Category: criminal law

Wrestling with Brock and Sentencing (or Let’s abuse the ref)

Today we start our series looking  at the Brock Turner Sexual Assault Case by examining both Judge Aaron Persky’s sentencing of Turner to Six months jail time and the public reaction to the sentencing. In terms of sentencing, Judge Persky’s decision to sentence of six months jail time, along with lifetime sex offender registration, and three years probation have come under serious fire. It has even sparked an online petition for the removal of Judge Persky with signatures from all over the nation. People calling this a sign of how none of this is taken seriously. And it all raises a serious question:

Have you lost your minds?  Continue reading “Wrestling with Brock and Sentencing (or Let’s abuse the ref)”

Wrestling with Brock (not the entertaining one. The rapist).

Yes, I said it. I called Brock Turner , former “All-American” swim star, a rapist. Though he was never convicted of rape, it was not for lack of trying. He was found on top of a semi-conscious or unconscious woman when two male students approached, wondering just why there were two half-naked people behind a dumpster with only one of them seeming to be involved in this tryst. And then Turner ran but was caught by these two men who clearly felt Turner had some explaining to do.

By now, you probably know the story. The victim, a fellow student, by her own admission, was intoxicated. Blitzed. Bombed. Three sheets to the wind. I could go on and come up with a slew of descriptions. She never denied it, never tried to portray herself as the sainted lady of Stanford. She had little to no memory of anything that happened. The Defense made her lack of memory a key part of their defense and their points of attack and they should have (more on that later).

But, in the end, it was  unsuccessful in the trial phase.  The jury was convinced beyond a reasonable doubt that Turner had indeed committed the three alleged violations of the law. The conviction is not that surprising because, as we say these are “bad facts” for the defense and “great facts” for the prosecution. Two witnesses, with no known connection to either Turner or the victim, testified to seeing him in the act and run when they approached. (Quick sidenote fellas: If you and a lady are getting it on outside and two guys come upon you, your first instinct might be to tell her “Let’s go” and gather your clothes and yourselves and leave. If you leave her there, possibly vulnerable to two more guys, it’s going to be very hard to believe she was a willing participant and impossible to believe you are not a classless coward of the first order).  A conviction was almost a foregone conclusion. But it was not the verdict that has created the outcry here. It was the sentencing and the reactions of some people to said conviction and sentencing.

And some of those reactions, while understandable are wrong. And some of those reactions are also right.

So as to not take up too much time today, Friday we will start a series we are doing on the Turner matter and its broader impact.

-I will address the Sentencing and why efforts to recall the Judge show less of an interest in “justice” than people think;

-I will address how the outrage against lawyers in sexual assault cases is misplaced and shows a terrible misunderstanding of how the law works and why;

-I will address the very real danger of sexual assaults and how the law deals with it, including addressing false accusations (though the Turner matter is about as far from a false accusation case as they come);

Before that series begins there is something of importance that merits remembering. It has been said that women getting drunk at parties or alone in a guy’s room are like keeping the keys in the ignition of their unlocked car or leaving your house unlocked. And there may be some truth to that. But where the arguments fails is that if one leaves their keys in the ignition of their unlocked car, it does not just magically leave. A thief HAS to take advantage of the opportunity to be a thief. If you leave your house unlocked, someone still has to go into the house and commit burglary or a slew of other offenses. So, logic would tell us that to sexually assault a drunk person, it requires someone willing to sexually assault someone. Someone willing to take that next step. Unfortunately, that is what it takes to get accused of such an act. That takes less. But to actually do it? At some level, someone’s mind has to be committed to ignoring the humanity of the person in front of them.

