The Justice League Strikes Again
Superheroes for the New Age
In case you thought there was any life in the 4th Amendment which prohibits unreasonable searches and seizures of our homes, the US Supreme Court’s 5 X-Men mutant warriors have stomped again on the corpse.
Antonin Scalia, The Robed Crusader — whose superpower is the ability to erase The Constitution, indeed, all of judicial history — wrote the majority opinion that killed it.
With his faithful sidekick, Clarence Thomas, and the newest members of The League - CJ "LONG JOHN" ROBERTS & SAM ALITO the Magneto - Scalia is finally winning the never ending battle to make America safe for Police Power, Government, and Business interests!
ONCE UPON A TIME, IN THE DARK NIGHTS OF GOTHAM'S PAST, WHEN COURTS WERE BOUND BY THE IMAGINED RESTRAINTS OF THE CONSTITUTION ....
Policeserving search warrants or seeking to make an arrest in a house were forced to first knock, announce their presence, and give a reasonable amount of time for the occupants to let them in.
They could break in if there is no response in a reasonable amount of time or if there was an “exigency,” such as a reasonable belief that the occupants would destroy evidence before entry or have access to weapons.
The rule was put in place by the weak minded WARREN COURT and codified in statutes as in California Penal Code sections 844 & 1531
... intended to protect the right to privacy, and to protect occupants and police from a violent confrontation resulting from a sudden break in, startling frightened householders.
To enforce the rule, courts since 1914 excluded the evidence seized in violation.
This exclusionary rule is what stuck in the throats of The Justice League for all this time. That the criminal should be freed just because the constable blundered was a travesty!
The Robed Crusader finally gave voice to the alternative remedy long proposed --- the homeowner can sue the police officer for violation of his rights!!!
I remember when the exclusionary rule was under attack from the Right and I took an informal poll of police officers I ran across while in court. I asked them whether they would prefer to be sued rather than have courts exclude evidence. I found very few cops who wanted to be sued.
Of course, few will do so — especially if they are in prison. There will be some extreme cases — as history shows — in which the police break into and trash the wrong house, shoot innocent occupants, get shot themselves by people protecting their “castle.”
AND SO ... a new day is dawning on Gotham ...
Because of the youthful vigor of the NEW MAJORITY, THE JUSTICE LEAGUE MAY FLOURISH FOR THIRTY YEARS ... giving America at long last the ORDER it needs to thrive ...
... and the Justice and Justices we deserve.
Friday, June 16, 2006
Saturday, June 10, 2006
"THOU SHALL NOT KILL"
This really happened a long long time ago in a far far away place I used to love called publicdefenderworld. I've told this story so many times that I am no longer sure that my version is perfectly accurate. I''ve changed some of the names to protect privacy. But the rest is true, as best I recall.
Edith Morgan was a nice lady. She worked as a secretary at a Compton school and had a daughter that she was raising right. Edith was what we would call today a full-figured woman, but back then it wasn’t fashionable. She was to tell the truth dowdy, frumpy, a bit unkempt looking. Low self-esteem seemed appropriate for Edith.
Edith had a sometime man, not much of a man, but a man. Johnny Marks visited a few nights a week for dinner and slept over, and they went out sometimes. On him when he was flush, but mostly Edith picked up the tabs.
What Johnny did on the other nights Johnny did. Edith didn’t want to know who else was picking up the tabs for his dinners and drinks on those nights. That was his business and Johnny didn’t bring his business into Edith’s house.
Until one evening Edith got a call. A harsh voice demanding to know if that son-of-a-bitch was there.
Edith asked who was calling, in the same mild voice she used answering the school phone. But the woman on the other end was having none of that.
“Listen, bitch, if you’re entertaining my good for nothing man, I’m gonna come over your house and whip your fat ass. You hear me, bitch?”
Shaken, Edith hung up the phone. She knew who the caller was. Everybody in the neighborhood knew Cherisse Evans. She had been one of the girls in high school that Edith and the other nice girls and most of the boys avoided rather than get an earful and maybe worse.
