I was fooled. He is a corporatist, and he does not have the interests of most Americans at heart. Don't get me wrong - I am a Democrat, a liberal, a progressive, and I can't stand any of the Republicans running. But I am really and truly disappointed in Barack Obama. I will vote for him come next November. I have to. Any of the Republican pinheads running will appoint monstrosities to the U.S. Supreme Court. Justices Elene Kagan and Sonya Sotomayor have turned out okay for the criminal defense field. Not great, but it could have been a LOT worse.
But it will be with a sad and heavy heart that I will push the button for this man. He cares only about his campaign contributions, and he isn't interested in helping the poor, or even the middle calss. Hillary would have been better. Joe Biden wouldn't have, of course, but at least it would have been honest. That said, Biden would have protected unions. In fairness, I was pulling for John Edwards while he was putting it into that other woman, while his dying wife was, well, dying. So I've been fooled before.
All of that said, I can honestly say that as I have grown older, it seems clearer and clearer that our system is hopelessly corrupted toward the wealthy, and capable of only a minimum of fairness toward those seeking justice who don't have cash. More often than not, the poor who are charged with a crime get jailed and have to await a trial that stretches further and further out. The division isn't between guilt or innocence many times, but on whether the person charged is savvy enough to know the rules of the system. But overall, the system that I have seen, and keep seeing is blanketed with a hateful attitude toward the poor, a distaste for those of color, and most seriously, an anipathy towards the rule of law, the presumption of innocence and the requirement that DA's have to prove guilt beyond a reasonable doubt.
I also see the Public Defender as an entity more and more under attack. Whatever my feelings toward a particular administration, there is a constant and growing fear that the Public Defender will be outsourced to those who will do the job far cheaper, and with just about zero care for clients.
I will talk later.
Dennis R. Wilkins
The Guest Blogger
Public Defender Dude
But it will be with a sad and heavy heart that I will push the button for this man. He cares only about his campaign contributions, and he isn't interested in helping the poor, or even the middle calss. Hillary would have been better. Joe Biden wouldn't have, of course, but at least it would have been honest. That said, Biden would have protected unions. In fairness, I was pulling for John Edwards while he was putting it into that other woman, while his dying wife was, well, dying. So I've been fooled before.
All of that said, I can honestly say that as I have grown older, it seems clearer and clearer that our system is hopelessly corrupted toward the wealthy, and capable of only a minimum of fairness toward those seeking justice who don't have cash. More often than not, the poor who are charged with a crime get jailed and have to await a trial that stretches further and further out. The division isn't between guilt or innocence many times, but on whether the person charged is savvy enough to know the rules of the system. But overall, the system that I have seen, and keep seeing is blanketed with a hateful attitude toward the poor, a distaste for those of color, and most seriously, an anipathy towards the rule of law, the presumption of innocence and the requirement that DA's have to prove guilt beyond a reasonable doubt.
I also see the Public Defender as an entity more and more under attack. Whatever my feelings toward a particular administration, there is a constant and growing fear that the Public Defender will be outsourced to those who will do the job far cheaper, and with just about zero care for clients.
I will talk later.
Dennis R. Wilkins
The Guest Blogger
Public Defender Dude
Saturday, July 17, 2010
Connect the Dots
I haven't posted in a long time, so let me make a short post to observe a few "connect the dots" observations - I want to connect two pieces of news and sort of juxtapose them, so that people can draw their own conclusions.
First, there have been numerous articles about Chief Justice George retiring from the California Supreme Court. There is a long list of his "accomplishments." Here is an example: http://www.mercurynews.com/politics-government/ci_15514924?nclick_check=1 I am sure he is proud of himself. And it is true that he tried hard to modernize California's huge judicial system and make it more uniform. But along with his kudos, he should get knocks for some of the many, many crappy decisions that his court has made that defy logic, most especially in the realm of criminal justice. The most recent example: People v. Low - link here: http://www.courtinfo.ca.gov/opinions/documents/S151961.PDF , and People v. Gastello - link here: http://www.courtinfo.ca.gov/opinions/documents/S153170.PDF. Both were handed down on June 24, 2010. Both are listed in PDF format because everyone has Adobe Acrobat.
In both Gastello and Low the defendants were charged with a statute that California has called Penal Code section 4573. In essence, it is illegal to bring drugs into a jail. But what if a person is arrested, and has drugs on them, and THEY are brought to a jail? Well, in the intake area of pretty much all jail facilities in Californi, there is a sign that advises the defendant of PC 4573, and essentially tells the defendant that he has to fess up that he has drugs, or else he faces a straight felony when the deputies find them.