I have known many guys, hell I have been one of those guys, who thinks he might be getting lucky tonight, then the young lady has succumbed to alcohol, and he realizes “I guess I am not getting lucky tonight” and so he calls it a night. He makes sure she gets home safe or he lets her sleep in his bed while he takes the couch or floor or he leaves, if it’s not his place. Again, it seems obvious and I can not imagine having that conversation with a young man, telling him, “oh and by the way if she passes out, don’t try to get sexual on her” because it seems so self-evident. According to several people who speak of “rape culture”, maybe it is not so self-evident and we need to have some serious conversations with our boys and young men. Even scarier is that it is self-evident, and so many just do not care.

But, on the other hand, who wants to tell anybody just waking up that she (or he) has been violated and it could have been even worse?

 

Sick and tired of being Sick and tired

The headline for this post is an old one. For many people, it won’t be familiar. But, if you study enough history, you know where it became famous. But before we do the reveal, let’s start with a simple story.
Continue reading “Sick and tired of being Sick and tired”

Why #bluelives matter is the wrong phrase and the wrong cause (Part 1 of 4)

“I knew he had crossed the line to where I could have used deadly force, but I just felt that, you know, just because you can take a life, it doesn’t mean you should.”–  New Richmond, Ohio Police Officer Jesse Kidder

Recently, we have seen an uptick in the reporting of deaths and abuse by unarmed individuals, usually black men, at the hands of law enforcement officials or law enforcement wanna-bes. And the responses have become pretty routine. From some circles come the cries “We told you this was happening” followed by “No justice. No Peace”. Then from other circles come the cries of “He was asking for it”. Back and forth it goes. But, there is one series of responses that I find both fascinating and troubling. Silence. And it’s a silence not based upon lack of thought but based upon the premise that the life of a law enforcement officer is more valuable than the life of anyone else no matter what. And that is a recipe for disaster.

THE BACKGROUND

Before some start shouting that I am just “anti-cop” we need to remember a few facts. I come from a family that has cops in it, including those harmed while doing the job. I lived with a corrections officer for over a year. I was a prosecutor in two different states where I worked closely with law enforcement personnel and gained a reputation as being an aggressive prosecutor protective of law enforcement. I also was the primary attorney defending law enforcement personnel against accusations of violating the civil rights of citizens. I recall a childhood friend, Roy Wade, one of the nicest and most giving men you could ever hope to meet, becoming a Long Beach police officer and being shot and seriously injured very early in his career during a routine matter. So, I am very familiar with that world. This is not about being anti-cop. But it is about questioning how far being “pro-cop” should go.

THE MEASURE

With recent riots or uprisings or whichever phrase suits your palate, the same responses come back over and over. There are people condemning what they call the social failings of the inner city (code for black) communities. Of course, if these failings exist, they were there long before the riots, right? If there is a “disrespect for law and order” it was there long before the riots, right? And yet, these riots do not happen every day. In other words, the same ingredients and factors exist every day yet nothing happens. So what changes? The presence of “thugs”? Again, if those “thugs” and thugs (real thugs do exist. Including those who are often idolize and emulate the Sopranos and Sons of Anarchy), then why are there no daily riots, weekly, monthly or annual riots? What changed?

Someone unarmed is killed by a governmental operative under color of authority of law. That is what happened. These protests do not start when the police kill armed suspects. Almost everybody understands those killings.  It’s the unarmed ones that raise questions.

It’s the man shot when he made no threatening statements or movements and had his wallet in his hand.

It’s the mentally ill man whose crime was knocking on several doors and not complying with the officer’s commands. He wasn’t carrying a weapon. Considering he was naked, he was not carrying much of anything.

It is the guy who reached for an officer’s gun (never a wise move at all), did not get it, was tased and then shot by four officers. Again, he was unarmed at the time he was shot.

It’s the unarmed people shot in the back while running AWAY from the police.

It’s the guy shot for throwing rocks. For heaven’s sakes, the Israeli army faced that for years and showed greater restraint.

It’s the guy shot in the back while laying face down.

It’s the guy in his pajamas, shot while holding a spoon.