The call had broken the understanding between Edith and Johnny - don’t ask and don’t tell - about Johnny’s complex life apart from her. Edith didn’t care that Johnny messed with Cherisse or any other woman, but apparently Cherisse felt differently about the issue.
Johnny was apologetic but unconcerned. Cherisse was an ill wind, but that’s all she was. He went back to his beer and ball game on the t.v.
Ten minutes later, the screen door rattled and Cherisse’s formidable shadow loomed in the doorway, accompanied by a flood of expletives.
Johnny remembered for a moment that he was a man and shooed Edith into the bedroom while he would take care of the situation. Edith sat on the bed, cowering, her hand on the telephone, as she heard the shouts from her living room.
Edith remembered where she was - in her own home that she was paying the rent on so her daughter didn’t live in the projects. She picked up the little gun, the simple little .22 Saturday night special that Johnny had placed on the bed table — for her protection when he was away, he had said.
With the gun at her side, Edith went back into the livingroom and demanded that Cherisse leave.
Cherisse interrupted her rant long enough to glance at the small round woman facing her. She laughed.
“That little old thing you got ain’t gonna scare me, bitch.”
She took two steps toward Edith with arms upraised in fists. Edith lifted her arm, closed her eyes and the gun went off, hitting Cherisse through the heart. The body must have hit the carpet with the force of a 3.1 temblor.
Turning the body over, police found a long screwdriver in Cherisse’s hand. Johnny wasn’t much of a witness. He was too scared to remember much.
“It all happened too fast.”
The detective took Edith’s statement. The tape was amazing to listen to. She’s crying, whimpering, asking “Is she alright?” Praying for the woman she shot to make it.
The cop consoled her by lying: “Yeah, we think she’s going to make it.”
He kept asking one question over and over again: “When she raised her arms and came toward you, did you see anything in her hands?”
Edith kept crying, saying she was scared, how it all happened fast, and how it was a blur, and how she didn’t even remember shooting the gun. He kept asking, urging her to say the magic words that will mean self-defense, justifiable homicide.
The best he could get from Edith was “Maybe a glimpse of something, I’m not sure.”
“You mean a glint, like metal?”
Through the tears, “Maybe something like it. Oh, Lord, please don’t let her die.”
The detective presented the case to the DA. He gave his opinion, nothing more than a voluntary manslaughter, but he could take a no file and be happy.
The DA filed murder. That was their policy. If she wanted to plead to manslaughter, that’s okay. Overfiling helped the stats and forced a plea in most cases. No one wants to face life.
At the preliminary hearing, the judge sensed the detectives doubts, dismissed the murder and held her to answer to only manslaughter. Following the custom, the case was sent to my court, Department 101.
My judge was Bill Drake, who had been a deputy sheriff, then passed the bar and was a practicing criminal lawyer when he was appointed by Judge Arthur Alarcon to replace Irving Kanarek in the Onion Field murder trial over the objections of the client who was not thrilled to have an ex-cop defend him in the most sensational cop killing trial in L.A.’s history.
My calendar DA was Paul Pluté, a mean little bastard who liked to torture anyone taller than him, which meant most of the world. He wore cowboy boots to raise him to eye level of a bull so he could spit in the bull’s eye. Pluté refiled the murder with a smirk.
I filed a 995 motion to get it dismissed, though Drake never dismissed anything that Pluté didn’t want dismissed. I got lucky when Drake was too busy to hear the motion. It got sent to a different judge who, though he didn’t have the balls to dismiss the whole case, at least kicked the 187.
Eventually, we got sent out for trial to the civil courthouse before Judge Norman Dowd, a meek little man who was put out by having to try a criminal case after he had earned his escape from the demeaning work so he could relax in his chambers coercing money settlements.
The trial was not very long. My client testified and she was fine. It sounded to me like a self defense and eleven jurors agreed. A twelfth didn’t, hung it 11-1 for acquittal.