In California, possession of marijuana is a misdemeanor, unless it's for sale. Possession of methamphetamine can be a misdemeanor, at the DA's discretion. Possession of cacaine is a stright felony. But a defendant facing a charge of simple possession of any drug, even cocaine, can often get into PC 1000 diversion, or Prop. 36, or even drug court, depending on his/her record. Most simple possession cases do not result in prison time, not even for 3rd strikers. Remember, I said most simple possession cases - some still get prison based on their prior strikes, their records, other charges, etc. It all depends on the facts, the DDA, the court, the temperature outside, the relative humidity, the defendant correctly guessing the number of angels that can dance on the head of a pin, etc. But not so with a PC 4573 charge. That is a straight felony for which there is no diversion, or Prop. 36. Maybe drug court. But certainly a felony that cannot be reduced to a misdemeanor at some point. Thus, having a simple possession charge amped up to a stright felony PC 4573 charge can be a serious issue. In Low, the defendant lied to the cop, claiming that he had no drugs on him. A search found the drugs. In Gastello the defendant said nothing, after having been Mirandized at some point, and the drugs were found in a search. In both cases the defendants were convicted on straight felonies. Low was the longer opinion, dealing with the various Constitutional and statutory issues. Gastello is much shorter and pretty applies Low.
In both the Low and Gastello cases the California Supreme Court, the George court, discussed the Fifth Amendment right to remain silent, and the idea that neither of the defendants "voluntarily" went to jail. Both defendants would much rather have been somewhere else. Thus, they didn't "bring drugs into a jail" - they were brought to jail while possessing drugs. The George court ruled against both Gastello and Low, and pretty much gave short shrift to the Fifth Amendment argument. In Gastello, in fact, the better of the two cases (he remained silent, after all), the George court simply could not understand how the Fifth Amendment was implicated at all. They acted as if they had never heard of the "cruel trilemma" - the basis of Miranda. The "cruel trilemma" is as follows: A defendant has three choices when questioned by the police. 1) He can remain silent, and be thought guilty, because if he wasn't guilty he would have said something, 2) He can confess, thereby proving his guilt, or 3) He can lie, which will likely convict him as well, because his lies will be found out. This is one of the bases for the 5th Amendment and for Miranda. Like it or hate it, it is blackletter law. Instead, the Goerge court said that the defendant was correctly prosecuted for PC 4573 BECAUSE he remained silent - a "nontestimonial act." Beg pardon? His REFUSAL to confess his guilt was a "nontestimonial act" for which he could be prosecuted? Wow - that really turns the law on its head, huh?
The George court simply couldn't understand how the Fifth Amendment was implicated at all. I mean, if the defendant has drugs on him, and reads that sign, all he has to do at that point, to prevent a charge of PC 4573, is to confess to the cops that he has drugs. And, wallah, there can be no PC 4573 charge. Wow, I never thought of that. What a great idea. Next time, I will advise my client who faces a potential crime and who is afraid of the police charging him with a more serious crime to confess his crime to the police and waive his Miranda rights. That way, he won't have to worry about new charges. And I guess then I can wait to be disbarred or something.
Is the George court really this dumb? The only way to prevent a PC 4573 charge is to confess, and that doesn't implicate the Fifth Amendment? At least one unanimous appellate court thought it did. Oh, and of seven members on the Goerge court, guess how many dissented. None. Yeah, I guess that happens when everyone uses the same law clerks. Note that both Gastello and Low were written by the court's most conservative member, J. Baxter. But George gets to assign the opinion to whomever he wants, since the opinion was unanimous. And I am sure that George also had some influence on the opinion, again because it was unanimous.
Chief Justice George announced his retirement now so that Governor Arnold Schwarzenegger, a guy with the lowest approval ratings ever (even lower than Gray Davis before his recall), can name his replacement. I suppose that this is just in case Jerry Brown, the Democrat who put Rose Bird onto the court, wins over Meg Whitman in November (that race is a tossup at this point). It is no wonder that California's judiciary, especially it Supreme Court, has become the laughingstock of the free world. The trial judges in California hand out horribly punitive sentences, then the appellate court and the California Supreme Court simply affirms them, all the while the prison system is in tatters due to massive growth. Meanwhile, the Legislature dithers and passes tougher and tougher laws with longer and longer sentences, with the electorate every once in awhile one-upping them. It is no wonder that our criminal justice system has become the shame of the free world.
So, connect the dots. Chief Justice George is retiring, and the newspapers say he is a really great guy because he helped convict the Hillside Strangler. But many of his court's opinions, especially many of his court's recent opinions, really suck and are pretty much devoid of honest reasoning. Yeah, I suppose that many in California will really miss Chief Justice George. I won't.
Dennis Wilkins
Deputy Public Defender
The Guest PD Blogger
First, there have been numerous articles about Chief Justice George retiring from the California Supreme Court. There is a long list of his "accomplishments." Here is an example: http://www.mercurynews.com/politics-government/ci_15514924?nclick_check=1 I am sure he is proud of himself. And it is true that he tried hard to modernize California's huge judicial system and make it more uniform. But along with his kudos, he should get knocks for some of the many, many crappy decisions that his court has made that defy logic, most especially in the realm of criminal justice. The most recent example: People v. Low - link here: http://www.courtinfo.ca.gov/opinions/documents/S151961.PDF , and People v. Gastello - link here: http://www.courtinfo.ca.gov/opinions/documents/S153170.PDF. Both were handed down on June 24, 2010. Both are listed in PDF format because everyone has Adobe Acrobat.