It’s the 12-year-old with toy gun who was shot immediately when the police arrived. No discussion, no warnings, just immediately shot and in direct contradiction to the officer’s accounting of what happened.

It’s the unarmed, handcuffed individuals who mysteriously are able to take guns and shoot themselves in the back of the head.

It is the man, shopping in an Ohio Wal-Mart, holding a BB gun he had picked up off a store shelf. Did I mention that Ohio is an “open carry” state? So, even if it had been a real gun, there was no crime or threat of a crime. Again, the police shot him immediately. Though, as you may have guessed, that is not what they wrote in their reports.

It’s the guy shot while running AWAY from the police.

It’s the person who dies while in police custody under questionable circumstances.

It’s the man shot by the cop who can’t tell the difference between his taser and his firearm.

And this happens and will happen over and over again because we believe that its more important for a police officer to come home no matter what than it is for someone else to come home alive. And when you have friends and family that are cops, it is an easy mindset to have. It’s an understandable mindset to have. But on a societal level it is a dangerous one. Because you have decided that even when an officer is wrong, it is ok. In the above examples, an officer could be right or could be wrong, but to many people it does not matter. All that matters is that the officer survived and protected “society”.

And that is not just a current trend. Historically, the poor, the disenfranchised, the non-white have always mattered less. In both law and tradition, those lives mattered less to society. Just another dead nigger. Just another dead spic. Or the popular NHI.

What’s “NHI”? It means “No humans involved” It’s a phrase oft used by police, judges, and yes prosecutors (full disclosure, I am quite sure I said it myself) in reference to a crime where both victim and suspect are less than desirable. Usually members of the underclass. Often junkies or homeless. You know, people, who still have a right to live to avail themselves of the justice system.

Historically, crimes against those people, especially when committed by the police, did not matter. They were swept under the rug. No fanfare, no investigations, just turning and burning. Few resources allocated. And that history is a long one. Certainly some places have responded better than others, but it still happens. Protests form designed to get the powers that be to care. To get them to act. And while the acts may not always end up in justice being served, the outcomes are always easier to accept when you feel that those in position of authority and society as a whole gave enough of a damn to take a second look.

WHERE BLM IS WRONG
So when somone points out that yes, the lives of people in their communities do matter we inevitably now get the postings on social media of “#bluelivesmatter” and the screaming of how police lives matter, as if this is somehow a new and radical thought. This would be understandable except for one glaring problem?

At what time in our history have we ever acted like police lives don’t matter? I sure can not think of one.

When an officer is so much as injured, other officers respond swiftly and often with brutal and sometimes deadly force. And very little if any investigation is ever given to those circumstances. Because we have held to the idea that if you hurt a cop, you deserve any retribution that comes next.

When an officer is killed on duty, even when the death itself is not exactly “heroic”, we praise the officer as a hero. One of our finest and a host of other platitudes. We offer a funeral with full honors, often attended by other officers from other departments in a sign of solidarity. If a suspect in the killing is at large they find the full extent of the law enforcement resources pointed right at them. And if a suspect is caught, no (legal) stone goes unturned in trying to convict the accused. In some cases, that effort has gone so far as to intentionally hide evidence from the defense in more than one documented case. This may lead some reading to say, “well there are always some bad apples” while ignoring that you can throw out bad apples. For decades, throwing out “bad” cops has been much harder to do.

There are statues and memorials to honor the fallen officers in almost every county in the nation. I distinctly recall the annual ceremony held in Shasta County in front of the courthouse honoring the dead. And though it was several years since the last Shasta Peace Officer was killed in the line of duty, seeing people you work with every day, knowing that any one of them could be snuffed out in a hairs’ breath is sobering and disconcerting. So, we understand the fear and concern for officer safety. (To my knowledge, the Fire Departments in Shasta County had no such ceremony. If so, it was not nearly as publicized or well attended).

