“Vindictive and retaliatory” prosecutions: Welcome to the USA!

What happens when you exercise your constitutional right to a trial by jury? Well, if you have sex on a beach in Florida and take the case to trial you might get 15 years in prison and have to register as a sex offender for life. As Jonathan Turley explains, this is just how prosecutors operate these days:

prosecutors now take the view that if they [sic] demand for a plea is ignored, they are relieved on any further duty to be reasonable and just in their indictments and sentencing arguments. I have seen this happen over and over again. It is vindictive and retaliatory against those who want to go to trial. I have had prosecutors tell me that “this is how the game is played” — you defy the state on a plea and they throw the book at you. However, the result is clogging our jails with excessive sentences and maintaining a crippling threat against those who simply want to seek a verdict on their charges.

He’s right, of course. And it’s sad. As one of the commenters on Turley’s page pointed out, the same “crime” in Dubai would only get you 3 months jail and deportation. And this is in a country that still observes parts of Sharia law.

It’s insane that we have laws that would make it possible to imprison someone for 15 years and register for life for having sex on a beach — even in front of children. But it’s equally insane that prosecutors refuse to exercise their discretion to achieve justice. Instead of justice we get ruined lives — not just for the people so perversely punished, but for all of us who have to pay for their incarceration and for the endless bureaucracy and litigation that comes from attempting to enforce sex offender registration requirements. What is the point of all this?

The only hope for these people is that they are before a judge that will have the courage to stand up to this prosecutor and give a sentence more appropriate to the crime. That hope is slim, but I wish them luck.

Child life without parole: The U.S., Somalia, and South Sudan

Last week Cook County Judge Angela Petrone resentenced Adolfo Davis to natural life in prison without the possibility of parole for his actions as a 14-year-old accomplice to a gang-related double murder in 1990. This sort of sentence could only happen in three countries in the world:

Juvenile life without parole is banned in the U.N. Convention on the Rights of the Child, which has been ratified by every country in the world except three: Somalia, South Sudan and the United States. In Somalia and South Sudan, there are no known cases of people serving a life without parole sentence for a crime committed as a minor. In the U.S., there were around 2,500 as of 2008, according to a Human Rights Watch tally.

Oh what wonderful company we keep when we practice purely punitive, rather than rehabilitative, justice. 

Silence is golden, even at passport control

I haven’t had the pleasure of travelling outside the U.S. since all this “border security” and TSA madness, but Paul Lukacs has, and he has a great story about being detained by the feds for not answering questions:

I was detained last night by federal authorities at San Francisco International Airport for refusing to answer questions about why I had travelled outside the United States.

The end result is that, after waiting for about half an hour and refusing to answer further questions, I was released – because U.S. citizens who have produced proof of citizenship and a written customs declaration are not obligated to answer questions.

Check out the followup post as well. Rights, like muscles, must be exercised or they will atrophy and, eventually, disappear.

No privacy for anyone (but esp. the poor).

Scott Greenfield comments on a recent 9th Circuit decision allowing officers to place “a GPS device on the underbed of a suspected drug dealer’s car while it was parked outside of his house” without a warrant. The court found that the defendant did nothing to show he had an expectation of privacy in his driveway, such as putting up gates, security monitoring, hiding the driveway from the street in some way, etc. Greenfield focuses on Chief Judge Alex Kozinski’s dissent, in which Kozinski notes that the court’s decision amounts to a rule that rich people who can afford such privacy and security measures will still be able to enjoy an expectation of privacy in their driveways, while poor people will not. Kozinski’s larger point is that the judiciary (at all levels) is made up almost exclusively of wealthy people who do not understand, or even really think about, the lives of the poor. That means judges have no idea how the majority of Americans live in a country where 69.8% of the wealth is owned by 10% of the population.

So Judge Kozinski is precisely right about the fact that the judiciary is reserved only for wealthy elites (not necessarily the super-rich, although they are well-represented, but people who never really have to worry about paying the bills). Sadly, the same can be said for our other branches of government. Sure, occasionally a poor or working class person might make it into the House, but the Senate? The executive? Forget about it. Call it aristocracy, plutocracy, or oligarchy, our system of government is anything but equal and democratic.