In both Gastello and Low the defendants were charged with a statute that California has called Penal Code section 4573. In essence, it is illegal to bring drugs into a jail. But what if a person is arrested, and has drugs on them, and THEY are brought to a jail? Well, in the intake area of pretty much all jail facilities in Californi, there is a sign that advises the defendant of PC 4573, and essentially tells the defendant that he has to fess up that he has drugs, or else he faces a straight felony when the deputies find them.
In California, possession of marijuana is a misdemeanor, unless it's for sale. Possession of methamphetamine can be a misdemeanor, at the DA's discretion. Possession of cacaine is a stright felony. But a defendant facing a charge of simple possession of any drug, even cocaine, can often get into PC 1000 diversion, or Prop. 36, or even drug court, depending on his/her record. Most simple possession cases do not result in prison time, not even for 3rd strikers. Remember, I said most simple possession cases - some still get prison based on their prior strikes, their records, other charges, etc. It all depends on the facts, the DDA, the court, the temperature outside, the relative humidity, the defendant correctly guessing the number of angels that can dance on the head of a pin, etc. But not so with a PC 4573 charge. That is a straight felony for which there is no diversion, or Prop. 36. Maybe drug court. But certainly a felony that cannot be reduced to a misdemeanor at some point. Thus, having a simple possession charge amped up to a stright felony PC 4573 charge can be a serious issue. In Low, the defendant lied to the cop, claiming that he had no drugs on him. A search found the drugs. In Gastello the defendant said nothing, after having been Mirandized at some point, and the drugs were found in a search. In both cases the defendants were convicted on straight felonies. Low was the longer opinion, dealing with the various Constitutional and statutory issues. Gastello is much shorter and pretty applies Low.
In both the Low and Gastello cases the California Supreme Court, the George court, discussed the Fifth Amendment right to remain silent, and the idea that neither of the defendants "voluntarily" went to jail. Both defendants would much rather have been somewhere else. Thus, they didn't "bring drugs into a jail" - they were brought to jail while possessing drugs. The George court ruled against both Gastello and Low, and pretty much gave short shrift to the Fifth Amendment argument. In Gastello, in fact, the better of the two cases (he remained silent, after all), the George court simply could not understand how the Fifth Amendment was implicated at all. They acted as if they had never heard of the "cruel trilemma" - the basis of Miranda. The "cruel trilemma" is as follows: A defendant has three choices when questioned by the police. 1) He can remain silent, and be thought guilty, because if he wasn't guilty he would have said something, 2) He can confess, thereby proving his guilt, or 3) He can lie, which will likely convict him as well, because his lies will be found out. This is one of the bases for the 5th Amendment and for Miranda. Like it or hate it, it is blackletter law. Instead, the Goerge court said that the defendant was correctly prosecuted for PC 4573 BECAUSE he remained silent - a "nontestimonial act." Beg pardon? His REFUSAL to confess his guilt was a "nontestimonial act" for which he could be prosecuted? Wow - that really turns the law on its head, huh?
The George court simply couldn't understand how the Fifth Amendment was implicated at all. I mean, if the defendant has drugs on him, and reads that sign, all he has to do at that point, to prevent a charge of PC 4573, is to confess to the cops that he has drugs. And, wallah, there can be no PC 4573 charge. Wow, I never thought of that. What a great idea. Next time, I will advise my client who faces a potential crime and who is afraid of the police charging him with a more serious crime to confess his crime to the police and waive his Miranda rights. That way, he won't have to worry about new charges. And I guess then I can wait to be disbarred or something.
Is the George court really this dumb? The only way to prevent a PC 4573 charge is to confess, and that doesn't implicate the Fifth Amendment? At least one unanimous appellate court thought it did. Oh, and of seven members on the Goerge court, guess how many dissented. None. Yeah, I guess that happens when everyone uses the same law clerks. Note that both Gastello and Low were written by the court's most conservative member, J. Baxter. But George gets to assign the opinion to whomever he wants, since the opinion was unanimous. And I am sure that George also had some influence on the opinion, again because it was unanimous.
Chief Justice George announced his retirement now so that Governor Arnold Schwarzenegger, a guy with the lowest approval ratings ever (even lower than Gray Davis before his recall), can name his replacement. I suppose that this is just in case Jerry Brown, the Democrat who put Rose Bird onto the court, wins over Meg Whitman in November (that race is a tossup at this point). It is no wonder that California's judiciary, especially it Supreme Court, has become the laughingstock of the free world. The trial judges in California hand out horribly punitive sentences, then the appellate court and the California Supreme Court simply affirms them, all the while the prison system is in tatters due to massive growth. Meanwhile, the Legislature dithers and passes tougher and tougher laws with longer and longer sentences, with the electorate every once in awhile one-upping them. It is no wonder that our criminal justice system has become the shame of the free world.
So, connect the dots. Chief Justice George is retiring, and the newspapers say he is a really great guy because he helped convict the Hillside Strangler. But many of his court's opinions, especially many of his court's recent opinions, really suck and are pretty much devoid of honest reasoning. Yeah, I suppose that many in California will really miss Chief Justice George. I won't.