And it is clear that we as a society think those lives matter. We have enhanced penalties for doing anything to an officer, one of the few professions accorded that protection. And while officers enter a profession they know is potentially dangerous not everyone who comes into contact with the police is making the same educated decision. In too many cases, they are dead before they can make any decision. So, when people hear of a police officer being killed and respond with that thin blue line, that is a normal moment of recognition. But, when they add “Blue lives matter” it is a co-opting of another movement and it tells those members of that community, “blue lives matter MORE”. One community argues that their lives are worth recognition, consideration and respect and we should not be so eager to accept that killing them means nothing. The other says they should never be questioned and no matter the circumstances their lives mean more. Does everyone who say that mean to give that impression? No. But, it is there and they don’t care that it is.

In this series, we will take a look at how we got here. How we created an environment in which we risked making the police unaccountable and in turn made the job even more dangerous. How we did it with law, tradition, training and the police subculture. We will see how apathy from members of the public who know darn well they are never going to be on the receiving end of police abuse and misconduct (and it is not because they always follow the law) , it festered. We will see how new technologies and social movements have changed the conversation and not always for the better. We will also contemplate where we go from here because we certainly need to go somewhere from here.

 

Back Again, and boy did we miss a lot.

Yes, it has been awhile. In our legal life, I have been hard at work on a series of cases that have required a great deal of travel and time. And it means we missed a lot. From police shooting unarmed civilians to Wrestlemania, to the end of Better Call Saul and the debut of Daredevil. There is a great deal going on out there and we will try to touch on a little of it here.

 

Better Call Saul.

From the creators of the award-winning BREAKING BAD, AMC has another prestige prize in BETTER CALL SAUL (“BCS”). The show is well written, well cast, well acted and a lot of fun. Prequels are always tricky business because you already know where several characters are going wind up. But, when done right, we can see a fascinating journey for both James “Slippin Jimmy” McGill (played by Bob Odenkirk, who may never known for comedy again after this) and Mike Ehrmantraut (Jonathan Banks, proving again he is pure gold). A journey that shows how the future Saul Goodman (Jimmy) was once a man who desperately wanted to be respectable and how his efforts failed and led him to the criminal he would become.

What I find as a solid plus to the show is how well it shows the legal profession. We see the large reputable law firm for which Jimmy’s brother, Chuck, is a name partner and leading rainmaker. We see the power and prestige of those larger firms and how they can, on occasion, show disdain for the little guy. But, it goes deeper. We learn how some of those big firm boys and girls actually come to like and respect Jimmy because of his intelligence and tenacity. When we meet him he is working from the back of nail salon. Admittedly, I actually live in a house and most small firm or solo lawyers I know do as well, but the idea of having to bust your hump to find the right way to become a quality player in the legal field really resonates.

Until THE PRACTICE, television shows about Law firms tended to show the glitz and the glamour. Rarely did they show the drudgery or even the fear of the law. Yes, this business can be scary, especially when you lack the pedigree of coming from the right schools, or right firms, or even the right families in some cases. BCS does that and more. Including Jimmy’s search for the right area of law in which to focus his practice, a problem many a lawyer has gone through.

DAREDEVIL

I confess, Daredevil is one of my favorite comic book heroes of all. Every year I re-read Frank Miller’s run on the book, especially the incredible BORN AGAIN saga. Because the Ben Affleck film was such a disappointment, I had high hopes for the new series on Netflix. And my hopes are met. It is a dark series and for the first half of the series, it is more of a great crime and action show than a super- hero show. The show draws heavily upon Marvel lore to establish each of the players and is pretty well grounded or as grounded as you can be with a protagonist who is blind but has enhanced senses and a radar sense.

As a legal show, while it shows the work of Franklin “Foggy Nelson and his blind partner, Matt Murdock, early in their careers, it does not spend a great deal of time going in-depth with the law. This is a shame because to see how the law is used or abused in the Marvel Cinematic Universe, of just how it functions can lead to a variety of intriguing storylines. We may see more of it as time goes on, since it Nelson and Murdock are the lawyers of record for many of the inhabitants of the Marvel Universe. Combined with the contradictions of Matt’s double life and his conflicted existence of lawyer by day and law breaking vigilante by night, I think there is room for a good legal show inside this series.