But the shrinking of the Fourth Amendment represented by decisions like this is just as troubling. The whole “expectation of privacy” test was developed in 1967 in Katz v. U.S., a time when constant, nearly-invisible, electronic monitoring of a person’s every movement (GPS) was not possible, nor even really conceivable. Here, the court has found a perfectly logical way to explain why this particular person doesn’t have a reasonable expectation of privacy in his driveway, but what about in every move he makes in his car? Is it unreasonable for an average person to think that his/her every movement is not being tracked and automatically broadcast to the government? Sure, my car might be traveling on the public roads where the government could watch or follow its every movement, but it’s one thing for the government to do that electronically and invisibly, and a completely different thing for the government to do that physically, so that if I was paying attention I might notice the surveillance. The court’s answer to the driveway question is horrible, but that question almost misses the larger point, which is the electronic and invisible tracking of my every movement by the government without a warrant. In what world is this ok? Ours, apparently — unless you have the money for a gated driveway. But then, the government can just tag your car with the lojack when you’re at the supermarket, right?

“The Last Gasp”: Can you take the pain out of executions?

Scott Christianson on the anti-death penalty dinner party argument:

You have to be aware that the government makes mistakes, that the criminal justice system makes mistakes and that it’s possible that an innocent person could be wrongfully accused and subjected to capital punishment. So, you’d have to ask the person at the party: Do you think that is acceptable? 

The Top Idea in Your Mind

Paul Graham:

I’ve found there are two types of thoughts especially worth avoiding—thoughts like the Nile Perch in the way they push out more interesting ideas. One I’ve already mentioned: thoughts about money. Getting money is almost by definition an attention sink. The other is disputes. These too are engaging in the wrong way: they have the same velcro-like shape as genuinely interesting ideas, but without the substance. So avoid disputes if you want to get real work done.

. . .

Turning the other cheek turns out to have selfish advantages. Someone who does you an injury hurts you twice: first by the injury itself, and second by taking up your time afterward thinking about it. If you learn to ignore injuries you can at least avoid the second half. I’ve found I can to some extent avoid thinking about nasty things people have done to me by telling myself: this doesn’t deserve space in my head. I’m always delighted to find I’ve forgotten the details of disputes, because that means I hadn’t been thinking about them. My wife thinks I’m more forgiving than she is, but my motives are purely selfish.

This is actually great advice for public defenders. It’s so easy to get sidetracked by little disagreements with prosecutors or judges or to take adverse rulings personally and forget what’s really important — doing your best for your clients. If you allow your personal struggle with “the system” and its components to become the top idea in your mind you’re less likely to do all the best things for your clients because those things easily become obscured by those petty disputes that really just don’t matter.

I wonder if this is actually the difference between those public defenders who love their work and do it well for decades, and those who are always in anguish and burn out after only a few years. Those who let go of the petty, bullshit disputes and focus on what matters are happier, do better work, and retain their sanity. Those who don’t, well they have to find something else to do because the work just eats them up.

(Via Daring Fireball.)

When the Cop Says Stop — you better stop!

Cycling lawyer” (um, can I have that job, please?) Bob Mionske relates the fascinating story of an out-of-control cop harassing two cyclists in Ohio. He appears to have tried to stop them for no reason, and when they wouldn’t stop he pulled his taser. One of the cyclists ended up getting tazed multiple times. Charges were eventually dismissed and the cyclists are filing a civil suit, but the story illustrates what can happen when men with guns and badges lose control.

Aside from the abuse of police authority, the story grabbed me because in the end, Mionske concludes that:

if the order is unlawful, the cyclist is not required to obey the order, and can’t be arrested for failure to comply. Now, this is the law in Ohio, but it is based on 4th Amendment jurisprudence, so the jurisprudence in other states should be similar. If somebody knows of contradictory 4th Amendment jurisprudence in another state, please let me know.