Dennis Wilkins
Deputy Public Defender
The Guest PD Blogger
Wednesday, May 26, 2010
Further Reflections on the Marijuana Legalization Initiative in California
I posted in the wee hours (I couldn't sleep) about my beliefs about the coming marijuana legalization initiative on the November 2010 ballot. I haven't found the actual text of the initiative, or even the number just yet, but here is a link to a site called Ballotpedia, a website that seems to have a fair description of the initiative: http://ballotpedia.org/wiki/index.php/California_Marijuana_Legalization_Initiative_(2010)
My post this morning generated a pretty cool response from a site called Legal Blog Watch. Here is the post: http://legalblogwatch.typepad.com/legal_blog_watch/2010/05/public-defender-laments-inevitable-failure-of-pot-legalization-referendum.html I am treated pretty faily by the writer of the piece, an attorney named Eric Lipman. His discussion of what I said is on his blog, at the site listed above. He takes me to task a bit for what I said, but he reminded me of something improtant: Don't make a comment on the web unless you are prepared to support it. And even if you can support it, prepare to take some heat anyway. Read his post - it's pretty good.
Well, then I started looking and I found the Marijuana Policy Project at: http://www.mppcalifornia.org/home/ I must admit that the articles seem pretty well-reasoned on that site. And there is a neat little video by a guy named Mike Meno at http://www.mpp.org/ This young guy is VERY well spoken. In fact, he should be the spokesperson for at least some of the legalization effort.
My opinion on whether the initiative will pass hasn't changed - the recent drop of support for the legalization initiative indicates to me that Californians are still pretty skeptical. A comment to my last post at Public Defender Dude illustrates this. I believe that many people will let fear guide their decision-making. After al, we don't know how bad things will get when we open this box, right? And when the vast overwhelming majority of police agencies say that marijuana legalization is bad, well, who wants to disagree with the police, right?
But if spokespeople like Mike Meno are able to get their voices out there, and if prominent people actually actually start to take note of some of the silly things that those on the prohibition side are saying, then maybe things will change. For example, the U.S. Drug Czar Gil Kerklikowske just said within the last few days that, as to marijuana, the Obama administration is "not exploring prohibition." Well, that's just plain stupid. What we currently have, like it or hate it, IS prohibition. The issue is whether the marijuana prohibition should continue. Because I don't believe that the U.S. Drug Czar is an idiot (No one appoints a complete idiot for such a high profile office in this day and age), I have to believe that he is a liar. How could he not know what prohibition means? If more high-profile discussions start about the rhetoric on the other side, maybe, just maybe, legalization will stand a chance.
We can only hope, right?
Dennis R. Wilkins
The Guest PD Blogger
My post this morning generated a pretty cool response from a site called Legal Blog Watch. Here is the post: http://legalblogwatch.typepad.com/legal_blog_watch/2010/05/public-defender-laments-inevitable-failure-of-pot-legalization-referendum.html I am treated pretty faily by the writer of the piece, an attorney named Eric Lipman. His discussion of what I said is on his blog, at the site listed above. He takes me to task a bit for what I said, but he reminded me of something improtant: Don't make a comment on the web unless you are prepared to support it. And even if you can support it, prepare to take some heat anyway. Read his post - it's pretty good.
Well, then I started looking and I found the Marijuana Policy Project at: http://www.mppcalifornia.org/home/ I must admit that the articles seem pretty well-reasoned on that site. And there is a neat little video by a guy named Mike Meno at http://www.mpp.org/ This young guy is VERY well spoken. In fact, he should be the spokesperson for at least some of the legalization effort.
My opinion on whether the initiative will pass hasn't changed - the recent drop of support for the legalization initiative indicates to me that Californians are still pretty skeptical. A comment to my last post at Public Defender Dude illustrates this. I believe that many people will let fear guide their decision-making. After al, we don't know how bad things will get when we open this box, right? And when the vast overwhelming majority of police agencies say that marijuana legalization is bad, well, who wants to disagree with the police, right?
But if spokespeople like Mike Meno are able to get their voices out there, and if prominent people actually actually start to take note of some of the silly things that those on the prohibition side are saying, then maybe things will change. For example, the U.S. Drug Czar Gil Kerklikowske just said within the last few days that, as to marijuana, the Obama administration is "not exploring prohibition." Well, that's just plain stupid. What we currently have, like it or hate it, IS prohibition. The issue is whether the marijuana prohibition should continue. Because I don't believe that the U.S. Drug Czar is an idiot (No one appoints a complete idiot for such a high profile office in this day and age), I have to believe that he is a liar. How could he not know what prohibition means? If more high-profile discussions start about the rhetoric on the other side, maybe, just maybe, legalization will stand a chance.
We can only hope, right?
Dennis R. Wilkins
The Guest PD Blogger
The Marijuana Legalization Initiative on the November Ballot
It's on the ballot for November 2010. It is a great idea, and it is a well-written initiative. The drug war has failed, [Here is the May 11, 2010 AP article: http://www.google.com/hostednews/ap/article/ALeqM5iLZNYd6C9SGpa2oeiZIqT-HKVrCQD9FMCM103 - and here's what Grits for Breakfast, an excellent PD Blog had to say: http://gritsforbreakfast.blogspot.com/2010/05/news-flash-drug-war-colossal-failure.html ]and the marijuana front has been an even bigger failure. Marijuana is not even as dangerous as alcohol, which has been legal since Prohibition.
