Protest Police

I’ve had it. For some reason that video, the one with the idiot cop screaming about blowing a hole in the poor guy’s head, got to me. No, the victim wasn’t black. And no, he was not actually shot and killed. But maybe that’s the issue. There was nothing else going on with this one other than the fact that the cop was a complete jerk.

Which, unfortunately, is simply too often the case. Of course this is the part where I am supposed to point out how wonderful most cops are and how this is just one bad apple. But, I am sick of saying that. Why? Because it is total politically correct nonsense that we are basically forced to say and I refuse to keep playing that game. It is a lie. We are forced to say that because we don’t want to alienate people or lose potential clients by simply speaking the truth. Not to mention that there really are plenty of nice decent police officers; but why is it whenever I meet one, they seem like such a breath of fresh air? Such an anomaly? Oh, yeah, I remember now. It is because they are the EXCEPTION, not the rule. Take my word for it. I know.

How do I know? Because I have been dealing with this problem for decades. It is much like the mandatory minimum sentence issue I addressed last time. For decades I have been trying to tell people about the problem with cops running wild and I have never been able to get anyone to listen to me. Everyone is just so blind and biased that they refuse to see the truth. But I have been seeing the truth since my first day as a criminal defense attorney, and the truth is that the way too many of the cops out there are corrupt, lying, biased, power tripping jerks. Sorry officers, but you know it’s true.

There, I said it. Just as I have tried to say it a million times. In court, for example, when I KNOW a cop is up there on the witness stand, lying a blue streak, but the judge acts as if I am some sort of commie pinko for daring to question that wonderful officer’s integrity. Never mind that every shred of evidence points that way, other than the fact that the guy all dressed up in his pretty uniform with no place to go is up there smiling and acting charming. That seems to be enough to fool most judges, and I’m sick of it.

Because, you see, I blame the judges. And the prosecutors. And the biased public with their pretty uniform obsession. Jurors tell me all day long how open minded they are going to be, perishing the thought that they would ever possibly take the cop’s side just because they are cops. Then, after they convict my client and I make the mistake of talking to them after the trial, they invariably take me to task for daring to try to make the cop look like a liar. Never mind that they are indeed lying. It becomes my fault for pointing it out.

I was once in the middle of a trial where it was the cop’s word against my client’s. I tried to show that the cop was biased, heaven forbid. I mean, how dare I, right? They look so pretty up there in their nice uniforms. With their Pepsodent smiles and charming nods to the jurors.

I went through the usual litany. “Does it help your career if there is a conviction in this case, especially since you made the arrest?” You would think it might, right? Am I the only one who believes that is possible?

“Objection, Your Honor!” It is like an involuntary prosecutorial knee jerk reaction.

“Sustained!!”

“But your honor, if it would help his career then this officer might have a motive to make sure his testimony helps get a conviction, making him biased as he testifies.” You would think I had just accused him of decapitating babies. It is so impossible for the judge to believe that a cop would ever lie or embellish or exaggerate or not be completely fair and neutral that they refuse to even let me ask the question.

I generally push on, changing the question slightly, along the lines of, “If you go to work tomorrow and there has been a conviction in this case can you imagine that a colleague might congratulate you?” That draws an objection that makes me sound as if I am now accusing the cop of dismembering that dead baby’s body, followed by an even more outraged “Sustained!” It is if they can do no wrong up there and I am a monster for suggesting otherwise. This happens virtually every time I try to do it.

Which is the problem. The cops come to believe they are above the law because that is what they experience all day long. It is a bit like the problem with every little leaguer getting a trophy, even if they can’t catch a baseball. It is pure blanket bias, with no basis in reality. It is impossible to get the judges to open up their minds enough to accept that it is remotely possible that the cop is lying.  They refuse to let the jury even have the opportunity to consider that and instead prefer to take away my client’s constitutional right to cross examine their accuser, a right that goes all the way back to the Magna Carta, but which magically evaporates when the witness is in uniform. It is pathetic.

In one especially blatant case, after I was shot down on question after question about different reasons the cop might have a motive to skew his testimony against my client, the one he referred to as a “puke” when talking to me out in the hallway, the one he is so obviously biased against, I finally asked, “Officer, are you biased in any way against my client?”

“OBJECTION!  SUSTAINED!”

Seriously? That is blatantly wrong. There is a stack of cases a mile high that say I have a constitutional right to ask a witness that question and both the prosecutor and judge know it. But away they go anyway. They got that cop’s back. It makes me sick to my stomach.

(Ironically, in that case I managed to persuade the judge that his ruling was wrong and to tell the jury that it was wrong. Ultimately my client, who had been caught red handed with twelve pounds of illegal drugs in his car, was acquitted, largely because of the way this issue was mishandled, which caused the jury to look more critically at the prosecutor. So, it can backfire sometimes.)

After experiences like this I take a special delight when I see some goober detective wearing a wife beater and cut offs jump out of his pick up and threaten to blow a hole in some poor guy’s head because of a minor traffic violation. An incident that no doubt I would have been scolded for even talking about had it not all been caught on tape.

Thanks to iPhones and dash cams it is all becoming clearer. And clearer. Recently we saw a woman, Sandra Bland, essentially sentenced to death for an illegal lane change because she copped a slight attitude after being pulled over. Then the wife beater threatening to blow a hole in some guy’s head because of a similar traffic violation. Then just last week, the latest. A campus cop has now just been shown executing a guy for driving without a front license plate. You just can’t make this stuff up… unless you are Stephen King, maybe. It’s a horror show.

Which is my point. This is a horror show of our own making. But the tide may be turning – finally. It is no longer just me trying to explain the reality of the way so many police really act in real life; we now have video proof. It is becoming impossible to keep denying it.

The fact is that all of these cases have one thing in common: they all involve cops on a power trip, unable to process the idea that someone might actually not suck up to them and do everything they say. Like kids with trophies unable to understand why everything in their lives does not work out perfectly, they’ve become spoiled by all the preferential treatment.

Which is why I was so delighted to read the new Washington State Supreme Court case, State v E.J.J. It involved an obstructing charge, which I have referred to previously as “Contempt of Cop”. Obstructing is often a way for a cop to arrest someone simply for not doing exactly what they are ordered to do, whether or not that order is legal.

Finally. Our State Supreme Court agrees with me. They are fed up. This case involved the brother of a young woman who was being questioned by the police. He stood inside his house, swearing at the officers and refusing their “Order” to close the door and basically stop talking. In other words, “Contempt of Cop.” The Court initially noted, “this case turns on whether the record suggests that E.J.J. was convicted of obstruction based solely on his words.” Then, after a thorough review of Constitutional Principles, they held that the E.J.J.’s conviction must be reversed and dismissed, stating:

“Where individuals exercise their constitutional rights to criticize how the police are handling a situation, they cannot be concerned about risking a criminal conviction for obstruction. Such a conviction is not permitted under the First Amendment.”

I admit, it’s nice to know that I am no longer alone. No longer the lone voice in the wilderness, being told to stop criticizing cops for misbehaving. The most powerful judges in our state agree with me. I like to think of that as a nice place to start.

Even after all these years.

PrisonFence-FB-Big

Before we start, I have a small secret to share. Those of you who regularly follow this blog will have noticed that I sort of disappeared the past few weeks. That’s because I was having open-heart surgery and recovering. Recovery is going OK, but it sort of took the wind out of my sails for a bit. I mean, it’s hard to get too excited about Supreme Court opinions, no matter what they involve, when you are looking at life and death issues up close and personal.

Which is why I’d like to thank John Oliver for helping me to get back in the saddle. His recent piece on Mandatory Minimum Prison Sentences (i.e. “mandos”) hit every mark and has motivated me to chime in.