Um, well, my experience defending more than one obstructing charge is that, if the officer tells you to stop, you better stop. If you don’t, you could end up with an obstructing charge — or worse. Basically, if you disobey a police order — even where the order is unlawful — your ass is getting arrested. Sure, it might be sorted out later and the charges *may* be dismissed, but is it worth going to jail for the night or however long it takes to post bail? No. Just stop. The officer can be the biggest dumbass on the planet, but again, that’s something to sort out later. If the officer here had been our friendly neighborhood cop Johannes Mehserle who claims he confused his taser and his gun, these poor cyclists would be dead, not just dismayed.

As just one example of an illegal stop that escalates to legit criminal charges, see People v. Thomas, 198 Ill. 2d 103; 759 N.E.2d 899 (2001). There, Mr. Thomas was riding his bicycle while carrying a police scanner. An officer tried to stop Mr. Thomas and Mr. Thomas fled. Eventually, officers caught up w/Mr. Thomas and arrested him. They found drugs and he was convicted of possession w/intent. On appeal, the Illinois Supreme Court found that, although the officer’s initial order for Mr. Thomas to stop was not legal (b/c the officer lacked any reasonable suspicion that Mr. Thomas was engaged in illegal activity), the subsequent seizure of Mr. Thomas was legal because he fled and was seized after flight. The flight became a legitimate (legal, constitutional) reason for the seizure.

Following that logic, in the case of the Ohio cyclists, even though the officers initial orders for them to stop were ambiguous and clearly illegal, a court could have found that the subsequent actions amounted to resisting, obstructing, or some other criminal act. They’re lucky the prosecutor didn’t think of adding such charges or they might have been in a different position.

Police have far too much authority in our society, but that’s exactly why you better stop if an officer tells you to. Stop, cooperate, and figure out the legality of it all later.

Defending “The Man”

Congratulations to defense attorney Michael Rains and the defense team for Johannes Mehserle on getting a verdict of involuntary manslaughter for the shooting of Oscar Grant. I didn’t follow the case closely, but based on the headlines I’ve heard, the defense must have been amazing to get this result. Example:

The verdict followed a three-week trial in which prosecutors played videos by bystanders, and witnesses recounted hearing the frightening gunshot that killed Grant.
At least five bystanders videotaped the incident
Mehserle, 28, testified that he struggled with Grant and saw him digging in his pocket as officers responded to reports of a fight at a train station. Fearing Grant may have a weapon, Mehserle said he decided to shock Grant with his Taser but pulled his .40-caliber handgun instead.

It’s easy for criminal defense attorneys to see police as the enemy — it’s the cops who stop and arrest our clients, the cops who testilie and put our clients in jail and prison — so defending a police officer could be a moral challenge for some defense attorneys. Apparently not for Mr. Rains.

On the other hand, the reason the state wins so often is because judges and juries tend to believe cops over everyone else no matter what the other evidence suggests. With that in mind, I’m sure people will argue that the defense work here was just a matter of showing up and not screwing anything up too badly. (Imagine, for example, that the facts were reversed and Mehserle was the civilian who shot a police officer — getting involuntary manslaughter on that would really be amazing.) But even a serious jury bias in favor of the police cannot explain this verdict. The defense team convinced a jury that Mehserle confused his gun with his taser. That’s completely unbelievable, not only because the gun definitely weighs far more than the taser, but because an officer carries these two weapons in different places. It’s not like they are identical and sit side-by-side on his hip. Finally, Mehserle didn’t come up with this defense at the scene, nor was there any evidence that he was claiming this mistake until after he’d talked to his attorney. The fact that the jury came in with an involuntary verdict on those facts is nothing short of amazing.

The San Francisco Chronicle is trying to dampen public unrest by arguing that this was the appropriate verdict. Perhaps it was, but even if so, that doesn’t make it easier to accept that a cop gets a slap on the wrist for shooting a man in the back for no reason.

Anyway, great job, Mr. Rains, great job.


From the Public Defender Revolution Store. This would look great in every office and courtroom in America. Yep! (But when the revolution comes and we replace all those framed portraits of dead white guys in offices and courthouses with framed posters like this we should change it to “We Want to Believe.” Maybe. Just a thought, you know, for when the revolution comes.)