And it will fail at the ballot box. Here's why:
1) Marijuana legalization is soundly opposed by most old people. Old people vote religiously. California politics has been skewed by the opinions of older voters for decades. There is no reason for older people to want to legalize marijuana - they can get vicodin easily with their prescrption drug benefits. And alcohol is even more easily available at the corner store/local liquor barn. Oh, and one last thing - all old people know very well that only DFH's use marijuana. And anything that DFH's want, old people are opposed to.
2) There are no good spokespersons for legalizing marijuana. Take a look on the web and you will find that of the many, MANY opinions that are written in response to articles about marijuana legalization, the ones in favor are usually riddled with spelling and grammatical errors. What does this mean? They are "normal people." Not NORMAL, as in the National Organization for the Reform of Marijuana Laws, but just ordinary, non-college-educated folk. Who want to smoke pot. Most rational people who have a degree of some kind won't say ANYTHING about marijuana legalization because they fear being branded as "one of them." You know - druggies. DFH's. Pot smokers. And as just about ANYONE will tell you, that is the kiss of death for just about any professional. Oh, an occasional professional person can admit that he/she smokes pot, and might even be caught with/smoking pot. But to advocate for legalization publicly? No, that professional will suffer. I won't suffer in my profession because I already defend murderers, rapists and child molesters - supporting legalization is the least of my professional "sins."
Full disclosure: I don't smoke pot. I would smoke pot occasionally, if it were legal. But it isn't, so I don't and I won't. Why? Because I am a Deputy Public Defender, an officer of the court, and I don't want to get my house searched. I don't need the headlines. And I genuinely do my best to obey the law, however stupid it may be at times.
But I despise the ruins my country has made of itself over the ever-escalating drug war. I despise the corruption in the various police departments that the new prohibition has brought us. I despise the fact that the public schools, public schools that my children go to and will continue to go to, lack funds because my government has to feed the criminal justice beast, of which the drug war plays no small part. I got a letter a week ago that said that the school district can no longer afford to bus one of my children because of budget cuts. If given the choice, I would much rather not have ANYONE do time for marijuana-related "crimes," so that our state can afford to bus children who should be bused to school.
3) Police agencies and prison guards are, or soon will be, all over this one. They NEED marijuana offenses to be a crime. If decriminalization were to happen, within 2 years we would see the effects: nothing. That's right - nothing adverse will happen. People will smoke pot like they currently do, and the only guys who will see business cuts are the marijuana dealers, the various growers (the profit incentive will be greatly reduced, so it won't be as lucrative), the middle men, the police agencies who used to enforce the drug war laws, the prison guards who will have less peope to guard, etc. The various police, sheriffs, and the California Correctional Peace Officer's Association, will end up contributing heavily against this initiative.
Another reason they will attack it? God forbid it works, because then it will become a gateway of a different kind. A gateway to legalization of almost all drugs. Remember when the speed limit was 55 MPH throughout the country? That took forever to change, with several states essentially stating that they would abandon a portion of their highway funds by allowing cars within their state to speed. When the federal government considered changing the speed limit, police and highway patrol agencies from across the nation objected loudly, predicting that the sky would fall, and that there would be an avalanche of speed related deaths. When the law was finally changed, within two years the numbers were in: deaths didn't go up appreciably. People had been speeding already - now they were just doing so legally.
The same thing will happen with drug legalization. All that we have now is a new Prohibition, one where the drug companies, the police, and criminal dealers and producers (organized or otherwise) benefit. And taxpayers pay the tab.
But the initiative, unfortunately, will fail. Because no one who sounds coherent will stick their neck out to defend it. And that is sad.
Dennis R. Wilkins
The Guest PD Blogger
And it will fail at the ballot box. Here's why:
1) Marijuana legalization is soundly opposed by most old people. Old people vote religiously. California politics has been skewed by the opinions of older voters for decades. There is no reason for older people to want to legalize marijuana - they can get vicodin easily with their prescrption drug benefits. And alcohol is even more easily available at the corner store/local liquor barn. Oh, and one last thing - all old people know very well that only DFH's use marijuana. And anything that DFH's want, old people are opposed to.
2) There are no good spokespersons for legalizing marijuana. Take a look on the web and you will find that of the many, MANY opinions that are written in response to articles about marijuana legalization, the ones in favor are usually riddled with spelling and grammatical errors. What does this mean? They are "normal people." Not NORMAL, as in the National Organization for the Reform of Marijuana Laws, but just ordinary, non-college-educated folk. Who want to smoke pot. Most rational people who have a degree of some kind won't say ANYTHING about marijuana legalization because they fear being branded as "one of them." You know - druggies. DFH's. Pot smokers. And as just about ANYONE will tell you, that is the kiss of death for just about any professional. Oh, an occasional professional person can admit that he/she smokes pot, and might even be caught with/smoking pot. But to advocate for legalization publicly? No, that professional will suffer. I won't suffer in my profession because I already defend murderers, rapists and child molesters - supporting legalization is the least of my professional "sins."