Police Shootings

Sorry, folks but this is going to take a whole new post to address. Since we were last here we have had the unique experience of watching a police officer actually get charged for murder. Again, were it not for the existence of citizen’s video this would have never happened. First, it involves police officers. Secondly, there is the racial component (white officer vs. dead black guy, cops account wins out) and, finally it was in South Carolina. These three factors historically lead to cursory investigations that always presume the killing is justified because the officer said so instead of looking at any evidence that may say otherwise. In this case, the video directly contradicts not only the officer who did the shooting, Michael Slager, but the second officer on the scene as well.

This is tragic on more levels than we can count because it comes right after three other high-high profile police related slayings of unarmed individuals and just before the Freddie Gray matter in Baltimore. These incidents do a great deal of harm because slowly but surely trust in law enforcement is getting eroded.  Police rely upon judicial and statutory rulings that encourage the use of deadly force first. These rulings reduce the chances that law enforcement will be given less lethal tools to do their jobs, including training in de-escalation. The history of officers willing to cover for each other or at least turn a blind eye to the wrongdoing of fellow officers is long and the backlash against those who say anything about police wrongdoing within those departments is also long. This mistrust then increases the danger to officers because at some point the public sees that badge, gun, and uniform and becomes automatically frightened. Or I should say some members of the public because it also painfully obvious that the police have a pretty good idea of who they can get away with abusing and who they can not.

Part of this tragedy is that there are many departments who have made concerted efforts to not be invading armies, but be protective members of the whole community. They are trained in cultural awareness in order to reduce misunderstandings. They have encouraged officers to move into the cities and neighborhoods they patrol. They have learned ways to de-escalate potentially dangerous situations while also remaining well versed in the use of physical or deadly force because, sadly, at some point any officer can be in the situation where there truly will be no choice but to use that force.

What we should be asking for, no, what we should be demanding is better training so that officers are not making these kinds of errors. We should give them tools to make better decisions. We should not have officers afraid of showing remorse and saying, “I thought it was him or me and I was wrong. I am sorry”. And yes, that might mean writing a big check, but ladies and gentlemen we are doing that anyway. Police departments across the nation pay big time for settling lawsuits because of either unlawful deaths caused by officers or other illegal actions. And the individual officers never pay a dime for that. The cities and counties do, and in turn, that money is taken from that law enforcement agency’s budget. So next time you hear police complaining that the department has no money, go look up how much money was paid settling lawsuits.

In short, these things are costing us all something. Life, liberty, money, or trust. We are all paying for this. Well, almost all. And if we do not get a handle on it, it is going to cost much more.

Crime, Drug Rehabilitation, and Exclusions: Part 2 of our look at Prop. 47

There are many in law enforcement who claim that Proposition 47 reshapes criminal law to allow for drug addicts who commit crimes, outside of being in possession or under the influence of a controlled substance, to receive reduced sentences. While it does allow for reduced sentences for thefts under $950 committed by nonviolent offenders the law applies equally regardless of whether the person is a drug addict or not. Continue reading “Crime, Drug Rehabilitation, and Exclusions: Part 2 of our look at Prop. 47”

Proposition 47: What it does and does not do. Part I

On November 4, 2014, Californian voters passed Proposition 47, titled the Reduced Penalties for Some Crimes Initiative. The initiative reduces the classification of most “nonserious and nonviolent drug crimes” from felonies to misdemeanor charges.[i] It was immediately met by many, especially in law enforcement circles, as the End of Days. We want to take a minute to discuss, in two articles, what Prop. 47 does and does not do, and why. Continue reading “Proposition 47: What it does and does not do. Part I”