I’ve been complaining about not only mandatory minimums per se, but also about the impact of predetermined range sentences for decades now. I remember when the “War on Drugs first started and I was a young smart aleck Public Defender in Seattle in the 80’s. I used to enjoy standing at the front of the courtroom during breaks, crowing to the prosecutors (who all thought I was crazy) that I was happy to accept their challenge and fight back against their silly war. I was able to back that up since we went to trial a lot more in those days, largely because the Government had not yet perfected the complete destruction of Due Process eventually wrought by mandos and their ilk. Now going to trial can be an almost impossible choice for Defendants.

I liked to point out then that prosecutors were destroying the criminal justice system by using the sentence grid to force people to plead guilty; they used their power to pick the charges and the resulting automatic sentences, taking away the judges’ power to be judges and decide fair and just sentences. I tried to tell them that these sentences served no purpose since none of my clients had any idea what the sentences were before they committed their crimes. Hence they could not possibly have any deterrent effect. I used to say that they should take out full-page ads in the paper to explain the sentences so people knew what they were. Nobody wanted to listen to me.

So here I was, thirty years later, listening to Mr. Oliver make the exact same points. Déjà vu all over again. Here are some of the most important observations he made:

1. Circumstances Make a Difference

They do. This is why it is important to look at everything that happened in a case before deciding what sentence to impose. This can go both ways. Bad crimes get long sentences and less serious crimes get less. It is not one size fits all sentencing, and it requires a participating judiciary to make it work.

With mandos, one size fits all. Just plug in the drug quantity and maybe one factor, such as there was a firearm somewhere, practically anywhere, and the sentence is MANDATORY, no exceptions. Never mind if the firearm is an antique rifle hanging on the mantle that has not been fired in decades, or that the drugs were rather benign (like pot, which has long been treated the same as heroin or cocaine by the Feds, something hopefully we now all realize is a total joke). Mando is mando.

The judges are not allowed to consider the circumstances; they are forced to sign the sentence on the dotted line, a line created by the prosecutors when they decide the charge. This is the most serious problem.

2. Separation of Powers and The Right to Trial Are Good Ideas

Our Founders were geniuses when it came to creating a new form of government. Too bad that so many are constantly trying to subvert their efforts. They thought it would be a good idea to spread the power of government around evenly between the judiciary, executive and legislative branches to keep things balanced and fair. They were right.

Mandos are wrong because they circumvent this, in more ways than one. First of all, we have situations like the one described by John Oliver where a judge was forced against his better judgment to impose a 55-year sentence on a defendant who sold a small quantity of weed when he also had a gun around. The sentence was the same that an aircraft hijacking terrorist child rapist might have received. Does that seem fair and balanced? The judge had no choice because the prosecutors had decided to proceed with the charges that required a mandatory sentence, forcing him to impose that. In other words, the prosecutors took away the judge’s discretion to be a judge and imposed their own will in its place.

This is, without a doubt, the most horrible consequence of these sentences. They give the prosecutors all of the power to determine what sentences should be imposed. All the prosecutor has to do is figure out what crime to charge and they can tie the judge’s hands when it is time to impose sentences.

But it goes further than that, something touched upon by Oliver when he played the Jimmy Smits clip showing how cops extort cooperation out of people by threatening to charge them with crimes that require a mando. This happens in so many cases every single day it would make most people’s heads spin.

I spend a significant amount of my professional life telling people that if they do not take a plea bargain the prosecutor can simply change the charge and get either a mando or higher sentence range, which can prevent the judge from dishing out a less harsh sentence. In practice this varies a bit depending on whether the case is federal or state. Typically, especially in federal court, we talk to our clients about the risk of going to trial and risking a mando of ten or fifteen years or more, versus pleading guilty to a recommendation of much less than that. It’s not really a fair choice. The right to trial does not mean much when that is the choice.

3. Racial Disparity is A Big Part of the Problem

We all know that drugs impact all races, but, as I have pointed out in other posts the impact of the criminal justice system reaches much more deeply into the African American and Hispanic communities. In reality, it means that the vast majority of my clients looking at mandos are people of color, even though the drugs they sell are frequently consumed by Caucasians. That should speak for itself when it comes to fairness.

4. Criminal Conspiracies: The Best Way To Do Time For Someone Else’s Crime

This was not emphasized by Oliver, but it was touched upon. One Defendant had been a minor player in a larger conspiracy, for which she was sentenced as if she had been the Kingpin. It’s the law, unfortunately. Criminal Conspiracy is the secret due process destroying weapon in the Government’s arsenal when it comes to sending people away on disproportionate sentences. It means that if you carry a bag across the street for someone who is part of a vast criminal enterprise, you can be punished as if you had done everything everyone else in that enterprise ever did, not just for what you did. With that threat on the table most people just give up and take the blame for the crimes committed by other members of the conspiracy, even in cases where they have never met those members or even knew they existed.

What gets lost in this process is due process itself. Jury trials become a luxury or worse, a huge risk, like playing Russian Roulette with three bullets. Lose and all hope is lost. Prosecutors have not only taken away judges’ ability to impose an appropriate sentence but have also taken away the Defendants’ constitutional right to be presumed innocent and go to trial. This is why our own Supreme Court calls this federal system a System of Pleas. 

Simply put, this is wrong. It’s more than wrong, it’s unconstitutional. I’ve been railing against this unfairness for years. Typically I was told, “Well, who cares? They’re all guilty anyway.” I cared. I cared because I had this naïve idea that the best way to determine guilt was to subject the evidence to close scrutiny. Scrutiny by a neutral jury who had the benefit of hearing both sides of the story, not just what the prosecutor thought. Now people are finally getting a clue. It’s about time.

Unfortunately it’s about time served in prison for many of those whose lives were ruined when they fell under the draconian sentences. It is high time we reexamine the people who are currently incarcerated under these sentences and look closely at making new laws abolishing mandos retroactive, so that people serving time for life might have hope. It’s the right thing to do.

 

 

SCOTUS MAGAZINE3

I wrote this piece some time ago but never got around to posting it. However, given the fact that so many people were interested in the workings of the Supreme Court when I blogged about that last week, it seemed especially relevant. Lots of people apparently want and need information about the Supreme Court so that they can weigh in on what they think about the work that goes on there.

The fact is that thousands of people read my little old post about the Supreme Court, but only 500 or so of them would ever be able to actually see the Court in action, and they would have had to travel to Washington D.C. and wait in line for days to be able to be there. In today’s world of instant video coverage and tweeting from accident scenes, that just seems wrong. It is at least out of keeping with the times.

I realize that watching the Supreme Court on TV is not exactly a red-hot blog topic. The issue of why the Supreme Court arguments are not broadcast for the public to view may be more boring than cops shooting people or Jihadi terrorists or kids being harassed by creeps in parks, but it is at least as important. More so really.

Why does the highest court in our land continue to refuse to allow cameras into their courtroom? What gives? What makes them so different than the Kardashians and Amish Gangsters and idiots jumping off of houses? Well, strike that. Silly question, I know. But you get my point. You can see just about anything on TV, so why not the most important court in the land?

Seems to me that in a free society we should all get a chance to see our wheels of justice spinning at the ultimate level. Why on earth shouldn’t we? Is it that we are not to be trusted forming our own opinions after we see how the process actually works? What gives them the right to deny us access anyway? We own the building, after all, not them. How come they get to freeze us out?

Ostensibly, one reason has to do with wanting to prevent showboating by the Justices that might occur if they knew they were going to be televised. That argument makes about as much sense as sitting around all day watching the Kardashians parade in front of cameras doing nothing. But we are not talking about watching a bunch of dull D Grade bad actors; we are talking about the court that can potentially profoundly impact our lives. Surely the justices can avoid falling into the Kardashian “look at me” mindlessness vacuum. They actually have jobs and do work. That is what we want to watch, not grandstanding.