Sometimes back then, judges would dismiss in those cases. Sometimes DA’s laid down. Not this time. Pluté had assigned the case to one of his underlings, a beefy simple-minded soldier named Joe Howard. Joe argued against dismissal, claimed a second trial would produce new evidence of guilt.
The new evidence was mostly in Joe’s mind. Joe had that football lineman mentality — he kept pushing until the game was over. Once he made up his mind to go forward, the case was like a blocking sled.
Joe heard Edith’s testimony that she had raised the gun, and that “it went off.” To him that meant she was claiming, not self-defense, but that the gun accidentally fired. He would disprove that to the jury.
He brought in a trigger-pull expert from the Sheriff’s office across the street in the Hall of Justice. The Deputy Sheriff wandered in with a hassled look on his face.
From behind the man I heard a familiar squeaky voice.
“Hi, Morty.”
“Ricky? What are you doing here?”
Ricky was my cousin, who was trailing close behind the Sheriff’s man.
“I’m interning with the Sheriff,” Ricky said, smiling with pride. “I didn’t know you were the opposition on this case. You’re not going to win this time, you know. We really know our stuff.”
The Deputy Sheriff rolled his eyes and directed Ricky to a seat in the audience.
I whispered to the Deputy. “Who’d you offend in the Department?”
He shook his head. “God knows.”
The Deputy spent the next hour explaining trigger pull to the jury, concluding what I had conceded all along - the gun did not have a hair trigger, just the normal, something like three or four pounds, pressure needed to do the job.
This time I didn’t have to put my client on the stand again because Joe had her tape played and her testimony from the first trial read.
Joe Howard stood to give his summation. He had a big man’s walk, stiff-legged due to old knee injuries, and it made him seem even more intimidating, like Frankenstein.
He manipulated the blackboard toward the jury and scrawled in chalk: THOU SHALL NOT KILL and underlined it with a screech.
He walked to the podium and reviewed the facts of the case that the jury had just listened to.
Then he got to the part about Edith’s version. He lumbered to the blackboard, holding his pen in his paw and jabbed at the words he had written there. His voice boomed:
“Thou shall not kill. But she did kill. She said the gun just went off. But I proved to you beyond any doubt that it couldn’t have gone off by accident." He waved his arms to the heavens and swung them dramatically. "... She aimed the gun ... and she fired the gun — ”
And the pen flew out of his hand and hit one of the jurors smack in the chest.
There was an instant’s gasp.
And then the laughter started. The jurors laughed so hard that some of them covered their faces. I doubled over and looked to the bench.
The judge was Dick Tevrisian (now on the U.S. District Court). Dick’s dark bald head was crimson and he turned his high back chair away so the jury couldn’t see him wiping the tears of laughter from his eyes.
Chet Mitchell, the burly African American bailiff had his head down on his desk, shaking with laughter. I avoided looking at my client. She had been appropriately whimpering softly throughout the trial, and I didn’t want her to catch the giggles from me.
Howard waited for the ruckus to die down. With perfect timing, he gently retrieved his pen from the juror he had “accidentally” assaulted. He then picked up from the exact point he had left off with exactly the same righteous wrath:
“— She fired the gun with deadly accuracy into the chest of the poor woman.”
Another round of laughter followed.
My argument was short. I began saying something like this:
“I have some good news and some bad news. The good news is that I’m not going to hold a pen in my hand when I argue. The bad news is that he gets to argue again.”
This time the jury acquitted.
Edith Morgan was a nice lady. She worked as a secretary at a Compton school and had a daughter that she was raising right. Edith was what we would call today a full-figured woman, but back then it wasn’t fashionable. She was to tell the truth dowdy, frumpy, a bit unkempt looking. Low self-esteem seemed appropriate for Edith.
Edith had a sometime man, not much of a man, but a man. Johnny Marks visited a few nights a week for dinner and slept over, and they went out sometimes. On him when he was flush, but mostly Edith picked up the tabs.
What Johnny did on the other nights Johnny did. Edith didn’t want to know who else was picking up the tabs for his dinners and drinks on those nights. That was his business and Johnny didn’t bring his business into Edith’s house.