Full disclosure: I don't smoke pot. I would smoke pot occasionally, if it were legal. But it isn't, so I don't and I won't. Why? Because I am a Deputy Public Defender, an officer of the court, and I don't want to get my house searched. I don't need the headlines. And I genuinely do my best to obey the law, however stupid it may be at times.
But I despise the ruins my country has made of itself over the ever-escalating drug war. I despise the corruption in the various police departments that the new prohibition has brought us. I despise the fact that the public schools, public schools that my children go to and will continue to go to, lack funds because my government has to feed the criminal justice beast, of which the drug war plays no small part. I got a letter a week ago that said that the school district can no longer afford to bus one of my children because of budget cuts. If given the choice, I would much rather not have ANYONE do time for marijuana-related "crimes," so that our state can afford to bus children who should be bused to school.
3) Police agencies and prison guards are, or soon will be, all over this one. They NEED marijuana offenses to be a crime. If decriminalization were to happen, within 2 years we would see the effects: nothing. That's right - nothing adverse will happen. People will smoke pot like they currently do, and the only guys who will see business cuts are the marijuana dealers, the various growers (the profit incentive will be greatly reduced, so it won't be as lucrative), the middle men, the police agencies who used to enforce the drug war laws, the prison guards who will have less peope to guard, etc. The various police, sheriffs, and the California Correctional Peace Officer's Association, will end up contributing heavily against this initiative.
Another reason they will attack it? God forbid it works, because then it will become a gateway of a different kind. A gateway to legalization of almost all drugs. Remember when the speed limit was 55 MPH throughout the country? That took forever to change, with several states essentially stating that they would abandon a portion of their highway funds by allowing cars within their state to speed. When the federal government considered changing the speed limit, police and highway patrol agencies from across the nation objected loudly, predicting that the sky would fall, and that there would be an avalanche of speed related deaths. When the law was finally changed, within two years the numbers were in: deaths didn't go up appreciably. People had been speeding already - now they were just doing so legally.
The same thing will happen with drug legalization. All that we have now is a new Prohibition, one where the drug companies, the police, and criminal dealers and producers (organized or otherwise) benefit. And taxpayers pay the tab.
But the initiative, unfortunately, will fail. Because no one who sounds coherent will stick their neck out to defend it. And that is sad.
Dennis R. Wilkins
The Guest PD Blogger
Monday, May 24, 2010
Update on William Richards
I posted last year in "DNA Exoneration Close to Home." The defendant's name is William Richards. His case number is FVI00826. I have not been following the case closely. But after reading some of my posts, I realized that I wanted to know what had happened with this case. Well, I found out.
According to a news artical, and then confirmed by reading the court minutes, William Richards remains in jail. The San Bernardino DA is appealing Judge McCarville's decision, I gather on the grounds that he did not have jurisdiction. In other words, even if William Richards WAS wrongly convicted (the DA does NOT concede that he was), their claim is that a California Superior Court judge lacks the power under California law to grant him a new trial. I hope that they are wrong.
But in the meantime, William Richards remains in county jail. He was transported from prison and is now in county jail. He apparently has cancer, and he is receiving treatment for cancer while in jail. This is his second bout with cancer. It would be very sad indeed if he died either while awaiting a decision from the appellate court about whether Judge McCarville's actions were correct, or pending a retrial if it comes to that.
It is unfortunate that our system comes to this: If a man is convicted, he is forever presumed guilty, and he must move heaven and earth to get someone, anyone, to hear his plea that he has been wrongly convicted. But if a man is acquitted, he will forever be suspect as having committed the crime. The search for the truth that our system is often boasted as being all about, especially those in law enforcement and prosecution circles, is far more than not a search for punishment of those of whom are convicted.
But hey, we really are getting the kind of justice that we, as a society, have publicly demanded. Laws are rarely, if ever, seen as too punitive. Rarely, if ever, is there a cry from the citizens that laws have become too harsh (and they have, in my opinion, become far too harsh). There is far more often a cry that the laws are too soft; that judges are too "soft on crime"; that legislators are "coddling criminals." We have come to a time where we have just about bankrupted our state.
What have we spent this largesse on, you might ask? Was it that we built too many schools? Staffed too many libraries? Maintain too many parks? Run too many hospitals? No, not even close. I can't wait for all of the illegal alien haters to join in and tell me how "soft" and "stupid" I am (Some are such nice folk in person, but with the anonymity of the web, their words can become like acid), and claim that it's the illegal aliens who are bankrupting us. No. It's the prisons and jails that's doing us in.
Don't worry, though. This debate will keep on going. The new discussions of "outsourcing" our prisoners to other states, or even Mexico (I'm sure that will fly with the California taxpayers - we pay to build and staff prisons in Mexico while we go bankrupt here - sure thing, Arnie!) to come in line with the 9th Circuit's ruling on overcroding and medical care is actually good for our system. I mean, why should we pay for schools? Why should we pay for universities? After all, we have all those prisons to fill.
Just a few more years of this, and the electorate of California is gonna get mighty tired of paying a fortune to house and feed "criminals." We'll see if that becomes a clarion call for getting people the hell out of prison. We'll see.