We should be able to see them working, which begs the issue: we can already hear them. How could it possibly change things if we can see them too? Are they worried about their hair? Let’s face it. It might actually lead to more citizens having a clue about how our government actually works (or not). People tend to watch TV more than they read convoluted written opinions. At least they would have some clue about how the justices arrive at their conclusions.

Maybe THAT is what they are afraid of. I suspect so. Especially for the ones like Clarence Thomas, who, without cameras in the room, can more easily hide the fact that he has scarcely uttered an intelligent word during oral argument sessions in almost 25 years (if ever). Harder to see that when all we have is audio recordings. The sight of him over there reading his comics, or whatever it is he does, might get some people’s attention. They might think twice before supporting a nominee who would rather be in his office watching Kim and Chloe prance around than doing his job.

As for showboating: Scalia anyone? Heard of him? Look up self promoting egoist in the Dictionary and there’s his photo. It is interesting that in his dissent to Justice Kennedy’s opinion in the recent Gay Marriage case Scalia said, “If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag.”

What makes this quote so interesting is that Scalia is already hiding.  He is hiding from the public and their close scrutiny, not of what he writes (or I should say what his clerks write for him to embellish), but rather of how the court actually conducts business. What has he got to hide?

When questioned about this Scalia said he thought only C-Span junkies would want to watch. So? Let them.

Kennedy said that he thought an “insidious dynamic” might be created, in which justices might be “saying something for a sound bite” or ask questions “to grab a headline.” Can he read? For example, some of the Scalia’s quotes about him? Like needing to put a bag over his head if he wrote like Kennedy? Is a comment like that any less likely to create an “insidious dynamic” or “grab a headline” because it was not videotaped? They are already nasty to each other. Video is not going to make it worse.

Scalia attacked Kennedy personally in his dissent on the Gay Marriage case: “The opinion is couched in a style that is as pretentious as its content is egotistic. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so. Of course the opinion’s showy profundities are often profoundly incoherent.”

It is difficult to imagine how Scalia could engage in any more grandstanding or cause any more of an insidious dynamic. If I tried to talk like that in a public courtroom the prosecutors would move to hold me in contempt and I’d probably draw a bar complaint. So, having them video taped might in fact help reduce that ugly dynamic. It is hard to see how it could be worse.

Thomas, the one who does not speak or ask questions, said video coverage would compromise his anonymity. It isn’t hard to see why he wants to remain anonymous. He is probably embarrassed of his “work.” Souter, since retired, said that a video camera would have to “roll over my dead body” before it would be allowed. Who cares what he thinks? He quit.

The only people in America who seem to believe that video in the Supreme Court is going to be a bad thing are the same people who are hiding from it, the Justices themselves. The rest of us deserve better. We deserve to see how they work.

So many people who wrote comments on my post about the Supreme Court had misconceptions about how it really works.  That is a post for another day. However, I have to believe that if people could watch the Court at work they might have a better understanding of the process, and if they do, they might not be so upset about it. Or they might be more upset. But, after all, is that not the whole point of free speech? To be free to watch and listen and think and say things freely and to reach our own conclusions, rather than be spoon-fed information from those in power who claim the right to control what gets seen and what is hidden? Especially when the ones hiding so that they can protect themselves from public scrutiny are the same ones who are supposed to be protecting our right to be able to conduct that scrutiny..?

It all seems a bit backwards to me.

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I have been following the Confederate Flag issue closely and resisting the temptation to comment. However, I wanted to share a true story that happened to me to put this issue into perspective. But before I do, I also wanted to state my position on this. To me, this whole thing is about War. Period. Don’t get me wrong; I totally understand the debate about whether the flag represents the Glorious Past of the South or whether it symbolizes the Evils of Slavery. I also understand that there are differences of opinion about the War and what caused it. I get that some from the South see it as a rural agrarian culture going up against an Industrialized North, and to some extent I can sympathize with that view.

But, make NO mistake. Sorry, Jonny Reb. I’m a dyed-in-the-blue-wool Yankee. Born and bred. Born in Peoria, Illinois, smack dab in the middle of the “Land of Lincoln”, just like it says on every license plate in my hometown (even if he was in fact born in Kentucky, which used to confuse all of us when I was a kid, since they were the enemy, something I will get to in a minute.) For virtually every school field trip we went to nearby Springfield to see Lincoln’s Tomb and New Salem, the historically reconstructed town Lincoln moved to from Kentucky when he was just 22. Plus, Abe Lincoln was my personal hero; a tall lanky geeky guy who was into reading and school, famously walking barefoot in the snow six miles to get to school and reading his school books at night by the light of the family fire in his little cabin’s hearth. Just like me. (Well, maybe not the barefoot walking and family cabin part… but I did like to read and I was a bit of a geek, unsurprisingly.)

Worse yet, I am a very proud descendant of Connecticut Yankees who came to this country in the 1630’s. They fought the Brits in the Revolutionary War and worked with the spies who are now featured on that TV show “Turn”. They hung out with the likes of Jefferson and Franklin; two of my uncles went to Paris to get help from the French for the War Effort. The portrait of one of them, Jeremiah Platt, now hangs in the Metropolitan Museum of Art in New York City, right next to “Washington Crossing the Delaware”. So, we go back. Way back. Which is why I prefer to see this whole issue as a matter of War, and set aside the political stuff for a minute. I mean, I am not so sure that Jeremiah and his brother, my Great Great Great Great Great Grandfather Ebenezer, another Patriot, didn’t have slaves. I am forced to assume that they probably did.

So, let’s talk War for a minute. Pure and simple. Or not. Which brings me to my story, a very true story.

Several years ago, when I was ‘footloose and fancy free’, I went to stay with a friend who lived in the South. She lived in a rural area, surrounded by farms near a little Southern town. I stayed there for a week with her family. Her parents were very Southern, religious and conservative. I kept quiet when they were talking politics, in part because I had trouble understanding them. They had such strong Southern accents.

One day there was some sort of War Anniversary happening. I forget exactly what it was, however, I do remember how excited the family all were about it. It was a BIG DAY. We all got ready as they chattered excitedly in their thick accents at breakfast about the day’s big events, which featured, first and foremost, a giant reenactment in a little town nearby, where everyone would be dressed to the hilt in real live uniforms – just like those worn in the War.

As we drove towards town the father, a staunch patriot and conservative, talked volubly about the “Great War” and the “Glory of the Cause”. I had some trouble following, not only because of his accent, but also because I did not get what was so great about their cause. I had some issues with it. I mean, they lost, right? They were the bad guys, right? What was he talking about, anyway?!?

But on and on he went. Please remember, I am NOT making this stuff up. I say that because it got worse and worse, the dad nattering on about how bravely and valiantly his side had fought in ‘The War’. “Against US!” I thought. I mean, give me a break. You are celebrating how bravely your guys tried to kill MY people. I was a disgusted, quite frankly. Since when do the bad guy losers get to brag about being valiant and brave and courageous? I know the victors write history. But isn’t that the point of winning? Isn’t that one reason we fight? To win and put down the bad guys? Or, at least, in theory. It can get very confusing when you really look at it.

Which is why I tried to have an open mind. But I just couldn’t. Because just as I was really trying to understand his point of view, no matter how wrong I thought he was, we arrived in that small town with the reenactment gearing up in full swing. And what I saw made me want to puke. Not just out of disgust, but also out of fear.

There they were. The brave and virtuous losers. All dressed up with nowhere to go. Marching around the town square in their uniforms. I remember telling my dad about this later. He was appalled. He was disgusted. He practically came unglued. Because, you see, he had been on the other side. Fighting. His two closest friends had been killed by these guys. No, he was not some freak of nature, living to be 152.  He was born in 1926. He was 19 when he was here in the Army.