Until one evening Edith got a call. A harsh voice demanding to know if that son-of-a-bitch was there.
Edith asked who was calling, in the same mild voice she used answering the school phone. But the woman on the other end was having none of that.
“Listen, bitch, if you’re entertaining my good for nothing man, I’m gonna come over your house and whip your fat ass. You hear me, bitch?”
Shaken, Edith hung up the phone. She knew who the caller was. Everybody in the neighborhood knew Cherisse Evans. She had been one of the girls in high school that Edith and the other nice girls and most of the boys avoided rather than get an earful and maybe worse.
The call had broken the understanding between Edith and Johnny - don’t ask and don’t tell - about Johnny’s complex life apart from her. Edith didn’t care that Johnny messed with Cherisse or any other woman, but apparently Cherisse felt differently about the issue.
Johnny was apologetic but unconcerned. Cherisse was an ill wind, but that’s all she was. He went back to his beer and ball game on the t.v.
Ten minutes later, the screen door rattled and Cherisse’s formidable shadow loomed in the doorway, accompanied by a flood of expletives.
Johnny remembered for a moment that he was a man and shooed Edith into the bedroom while he would take care of the situation. Edith sat on the bed, cowering, her hand on the telephone, as she heard the shouts from her living room.
Edith remembered where she was - in her own home that she was paying the rent on so her daughter didn’t live in the projects. She picked up the little gun, the simple little .22 Saturday night special that Johnny had placed on the bed table — for her protection when he was away, he had said.
With the gun at her side, Edith went back into the livingroom and demanded that Cherisse leave.
Cherisse interrupted her rant long enough to glance at the small round woman facing her. She laughed.
“That little old thing you got ain’t gonna scare me, bitch.”
She took two steps toward Edith with arms upraised in fists. Edith lifted her arm, closed her eyes and the gun went off, hitting Cherisse through the heart. The body must have hit the carpet with the force of a 3.1 temblor.
Turning the body over, police found a long screwdriver in Cherisse’s hand. Johnny wasn’t much of a witness. He was too scared to remember much.
“It all happened too fast.”
The detective took Edith’s statement. The tape was amazing to listen to. She’s crying, whimpering, asking “Is she alright?” Praying for the woman she shot to make it.
The cop consoled her by lying: “Yeah, we think she’s going to make it.”
He kept asking one question over and over again: “When she raised her arms and came toward you, did you see anything in her hands?”
Edith kept crying, saying she was scared, how it all happened fast, and how it was a blur, and how she didn’t even remember shooting the gun. He kept asking, urging her to say the magic words that will mean self-defense, justifiable homicide.
The best he could get from Edith was “Maybe a glimpse of something, I’m not sure.”
“You mean a glint, like metal?”
Through the tears, “Maybe something like it. Oh, Lord, please don’t let her die.”
The detective presented the case to the DA. He gave his opinion, nothing more than a voluntary manslaughter, but he could take a no file and be happy.
The DA filed murder. That was their policy. If she wanted to plead to manslaughter, that’s okay. Overfiling helped the stats and forced a plea in most cases. No one wants to face life.
At the preliminary hearing, the judge sensed the detectives doubts, dismissed the murder and held her to answer to only manslaughter. Following the custom, the case was sent to my court, Department 101.
My judge was Bill Drake, who had been a deputy sheriff, then passed the bar and was a practicing criminal lawyer when he was appointed by Judge Arthur Alarcon to replace Irving Kanarek in the Onion Field murder trial over the objections of the client who was not thrilled to have an ex-cop defend him in the most sensational cop killing trial in L.A.’s history.
My calendar DA was Paul Pluté, a mean little bastard who liked to torture anyone taller than him, which meant most of the world. He wore cowboy boots to raise him to eye level of a bull so he could spit in the bull’s eye. Pluté refiled the murder with a smirk.