Dennis Wilkins
The Guest PD Blogger
According to a news artical, and then confirmed by reading the court minutes, William Richards remains in jail. The San Bernardino DA is appealing Judge McCarville's decision, I gather on the grounds that he did not have jurisdiction. In other words, even if William Richards WAS wrongly convicted (the DA does NOT concede that he was), their claim is that a California Superior Court judge lacks the power under California law to grant him a new trial. I hope that they are wrong.
But in the meantime, William Richards remains in county jail. He was transported from prison and is now in county jail. He apparently has cancer, and he is receiving treatment for cancer while in jail. This is his second bout with cancer. It would be very sad indeed if he died either while awaiting a decision from the appellate court about whether Judge McCarville's actions were correct, or pending a retrial if it comes to that.
It is unfortunate that our system comes to this: If a man is convicted, he is forever presumed guilty, and he must move heaven and earth to get someone, anyone, to hear his plea that he has been wrongly convicted. But if a man is acquitted, he will forever be suspect as having committed the crime. The search for the truth that our system is often boasted as being all about, especially those in law enforcement and prosecution circles, is far more than not a search for punishment of those of whom are convicted.
But hey, we really are getting the kind of justice that we, as a society, have publicly demanded. Laws are rarely, if ever, seen as too punitive. Rarely, if ever, is there a cry from the citizens that laws have become too harsh (and they have, in my opinion, become far too harsh). There is far more often a cry that the laws are too soft; that judges are too "soft on crime"; that legislators are "coddling criminals." We have come to a time where we have just about bankrupted our state.
What have we spent this largesse on, you might ask? Was it that we built too many schools? Staffed too many libraries? Maintain too many parks? Run too many hospitals? No, not even close. I can't wait for all of the illegal alien haters to join in and tell me how "soft" and "stupid" I am (Some are such nice folk in person, but with the anonymity of the web, their words can become like acid), and claim that it's the illegal aliens who are bankrupting us. No. It's the prisons and jails that's doing us in.
Don't worry, though. This debate will keep on going. The new discussions of "outsourcing" our prisoners to other states, or even Mexico (I'm sure that will fly with the California taxpayers - we pay to build and staff prisons in Mexico while we go bankrupt here - sure thing, Arnie!) to come in line with the 9th Circuit's ruling on overcroding and medical care is actually good for our system. I mean, why should we pay for schools? Why should we pay for universities? After all, we have all those prisons to fill.
Just a few more years of this, and the electorate of California is gonna get mighty tired of paying a fortune to house and feed "criminals." We'll see if that becomes a clarion call for getting people the hell out of prison. We'll see.
Dennis Wilkins
The Guest PD Blogger
Wednesday, May 19, 2010
Thinking about Kyles v. Whitley
I went to a California Public Defenders Association conference this weekend. It was the first one I had been to in a long, LONG time. It was in Palm Springs, and I had a really good time. It was their 41st annual convention. The speakers were good the first day, but the next day they were AWESOME. I was really impressed with Brian Waite, a deputy PD from Orange County. His presentation on opening statements and closing arguments was simply magical. This man had a gift.
But the first day's presentation by DPD Charles Denton, of Alameda County, I think, was an excellent hands-on presentation. It was great because he talked discovery, which is something that defense attorneys like myself never get enough good insight on. The more discovery we get, the more triable a case can become. The less discovery, the worse.
Charles Denton did something that there never seems to be enough of - he talked extensively about a particular case: Kyles v. Whitley, 514 U.S. 419 (1995). If you haven't read Kyles v. Whitley, read it. You should also read In re Brown (1998) 17 Cal.4th 873, where Justice Janice Rogers Brown, now on a federal appellate court somewhere, really applied the holding of Kyles v. Whitley. The key holding of Kyles v. Whitley is the fact that the DA heads something called the "prosecution team" which includes the police and other entities that, while the prosecution may not control, the prosecution is certainly responsible for. Per Kyles v. Whitley, the prosecutor must seek out exculpatory evidence that the "prosecution team" holds.
The backstory to Kyles v. Whitley is simply amazing. Long story short (if that is even possible now), Curtis Lee Kyles is charged with murdering a woman, and the key witness is a guy called "Beanie." The problem is that "Beanie" also has a motive for the murder, and his whereabouts and actions are very questionable. It is also kind of apparent that he very well could have planted every bit of evidence used against Kyles, with the exception of some lineups by witnesses that end up being coaxed by the cops to testify falsely.
The first trial, in 1984, hangs. In the 2nd trial, Kyles is convicted and gets death. It takes 11 years to get the U.S. Supreme Court, where a bare 5-4 majority reverses his conviction. Lots and lots of evidence was hidden by the police, and it trickles out over the decade since Kyles was convicted. The majority concludes, in a lengthy opinion, that the suppressed evidence, as a whole, would have made too much of a difference in the trial. A great case, everyone should read it.