For, you see I was in Germany. The South. Where the Nazis came from, like my friend’s dad. His great and glorious boys in uniform were Nazis. And there they were, reliving their glory days. Of course one thing that was nowhere in sight was a swastika, since it is illegal there. Still, it was enough to make me want to barf all over them.

Which is precisely how I feel now, when I hear people glorifying that bunch of treasonous traitors, the Confederate Army.  Buncha criminals, if you ask me. Since when is it glorious and great to commit treason and take up arms against your own country?? Am I missing something here? Do these guys celebrate the Black Panthers or the Symbionese Liberation Army with equal gusto??  What on Earth are they all talking about???  Not to mention… THEY LOST!

Give me a break, Johnny Reb. Get over yourselves. You are bunch of losers. There is nothing glorious about anything you did. You are traitors who committed treason and tried to kill my people, just like the Nazis. And for that reason alone, nothing more required, on behalf of my Yankee ancestors, I hereby DEMAND THAT YOU SURRENDER YOUR FLAG. Like any other good loser.

Only they aren’t good losers, are they? They seem to think they won. Guess what? They lost.

End of story.

Supreme Court Broken2

In a word… uh, NO. I try to avoid blatant political content on this blog, for a huge number of reasons; these range from simple self-serving concerns, such as I don’t want to lose potential clients just because they disagree with me about politics, to more complex factors, as in I have no clue what to think about political issues most of the time.  I’m just too open minded and independent for that.

Frankly, it would be silly to decide which lawyer to hire based on their political views. Bad lawyers come in every possible flavor, and so do good ones. Just look at David Boies and Ted Olson, two of the best lawyers in America, from polar opposite ends of the political spectrum, but also close friends.  As it should be. They argued against each other in the U.S. Supreme Court on the incredibly significant case of Bush v Gore. They have since joined forces to argue in favor of so-called “Gay Rights.” So go figure.

Which brings me to the question about the Supreme Court: Is it broken?

In order to answer that question, let’s look at some history. There is a lot of it, so I’d like to focus on the role that the political appointment of justices has played in the past.

Dwight D. Eisenhower, World War II Hero and Conservative Republican (although today he would probably be viewed as a wild eyed “leftie”— after all, it was he who first coined the term “Military Industrial Complex”) was once asked what his biggest mistake had been as president. He answered that it had been the nominations of Justice Brennan and Chief Justice Earl Warren.

When he had appointed Warren in 1952, Eisenhower said, “He represents the kind of political, economic, and social thinking that I believe we need on the Supreme Court.” Warren went on to author some of the most liberal opinions in history, including  Brown v. Board of Education (1954), which overturned the famous 1896 “separate but equal” ruling in Plessy v. Ferguson with regards to public education.  Sound familiar?

Eisenhower was later quoted as saying that Warren’s appointment was “the biggest damned-fool mistake I ever made.”

Last week saw two major Supreme Court decisions. Well, actually there were three, but normal people have no idea about the third. I’ll get to that third one, don’t worry. It is arguably more significant in many ways than the two famous ones. It is just that it is too complicated for journalists to understand and explain to people.

The first, King v Burwell, upheld Obama’s favorite law, the Affordable Care Act. That decision was authored by Chief Justice Roberts. The second, Obergefell v. Hodges, made Gay Marriage legal in all fifty states. That opinion was authored by Justice Kennedy.

Before I get into these opinions I want to return to the topic I started with and explain my political approach. The only thing I enjoy more than annoying Conservatives is annoying Liberals. I like to talk about ideas, not ideologies. Ideologies, in my humble opinion, are for morons who can’t think for themselves. Instead they mindlessly regurgitate whatever they are spoon-fed from above. They are basically sheep.

I like to be more of a wolf, circling the field, looking for weak positions to attack. Although, really, I much prefer to morph from Wolf to Sheepdog at the last minute, not so that I can corral the sheep, but rather so I can attempt to show them how much fun it is out here in the field, running wild, encouraging them to break free of the flock and come play with me. The few who do usually only get far enough to figure out that the pasture is surrounded by cliffs, at which point they turn tail and run back to disappear again into their group. Occasionally one or two actually make it to the cliffs and fall into the abyss below, the one called “independent thought”. Me? I’d much rather risk falling off a cliff than be stuck jammed in with a bunch of smelly stupid animals. Which brings me back to these two controversial Supreme Court decisions.

I laugh when I hear the Conservatives expressing their outrage at these opinions by calling the justices who wrote them radical liberals. Nothing could be further from the truth.

Kennedy, who wrote the dreaded Gay Marriage opinion, was appointed by the Mythical God of the Right, Ronald Reagan. Ever heard of him? Roberts is one of the most conservative appointments we have ever had. Following years of right wing diatribes by the Uber Conservative former Chief Justice, Rehnquist, it was a sad day for my liberal friends when George W. Bush appointed Roberts to take over as Chief Justice. The same liberal groups who opposed Roberts for Associate Justice declared him even more unfit for the job of Chief. However, the Conservatives were holding a Love Fest over him: “He will be an excellent chief!“enthused then Senate Majority Leader Bill Frist (R-Tenn.)

Roberts wrote Citizens United, for crying out loud, which is arguably the most politically divisive Supreme Court opinion written in decades. Until last week, that is. It is a favorite beacon of First Amendment Freedom for Conservatives and a final Coffin Nail of Democracy for Liberals. (Personally I think it is horrible to see giant money being spent to buy elections… for EITHER SIDE, but I don’t want to get into that here.) Now Conservatives are calling this former Hero of the Right “our national ‘umpire’ … playing for one of the teams,” who “is willing to join the court’s liberals in this linguistic farce.”

I must conclude that very few people understand how our government is supposed to work. Which is really too bad. Because, in spite of all the ups and downs, it is probably the best system ever devised. So, some credit to our Founders for thinking it up is definitely in order.

Our system of Government is based on the idea of Separation of Powers. That was a huge departure back in the 18th  Century, when most countries were still controlled by monarchies. Even those with limited representational governments, like England, did not evenly distribute power. Instead they put all of their eggs in one basket, and still do. In the U.K. the parliamentary system means that the Prime Minister is determined by who wins the majority in Parliament. Not only are their branches of government not separate, they are basically joined at the hip.

In the United States, the idea is that the three branches of government act as checks and balances to one another, each acting independently to ensure that no one branch gets too much power. Early in our history, the judiciary was the weakest of the three branches of government. Chief Justice John Marshall established the principle of judicial review in Marbury v, Madison by declaring an act of Congress unconstitutional. This greatly strengthened the judiciary. Even though the Supreme Court only exercised this power one other time prior to the Civil War (Dred Scott v. Sanford), the establishment of judicial review made the judiciary more of an equal player with the executive and legislative branches.

The judicial appointment process was designed to ensure that the separation of powers doctrine functioned over time. The Framers wanted to balance individual accountability against the risk of tyranny by breaking up the appointment power between the other two branches of government, the Executive and Legislative branches. Hence the Appointments Clause of the U.S. Constitution allows for the President to appoint justices, while Congress, in this case the Senate, provided the balancing check and consent to the President’s choice by confirming or rejecting the nomination.

In practice what this has meant, as described above, is that the Justices don’t always turn out to be what they seem to be at first. Apparently the Framers knew what they were doing, even if biased politicians now complain that they are not getting what they bargained for. The fact that they are not is PRECISELY what the Framers wanted. It keeps things balanced. Duh.

The best example of this occurred last week in the most important case that you will NEVER hear about in Big Media, because it is way to sophisticated for them. Ironically, Justice Scalia, the one who bashed Roberts for his Gay Marriage opinion, came out in favor of making it easier for dangerous criminals to avoid long prison sentences in Johnson v. U.S.  He did this by finding the residual clause of the Armed Career Criminal Act “void for vagueness”.