I filed a 995 motion to get it dismissed, though Drake never dismissed anything that Pluté didn’t want dismissed. I got lucky when Drake was too busy to hear the motion. It got sent to a different judge who, though he didn’t have the balls to dismiss the whole case, at least kicked the 187.
Eventually, we got sent out for trial to the civil courthouse before Judge Norman Dowd, a meek little man who was put out by having to try a criminal case after he had earned his escape from the demeaning work so he could relax in his chambers coercing money settlements.
The trial was not very long. My client testified and she was fine. It sounded to me like a self defense and eleven jurors agreed. A twelfth didn’t, hung it 11-1 for acquittal.
Sometimes back then, judges would dismiss in those cases. Sometimes DA’s laid down. Not this time. Pluté had assigned the case to one of his underlings, a beefy simple-minded soldier named Joe Howard. Joe argued against dismissal, claimed a second trial would produce new evidence of guilt.
The new evidence was mostly in Joe’s mind. Joe had that football lineman mentality — he kept pushing until the game was over. Once he made up his mind to go forward, the case was like a blocking sled.
Joe heard Edith’s testimony that she had raised the gun, and that “it went off.” To him that meant she was claiming, not self-defense, but that the gun accidentally fired. He would disprove that to the jury.
He brought in a trigger-pull expert from the Sheriff’s office across the street in the Hall of Justice. The Deputy Sheriff wandered in with a hassled look on his face.
From behind the man I heard a familiar squeaky voice.
“Hi, Morty.”
“Ricky? What are you doing here?”
Ricky was my cousin, who was trailing close behind the Sheriff’s man.
“I’m interning with the Sheriff,” Ricky said, smiling with pride. “I didn’t know you were the opposition on this case. You’re not going to win this time, you know. We really know our stuff.”
The Deputy Sheriff rolled his eyes and directed Ricky to a seat in the audience.
I whispered to the Deputy. “Who’d you offend in the Department?”
He shook his head. “God knows.”
The Deputy spent the next hour explaining trigger pull to the jury, concluding what I had conceded all along - the gun did not have a hair trigger, just the normal, something like three or four pounds, pressure needed to do the job.
This time I didn’t have to put my client on the stand again because Joe had her tape played and her testimony from the first trial read.
Joe Howard stood to give his summation. He had a big man’s walk, stiff-legged due to old knee injuries, and it made him seem even more intimidating, like Frankenstein.
He manipulated the blackboard toward the jury and scrawled in chalk: THOU SHALL NOT KILL and underlined it with a screech.
He walked to the podium and reviewed the facts of the case that the jury had just listened to.
Then he got to the part about Edith’s version. He lumbered to the blackboard, holding his pen in his paw and jabbed at the words he had written there. His voice boomed:
“Thou shall not kill. But she did kill. She said the gun just went off. But I proved to you beyond any doubt that it couldn’t have gone off by accident." He waved his arms to the heavens and swung them dramatically. "... She aimed the gun ... and she fired the gun — ”
And the pen flew out of his hand and hit one of the jurors smack in the chest.
There was an instant’s gasp.
And then the laughter started. The jurors laughed so hard that some of them covered their faces. I doubled over and looked to the bench.
The judge was Dick Tevrisian (now on the U.S. District Court). Dick’s dark bald head was crimson and he turned his high back chair away so the jury couldn’t see him wiping the tears of laughter from his eyes.
Chet Mitchell, the burly African American bailiff had his head down on his desk, shaking with laughter. I avoided looking at my client. She had been appropriately whimpering softly throughout the trial, and I didn’t want her to catch the giggles from me.
Howard waited for the ruckus to die down. With perfect timing, he gently retrieved his pen from the juror he had “accidentally” assaulted. He then picked up from the exact point he had left off with exactly the same righteous wrath:
“— She fired the gun with deadly accuracy into the chest of the poor woman.”
Another round of laughter followed.
My argument was short. I began saying something like this:
“I have some good news and some bad news. The good news is that I’m not going to hold a pen in my hand when I argue. The bad news is that he gets to argue again.”
This time the jury acquitted.
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