After the presentation I talked to Charles Denton and shared some of the backstory about Curtis Lee Kyles, that I mangled a bit at the time. I will share it with you now. After the 1995 U.S. Supreme Court opinion, Louisiana tried Kyles again, and there was a hung jury. They tried him again, and again there was a hung jury. One last trial, and it was again a hung jury. Thus, 5 trials in all, 3 of them after the death sentence was reversed. Louisiana finally tired of this, and dismissed the murder case against Kyles. He walked out of prison in 1998. He was on death row for 18 years. He was within 18 hours of being executed at one point. At every single trial, NEW discovery came out that the police had not disclosed. In other words, the police and DA hid evidence before every single one of 5 trials. The final analysis of the case is that it is pretty likely that Beanie was the actual killer, although law enforcement in Louisiana still think otherwise.
One final note. The dissent in Kyles v. Whitley was written by Justice Scalia, joined by (now deceased) Chief Justice Rehnquist, and Justices Kennedy and Thomas. Here is a tiny snippet of what Justice Scalia wrote, which I find fascinating in how wrong he and his fellow dissenters got the case:
"In any analysis of this case, the desperate implausibility of the theory that petitioner put before the jury must be firmly kept in mind. . . . The Court concludes that it is reasonably probable the undisclosed witness interviews would have persuaded the jury of petitioner's implausible theory regarding the incriminating physical evidence. I think neither of those conclusions is remotely true, but even if they were the Court would still be guilty of a fallacy in declaring victory on each implausibility in turn, and thus victory on the whole, without considering the infinitesmal probability of the jury's swallowing the entire concoction of implausibility squared."
Hmmm. In other words, there is NO WAY that this guy culd ever win, so why are we reversing his conviction? Oops.
Dennis R. Wilkins
Guest PD Blogger
But the first day's presentation by DPD Charles Denton, of Alameda County, I think, was an excellent hands-on presentation. It was great because he talked discovery, which is something that defense attorneys like myself never get enough good insight on. The more discovery we get, the more triable a case can become. The less discovery, the worse.
Charles Denton did something that there never seems to be enough of - he talked extensively about a particular case: Kyles v. Whitley, 514 U.S. 419 (1995). If you haven't read Kyles v. Whitley, read it. You should also read In re Brown (1998) 17 Cal.4th 873, where Justice Janice Rogers Brown, now on a federal appellate court somewhere, really applied the holding of Kyles v. Whitley. The key holding of Kyles v. Whitley is the fact that the DA heads something called the "prosecution team" which includes the police and other entities that, while the prosecution may not control, the prosecution is certainly responsible for. Per Kyles v. Whitley, the prosecutor must seek out exculpatory evidence that the "prosecution team" holds.
The backstory to Kyles v. Whitley is simply amazing. Long story short (if that is even possible now), Curtis Lee Kyles is charged with murdering a woman, and the key witness is a guy called "Beanie." The problem is that "Beanie" also has a motive for the murder, and his whereabouts and actions are very questionable. It is also kind of apparent that he very well could have planted every bit of evidence used against Kyles, with the exception of some lineups by witnesses that end up being coaxed by the cops to testify falsely.
The first trial, in 1984, hangs. In the 2nd trial, Kyles is convicted and gets death. It takes 11 years to get the U.S. Supreme Court, where a bare 5-4 majority reverses his conviction. Lots and lots of evidence was hidden by the police, and it trickles out over the decade since Kyles was convicted. The majority concludes, in a lengthy opinion, that the suppressed evidence, as a whole, would have made too much of a difference in the trial. A great case, everyone should read it.
After the presentation I talked to Charles Denton and shared some of the backstory about Curtis Lee Kyles, that I mangled a bit at the time. I will share it with you now. After the 1995 U.S. Supreme Court opinion, Louisiana tried Kyles again, and there was a hung jury. They tried him again, and again there was a hung jury. One last trial, and it was again a hung jury. Thus, 5 trials in all, 3 of them after the death sentence was reversed. Louisiana finally tired of this, and dismissed the murder case against Kyles. He walked out of prison in 1998. He was on death row for 18 years. He was within 18 hours of being executed at one point. At every single trial, NEW discovery came out that the police had not disclosed. In other words, the police and DA hid evidence before every single one of 5 trials. The final analysis of the case is that it is pretty likely that Beanie was the actual killer, although law enforcement in Louisiana still think otherwise.
One final note. The dissent in Kyles v. Whitley was written by Justice Scalia, joined by (now deceased) Chief Justice Rehnquist, and Justices Kennedy and Thomas. Here is a tiny snippet of what Justice Scalia wrote, which I find fascinating in how wrong he and his fellow dissenters got the case:
"In any analysis of this case, the desperate implausibility of the theory that petitioner put before the jury must be firmly kept in mind. . . . The Court concludes that it is reasonably probable the undisclosed witness interviews would have persuaded the jury of petitioner's implausible theory regarding the incriminating physical evidence. I think neither of those conclusions is remotely true, but even if they were the Court would still be guilty of a fallacy in declaring victory on each implausibility in turn, and thus victory on the whole, without considering the infinitesmal probability of the jury's swallowing the entire concoction of implausibility squared."
Hmmm. In other words, there is NO WAY that this guy culd ever win, so why are we reversing his conviction? Oops.
Dennis R. Wilkins
Guest PD Blogger
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