“Huh?” I hear you saying.  Frankly if you expect me to fully explain that to you you will need to retain my services. Long story short, if a criminal defendant has three or more earlier convictions for a “violent felony,” the Armed Career Criminal Act increases his prison term to a minimum of 15 years and a maximum of life. In declaring the Residual Clause that is used to define violent felonies void, Justice Scalia, a staunch law and order Conservative, ruled that the Government violates the Due Process Clause when it takes away someone’s life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.

Anyone catch that on CNN? R U Serious right now? Nobody on their staff, with the possible exception of Jeff Toobin, would have any clue what any of this means.

But I’ll tell you what it means. It means that while the pundits were wasting time going after Roberts and Kennedy for their so called radical left wing views, they totally missed their darling right winger, Scalia, issuing an opinion that makes the Gay Marriage and ACA cases look like parking citations. You can get upset about health insurance or two men holding hands or instead you can worry about dangerous criminals being released from prison early so that they can shoot you. Take your pick.

So, there you have it. The Supreme Court is alive and well and working just as it was always supposed to. If someone tries to tell you differently, ask them to explain Scalia’s opinion in Johnson to you. I wish you “Good Luck With That”.

PrisonBreakManhole

Please tell me I’m not the only one. I feel a bit guilty. A lot guilty to be honest. I mean, I know these guys are monsters. Especially Richard Matt, the one who killed and disemboweled an old man. David Sweat, also a convicted murderer, ain’t no sweetheart either. But I couldn’t help but get a little excited about the news when I saw the headline: PRISON BREAK FROM MAXIMUM SECURITY!

Three of my all time favorite movies are “The Great Escape”, “Escape from Alcatraz” and “The Shawshank Redemption”, a favorite TV series, “Prison Break” (at least for the first two seasons). Who can’t remember cheering for Steve McQueen as he gunned his motorcycle, gathering speed to jump that long barbed wire fence as he attempted to make his getaway from the Nazi POW camp, Krauts looking on, powerless to stop him, only to crash and be brought back once again to sit in the “Cooler” and toss his ball on the wall. Ah, prison life is the life for me. To escape from of course.

But I know it’s not just me. Just look at the language being used in the initial reports:

“A daring weekend escape from a New York state maximum-security penitentiary”

“The escape of two prisoners from a maximum-security prison has all the makings of a hit movie plot – a seemingly impossible escape, insider help and few concrete leads on the escaped prisoners’ current whereabouts.” 

And as the details started pouring in it just kept getting better:

The convicted killers escaped sometime after they were last seen at bed check Friday night. In their place, the pair left decoys to trick guards into thinking they were asleep in their bunks — and a yellow sticky note with a smiley face on it. It read, “Have a Nice Day!”

Close up of the note left on pipe that Richard Matt and David Sweat used to escape Clinton Correctional in New York.

 

Or…

“In a prison-break likely to draw comparisons to the film The Shawshank Redemption, two convicted murderers have escaped from a maximum-security facility in upstate New York by cutting through steel walls, shimmying through a steam pipe and emerging from a manhole on the outside.”

Detailed descriptions and photographs of their actual escape route are all over the airwaves, complete with diagrams of their plan. This looks more like Escape from Alcatraz than Shawshank Redemption, to me. 

To make it even more dramatic, according to reports, the pair apparently spent a month roaming around the ancient prison catwalks alone at night, the guards oblivious, until they could find a way out of there. Just like “Escape from Alcatraz”.

I mean you just can’t make this stuff up. Oh wait, that’s backwards. Theoretically you can only make this stuff up. Because it’s not real. Only this time it is.

I immediately said, “inside job” to my law partner the second that I heard they had used power tools. Not something normally lying around your average maximum security prison cell, even if they were “Honors Inmates”, a fact which merits its own separate post.

One interesting thing for me personally is that the prison is just outside Plattsburg, named for some of my ancestors centuries ago, their old stomping grounds. Funny how I keep seeing connections with my family and places in the news recently, like Fergusson, Missouri.

But my personal connection goes a lot deeper than that. I have spent time in jails and prisons from the little Black Hole of Calcutta excuse for a jail in Saipan, in Micronesia, to a dirt floor cell in the boonies of Morocco, to the largest, scariest prison in Europe, the one with “H Block”, where they held all the IRA guys, Wormwood Scrubsin London. Not to mention every jail or holding facility in Western Washington.

No, I haven’t been in that much trouble. I’ve been in these places working, meeting with clients. Well, except for that place in Morocco, where we were briefly detained for the crime of “hiking in the mountains.” We had to bribe our way out of that one. Which brings us back to how these guys escaped: someone working on the inside was dirty.

You learn a thing or two about prison security when you regularly go into and out of this many lock ups. Simply put, it’s not what it seems. I remember the public’s shock and outrage when Richard Speck, the infamous nurse murderer, was featured in a video showing him snorting cocaine, having sex and bragging about his fun times in prison. He summed it up, “If they only knew how much fun I was having in here, they would turn me loose.”

I was personally outraged because I distinctly remember being afraid to go to Cubs games in Chicago when I was a kid because we were so afraid that this guy would escape and kill us. He had traumatized the entire State of Illinois with his crimes. But I was not surprised when I heard his claims. That’s because I know how it really works. 

When I worked in London, back in the 80’s, I went to “The Scrubs” about every other day. With my raggy red hair and beat up Harris Tweed, the “Screws” gave me a close look over whenever I came and went, especially with half the IRA locked up inside. Our clients were all in “Max” so it took about a seven giant locked gate trip inside before I got to where I needed to be. But somehow one of my clients was caught with a kilo of Black Afghani Hashish, deep inside the cell block, dealing to the other inmates. Where and how did he get it?

Simple. A corrupt guard looking for a little supplement to his paycheck. As I drilled down on that case, I discovered something. There is an entire world inside, a completely hidden culture of favors and bribes and money flowing in from the outside to make life a little more bearable for the customers. Because that is how many guards see these guys. Literally a captive audience who have a high demand for some of their “favorite things”. Like weed and coke and access to cell phones, as in this case, to plan their escape.

So I wasn’t surprised one bit when they identified a prison worker who was helping the bad guys escape. I have no idea who she is, but I know she is probably the type who is easily conned, like some of the prison officials in that show Prison Break. I’ll bet she is lonely and has low self-esteem and suddenly these rather larger than life figures were showing an interest in her… she was only too happy to help, until she apparently had second thoughts about helping them drive away and left them stranded.

You may be wondering what my point is by now. To be honest, I don’t really have one, for once. I am just sharing my experience here. Because it is really fascinating to know that there is an entire world that most people know nothing about that I have first-hand experience with.

I will never forget my all time favorite experience along these lines. I was deep in the bowels of the Old Bailey, in London, the crucible of our modern criminal justice system. The dungeon is just that, a dungeon. You half expect to see Iron Maidens lining the walls or a “Rack” set up and ready to go. Instead you got smoke filled rooms and barristers running around in their wigs and gowns, prepping their clients for court.

We were late for our hearing after spending too much time with a particularly difficult client. He was scheduled to appear in the main courtroom, the one where famous folks from Oscar Wilde to the Yorkshire Ripper had once appeared. At the last second the guard grabbed my arm.

“This way,” he winked, pointing to a tiny doorway leading to some ancient stone steps beyond. As I approached, my client and trusty barrister behind me, (I was a “Solicitor’s Representative”, but that’s another story) I looked up the long, stone stairs into the gloom, a small light shining down from above. It was just enough light to make out the deep grooves, worn into the stone by centuries of shuffling prisoners, dragging their tired bodies up the narrow stairway. I couldn’t help feeling that poor Oscar’s ghost was right there with me, slowly ascending to emerge into the light.

When we reached the top the door opened, and suddenly I was blinded by the light, inside the cavernous Courtroom One, standing smack dab in the middle of the floor, surrounded on all sides by spectators looking down from the balcony at me, wondering if I was the Defendant, no doubt. For I was in the “Dock”, the little cage where Defendants are held during the proceedings, not allowed to be within speaking distance of their lawyers. I felt trapped. And scared.

But fortunately, a smiling guard brandished his ancient set of fancy keys and opened the gate, eyeing my client carefully to make sure he didn’t try to bolt. I was free. Maybe that is where I got this fascination with prison escapes…

Probably not. It was more Steve McQueen and Clint Eastwood, to be honest, but it does help me understand what was going on in New York. Now I just hope they catch these guys, before they can do any more damage. I mean, they aren’t in a movie at all.

Too bad the Media is so easily confused about that.

Rahim's Alleged Weapon

Although it is never a happy event when someone is gunned down, at first I was almost pleased when I heard the news about the Boston Police ‘taking out’ what appeared to be a dangerous terrorist about to commit some heinous violent crime. But then I did some research. And, as usual, once I had a chance to investigate and actually think about the available evidence, I was confused, which makes me curious about what other people think.

There it was all over CNN.  Dangerous ISIS terrorist pulls giant knife on Boston Police, who were innocently just trying to talk to him, before they are forced to gun him down in self defense!  Wow. Finally. A righteous example of police protecting the public.

Or not, as the case may be.

According to initial reports, Usaama Rahim was shot while waving a large military style knife at them in a threatening manner. Apparently he had been under FBI surveillance for some time on suspicion of terrorist activity, although at first it was not clear exactly what all that entailed. There were some strange details in the initial report; such as the fact that an arrest warrant detailing the terrorist threat evidence had been filed Wednesday afternoon. Rahim was shot Tuesday morning and died shortly thereafter. It appears he was dead before the arrest warrant was filed. Odd.

I believe this affidavit must have been prepared in relation to a second suspect, and not for the dead Rahim, in which case the focus would not have been primarily on Rahim. The fact that the media did not clarify that adds to the confusion, since an important point here is that apparently the police had neither a warrant nor probable cause to arrest Rahim when they approached him. It is very unclear at this point and needs to be investigated further, like many of the conclusions being issued so quickly about this matter. At least that is the approach any decent criminal lawyer, whether prosecution or defense, would take.

There was a video of the shooting, which authorities have been showing to Muslim community leaders in Boston to refute Rahim’s family’s claim that he was shot in the back while talking on his cell phone. It apparently shows that he was not shot in the back. However, the jury is still out on that. The reviews from those Muslim leaders were mixed. According to the New York Times: 

“A group of Muslim leaders who also saw the video later issued a statement that said the video was taken far from the site of the episode and did not clearly show everything that occurred. “It does not appear he was shot in the back,” the statement said, countering the family’s assertion. “No weapons could be identified in the video; neither a knife nor a gun.””

This video needs to be made public as soon as that is appropriate given the ongoing investigation.

Still. Here we had what seemed to be a “lone wolf” ISIS terrorist, intent on beheading police officers, according to the media.

Who could blame them for acting in self defense?

The reports also said that he was planning to behead Pamela Geller, the person who organized the “Draw Mohammed” event in Texas that resulted in a definite terrorist attack, during which the two gunmen were killed after a security officer was shot.

People may disagree about what they think of Ms. Geller. Some see her as a First Amendment Hero, protecting the right of free speech. Others see her as a dangerous antagonist or worse, an anti-Muslim bigot. My main thought about her is that she was either aware that she was creating a strong possibility of innocent people being violently attacked in Texas, in which case I sure hope she warned the poor local police officers who were risking their lives to protect her, or that she did not realize she was exposing the guys who were almost killed to violence, in which case she would be totally irresponsible (I’m just glad I wasn’t working security that day.)

However, any reasonable person would have to agree that beheading her is a completely immoral and unjustifiable illegal violent act. It’s called First Degree Murder in most jurisdictions.

Then, while doing my research about this case, I came across a piece written by Glenn Greenwald, that perennial thorn in the side of his more mainstream counterparts. Greenwald, you may recall, is the reporter who helped Edward Snowden “out” the NSA. Again, think what you will about him, he is a very thorough reporter. Like me, he thinks things before jumping on every bandwagon that passes by.

Greenwald was taking a different approach to the story, as usual. First, instead of branding Rahim as a dangerous ISIS Terrorist he was calling him a “Black Muslim”. That gave me pause. One of my very best friends is a Muslim. And he is a very Conservative Republican who hates terrorists as much as anyone. Some of the most significant icons in modern American culture, such as Kareem Abdul Jabbar and Muhammad Ali are Black Muslims. So when I read that term, it made me feel automatically less biased than when I read “ISIS Terrorist!”, which makes me afraid. Very afraid. Especially where knives and beheadings are mentioned in the same paragraph.

Greenwald claimed that the original Boston Globe report had erroneously reported that Rahim had a machete (rather than a military knife), which may sound more menacing to some. However, being me, I researched Greenwald’s research in order to try to be fair and balanced, and discovered that the Globe article apparently said “military knife” not machete. They may have edited that piece online, but I only have time for a certain amount of research. I have another job, after all.

Greenwald went on to say other things that stood out from the mainstream reporting. He said that they were reporting completely unsubstantiated information provided by the same police agency who had shot Rahim. He criticized one of the original reporters on this story, Cheryl Fiandaca, who he said was biased because she had previously been the “official spokesman for the Boston Police Department.”

If nothing else, he makes an interesting point. He also pointed out that she is the ex-wife of former Boston Police Commissioner Bill Bratton, although my own wife would quickly take him to task for that one. She hates it when people pigeonhole the wife because of who she is (or was) married to. And she is a world-class divorce lawyer, so he wouldn’t want to mess with her. (I should know. We’ve been married almost thirty years.)

More fairly, perhaps, he pointed out that Fiandaca was failing to identify her sources. Given their public positions with the Boston Police Department perhaps that is a valid observation. He goes on to point out that many sensationalist conclusions from Big Media followed Fiandaca’s lead, with NBC News reporting that in essence Rahim’s shooting had thwarted a dangerous sleeper cell about to attack America, with basically zero evidence to back that up. He concludes that all we really know is that another black man is gunned down moments after police first approach him, under circumstances that originated with neither probable cause to arrest nor an imminent threat of harm prior to that contact. The whole thing is uncertain.

Which is my entire point. The fact is that there are precious little facts currently available. Even the video which is purported to clearly justify the shooting is said to be “grainy” and that in the video it is very hard to see any details.

What I would like to see is the video, to begin with.

Then perhaps, eventually once it is safe to do so, the evidence supporting the claims of the terrorist threat. I have no idea what happened. I have not seen a thing. Which is why I am saying we need to be careful before drawing conclusions in these difficult and disturbing situations, something I try to do every day while protecting people’s rights and making sure that they are not tried and convicted without evidence that is both credible and reliable and that has been tested in the crucible of an American courtroom. Something that, apparently, the media does not appreciate. At least that is how it sometimes appears.

 

SheriffStop

Most of us do not want a police state where government officials or police can simply stop you and ask you for your “papers” for no reason.  Yet there is also that righteous indignation about those who “get off” “scot-free” because of “technicalities.” Consider this tension in the context of vehicle stops for minor technicalities. On one hand, no one wants to be stopped on their way to work for failing to follow a perfect vector down the road. On the other hand, we do not want our spouses, children, and friends to be put in danger on the roadway.

Years ago Division One of the Court of Appeals issued what became a somewhat controversial opinion in State v. Prado. You can read more about Prado here or review the opinion in full here. In short, the case concerned a driver who drove across an eight-inch white line by two tire widths while exiting the freeway. The driver was stopped for violating RCW 46.61.140(1) which requires vehicles to be driven “as nearly as practicable entirely within a single lane…” After the stop the driver was charged with DUI. The Court of Appeals ultimately held that the stop was unlawful. It reasoned that the language “as nearly as practicable” does not impose strict liability for minor incursions over lane lines. Ultimately, all evidence following the stop was suppressed. As a result of this “technicality” the charge of driving under the influence against the driver was dismissed.

Prosecutors interpreted Prado as a narrow ruling. The prosecution would argue that minor distinctions would render Prado inapplicable. For example, there is the argument that Prado does not apply to cases that concern more than one incursion over a lane line. Or the argument that even one incursion that is more than two tire widths renders Prado inapplicable. Defense attorneys on the other hand would argue that the Prado holding was broad and not limited to its facts based on language contained in the opinion itself as well as persuasive authority the Prado court relied on. Both sides of the argument would oftentimes pose challenges for Judges who have a duty to apply the law correctly, but also want justice to be served. After all, it might be difficult for any judge to let someone off “scot free” who turned out to be sloppy drunk behind the wheel or in fact committed some other crime. But it can happen. In some cases the law might require it.

Recently, on April 6, 2015, Division One of the Court of Appeals provided more clarification concerning Prado. In State v. Jones, an Anacortes police officer noticed the vehicle she was following passed over the fog line by approximately an inch three times. Each time the vehicle corrected its position with a slow drift. The officer pulled the vehicle over as a result of these observations. The driver was sober, but the police observed a rifle. The driver turned out to be a convicted felon. Accordingly, he was charged with unlawful possession of a firearm.

The driver argued he was subject to an illegal stop under Prado. The state predictably argued that Prado concerned an extremely brief transgression distinct from three incursions. The trial court denied the driver’s motion to suppress based on this argument. On appeal, the court of appeals held the stop was unlawful and reversed. The court explained that the Prado decision did not depend on the fact the driver crossed the lane line once. It clarified that a totality of circumstances analysis applies. Factors such as the presence of other traffic and the danger posed to others should be considered.

But the Jones opinion left open some issues that trial courts will likely continue to wrestle with. In Jones, the prosecution did not produce any evidence that suggested the officer’s training and experience enabled her to suspect driving under the influence. The officer did not testify that she suspected the driver was impaired. The opinion seems to suggest that training and experience in identifying impaired drivers should be considered in evaluating the totality of the circumstances and might tip the scales against granting a motion to suppress. There are a variety of good arguments that defense lawyers can make in response to such a position. However, trial courts will likely continue to wrestle with Prado and its new progeny regardless of the recent clarification. There is no bright line rule in this area.

Next time you are driving, pay attention to the vehicle in front of you as well as your own position on the road. Do you always remain strictly between the lines? Should officers be able to pull you over for one, two, or three incursions over the fog line? Should officers be able to stop anyone for no reason at all? Do you believe that laws (e.g. Prado and Jones) are immoral or wrong because they may require someone who was actually committing a crime to get off scot-free? Post to Facebook and tell us what you think.

 

Brelo

When I first heard the news that there was a verdict in Cleveland Police Officer Michael Brelo’s shooting case I was pleased. I thought it would give me a great opportunity to demonstrate what I had been talking about in prior posts regarding these types of cases: Let the Jury Decide, Let the Jury Decide, Let the Jury Decide. Except this case was not decided by a Jury. It was decided by a Judge. Ugh.

A judge trial, more properly called a ‘bench trial’, is rare. Very rare. As in, you almost never seriously consider it in criminal cases. In divorces, at least in Washington State, you are stuck with them. I guess that is because there is no Constitutional Right to a jury trial in those cases, no presumption of innocence, no proof beyond a reasonable doubt. Just two angry former lovers fighting over toasters and pet dogs and who gets to (or in some cases, has to) take the kids over holiday weekends. [Sorry Mimi and SDS, but you know it’s true. As I always say I’d rather handle a rape or murder case any day than a divorce. Much less nasty.]

But perhaps the real reason that divorces don’t get juries is that there is too much emotion involved, too much smoke and not enough flame, thus making it likely that jurors might get “confused by the facts” as my dad used to say. Which is also the only real reason that you would ever want to “waive jury” in a criminal case. Well, that, and maybe also knowing that your judge had a particular bias, like they don’t like prostitutes and the complaining witness (i.e. “victim”) is a prostitute, or perhaps a bias in favor of the police, which is extremely common in the judiciary, especially since most of them are former prosecutors. Sad but true. Check it out if you don’t believe me.

Here, however, try as I might, I was unable to find any inherent bias with Judge John O’Donnell. Nevertheless, I figured that we could still use this case to demonstrate some basic legal concepts:  Jury vs Bench Trials, Felony Murder, Excessive Use of Force and Proximate Cause.

Jury vs Bench (Judge) Trials

As I’ve said, you only waive jury if you are worried that the jurors’ emotions may overrule their reasoning ability due to “bad facts,” or you are playing to judicial bias. While the second reason may be morally repugnant that is irrelevant in my view, as your first duty is to your client. So long as you are not violating any ethical rules you have no choice. In my opinion, not putting your client first is, in and of itself, unethical. I say this in part because nothing I say here is meant to disparage the criminal defense attorneys on this case, who did amazing work and may have taken a daring risk by waiving jury.

The jury is still out on why exactly they did that. I’d love to sit down with them sometime and find out.

Here there is no doubt that they may have simply been concerned that jurors would not be able to get past the fact that there were so many bullets riddling the victims’ car. There were 137 of them, and 49 came from their client. They had a technical defense, that there was a question of proximate cause of death and that the use of force was reasonable. It is easy to see that the jurors might have had trouble getting their heads around those arguments given all the bullet holes.

But as horrible as it sounds, the fact is that Officer Brelo may have been blasting away at two corpses.

If that was the case (i.e. if the prosecution couldn’t prove that it was not the case beyond a reasonable doubt) then I can see why the defense attorneys might want to have a “neutral and detached magistrate” decide their client’s fate. On the other hand they may have thought he was biased in favor of the police or racist and they were playing that darn “Race Card” or maybe he was running for re-election in a pro-cop jurisdiction. I don’t know. Whatever their reason, apparently they made the right choice for their client, regardless of how I feel about it personally.

One thing is for certain: if their client had been a black man accused of plugging a couple of police officers a couple of dozen times as he stood on the hood of their patrol car the jury would NEVER have been waived. That would have been malpractice. If that sounds like a double standard, fair enough, but it is a double standard based at least in part on legal principles. In this case, the felony murder rule (or I should say, lack thereof in this case).

Felony Murder Rule

The felony murder rule states that whenever a person is involved in committing certain felonies, or an accomplice is, and someone is killed during the commission of that felony, then murder is imputed to all of the felons, whether or not they had an intent to kill. The classic example would be a bank guard being shot when the gun a robber was pointing at them accidentally discharged. No intent to kill, but since it was a robbery, felony murder is charged.

The root of this rule is that committing violent felony crimes is inherently dangerous so if someone gets killed it is not surprising. A sort of strict liability analysis.

Here, if the cops were trying to steal drugs from the victims, then the rule would apply. But instead they were chasing down suspects who had fled from them and during the chase they heard what was described as gunfire, arguably aimed at them. So, they were within their rights to shoot.  At least that is the argument. The issue of whether or not their use of force was excessive is another question.

Excessive Use of Force

This is a very difficult question with no clear-cut answer. It is subjective and depends on the jurisdiction. The ‘heat of the moment’ factor is sometimes part of the analysis in the media, although it shouldn’t be since it implies that if your adrenaline is flowing then it is OK to shoot someone. It is not.

Here the argument is that there was a valid legal basis for Brelo to shoot the victims as he had a reasonable good faith belief that they were armed and dangerous, based on inaccurate but reasonably believable reports that the car backfiring was actually shots being fired at the police. Having heard both sounds myself I agree that they sound very similar. Therefore it is not unreasonable to confuse the sounds and proceed accordingly. At least that is the argument – an argument Judge O’Donnell agreed with.

In his extremely well written and thorough opinion, which reads like a novel, he explains that Brelo had justification for shooting, but that the primary basis for his not guilty verdict was lack of causation. In other words, the prosecution did not prove that he was not shooting at corpses, to be blunt. You can’t murder a corpse.

Proximate Cause

You’d be amazed how often this comes up. We all learned the term in Torts class in law school, studying that brilliant jurist Justice Cardozo’s opinions about scales falling on people and ships coming loose from their moorings. (Yes, IL’s, I know he was actually writing about foreseeability and only issued the injunction in Erie Canal, but I am using some poetic license here. :) ) Causation is also critical in many criminal cases.

A common example is in vehicular homicide cases, where it is unclear that the fact someone was driving drunk actually caused a fatal accident because some other intervening proximate cause may have caused the accident or the death.

A classic case would be a drunk driver hitting a person who had just jumped off of a highway bridge, colliding with them mid-air on their way down to the ground while attempting suicide.

Don’t laugh; it happens. More than you can imagine. The question becomes why did the person die? Suicide or drunk driving? (In Washington this rule is extremely convoluted but I am not going to get into that here.) I would argue that even a sober person would have struck and killed the jumper, and thus the intoxication did not cause the death.

In this case it is a matter of which bullet killed the victims, since there were about a million cops all shooting at once, not to mention that they might have been dead before Brelo did his bizarre Rambo act and jumped on the hood of their car, blasting away. So a very hyper technical defense really, and a good reason not to let a jury decide the case.

Which brings us back to where we began. I was not happy that this was a judge verdict. It would have been so much better for me if it had not been. I could have written about juries and fairness instead of judges and possible unfairness. But that, as always, is not the point. The point is that, like it or not, what we really have here is a very well written judicial analysis and great criminal defense lawyers doing great work. For their client, not me. Or anyone else, for that matter.

Black Cards

I had not planned on talking more about this issue but after being asked some really interesting questions I couldn’t stop thinking about it. It gets so complicated. The best question was whether it is EVER possible to “play the race card”? Of course it is. The problem is that for every time someone “plays the race card” you have twenty people accusing them of playing the race card without justification. Which is the entire problem. Quite frankly, I personally believe that most people who accuse someone of playing the race card are probably racist at some level, if not overtly, then subconsciously. At the very least, they do not have a very nuanced worldview.

However, since playing the race card has come to mean falsely accusing someone of being a racist, then saying someone is “playing the race card” when they are calling an actual racist a racist is to falsely accuse someone of falsely accusing someone of being racist. Everything turns into this crazy fuzzy pretzel logic where you have people falsely accusing people of falsely accusing people of things, which ties in nicely with my experience practicing criminal law, since that is the world I live in every day. False accusations. Or not, as the case may be.

Playing the race card did not always mean simply falsely accusing someone of being a racist. This goes to another question that was asked, about the use of the word “thug” when describing Richard Sherman, and the origins of that word, which is where this whole race card issue suddenly appeared on this blog. Although thug may have originally meant “white gangster” when it was used back in the 1940’s, words and phrases evolve and change meaning over time. Otherwise we would all be running around grunting like cave men (not just the trolls.) More on that in a bit.

As for “race card”, I remember exactly when I first heard someone use the term, who said it, and why. It was Robert Shapiro, one of O.J. Simpson’s so called criminal defense attorneys. “So called” because anyone who talks out of school about his representation like that should be disbarred in my opinion. Confidentiality anyone? It was just plain wrong for him to go public with his opinions about the defense work he was personally involved in, regardless of his reasons, so long as no one was violating ethical rules or committing a crime like perjury or fraud, in which case he would have been ethically obligated to talk. But here he was just calling out strategies. Wrong.

Shapiro took issue with the way Johnnie Cochran was using race to try to win the case. (Full disclosure: Shortly after the trial, Cochran’s law firm contracted with me to be their “Dream Team” representative in the State of Washington. Although I no longer work with them, I still carry around my business card with my name under his firm logo. It makes an interesting conversation piece.)

OldCard

Funny thing though. Shapiro was partially saying it was wrong to call out Detective Mark Fuhrman, a lead investigator on the case for the LAPD, for using the N word in conversation. I guess Shapiro was cool with the main dude who was trying to kill his client lying under oath at trial when he testified that he never used that word.

But what Shapiro was really calling them out for was using race at all to their advantage. Like Cochran’s famous purple suit, or appealing directly to black jurors or having venue changed to downtown LA to avoid an all white jury (with which the DA agreed, by the way). I disagree. I think they were doing something I like to call “Good Work Representing their Client Zealously”, something Shapiro apparently doesn’t know much about. I think Shapiro was just jealous that Cochran stole the limelight and won the case.

White people all know about playing the race card. They tell jokes about it. Like seeing a young African American driver cutting off everyone on the highway, careening wildly around, endangering every living soul out there. They say stuff like “Bet if he gets pulled over he will say, ‘Is it because I’m black?!?’” And everyone laughs hysterically. Do not tell me that you have never heard something like that, white people. I know you have. And that is the problem. This is not a laughing matter. Especially if you are black. Which brings me full circle back to where this entire discussion began, at least on this blog, with Richard Sherman and the use of the word ‘thug’ to describe him after his little tantrum following the Seahawks NFC Championship game against the ‘Forty Whiners’ back in 2014.

The commenter on my blog thought it was ignorant for me to say that using the word ‘thug’ to describe Sherman was code for the N word. The commenter said that in the 40’s ‘thug’ meant white gangster. I pointed out that words change over time and the current use of the word thug derives from a Tupac song that came out half a century after the 40’s called “Thug Life” and that now it is used to describe disaffected black youth… not to mention that calling Sherman a gangster was no better than calling him the N word, possibly worse. I resisted pointing out that not understanding basic etymology is in and of itself pretty ignorant.

And ignorance is really the issue here. Ignorance about race and racism and what it is like to be the other person. Which is where I will leave it. Our society has a problem, not a new problem but a problem nevertheless. We have become so divided and stratified and politically segregated that no one even tries to understand anyone else. I see it every day in my work. My job is to try to explain to righteous prosecutors and biased judges and naïve jurors how things might be seen differently by two different people, no matter how minor or major the disagreement might be.

It might be just a simple misunderstanding. Two people walking down the street might look at each other, one person thinking, “Why is that guy glaring at me? What is his problem? What a goober!” And the other person might be thinking “Gosh, that guy looks just like my Uncle.” See? If they had taken the time to try to understand each other they might have discovered that they were distant relatives.

Because we are all distant relatives, no matter what our differences are. We are all human beings. It is about time we put down the pat phrases and cute comments and cutting criticisms and spend five minutes trying to understand one another. IS that such a huge chore? And even if it is, isn’t it worth the work? Or would you all rather just run around all day and hate each other?

So, white people, next time someone says someone is a racist, before screaming “race card” try to see their point of view, if only for a second. Pretend you are the other person and try to see how they feel. And, African Americans or Hispanics or Native Americans or Asian Americans, when someone is giving you a hard time, before you automatically assume they are racist (hard I know, since so many people are) try to see why they are saying bad things. Maybe it really is your bad driving or whatever. Easy for me to say, I know. I’m white. Which is why I know that I have to be very careful before I jump to conclusions about anyone based on their race. I mean, just because I am white it does not make me a racist. And just because someone isn’t it does not mean that they are falsely playing the race card. Especially when they are not.