Snowden revisited

I've noted before that my life in court often reminds me of the "Snowden" reference in "Catch-22". This week provided another example.

I did a prelim for another gang shooting case. As in the one I did the week before, there were 3 defendants. Like the others, they too have nicknames, gang monikers the cops call them. I don't know how these kids get these names. Some of them are meant to make them feel tough - like "Diablo" or "Evil". Others are more descriptive - "Gordo" for instance. I once had a client named "Mousy" whose protruding ears made him look as if he was wearing a Mickey Mouse hat.

We'll call these 3 "Antsy" "Bitsy" and "Cutesy" just for this occasion.

Witness 1 gets on the stand. He was friends with the 3 defendants. He testifies that he drove them to a flyer party one night. Walking from the car, he saw a gun in Cutesy's waistband. At the gate, an argument ensued when searches were requested. Cutesy gave the gun to Bitsy who fired shots into the air, then gave the gun to Antsy who fired straighter, killing a young man standing behind the gate. (This was new evidence, since Witness 1 had neglected to mention Cutesy's presence when interviewed by police. He explained this easily: "I forgot".)

Witness 2 was behind the gate. He testified that Cutesy took the gun from his waistband, fired the shots in the air, and then shot his friend. He didn't recognize the other 2 defendants. (This came as a surprise to the DA and detective as well as all the defense lawyers, not to mention Antsy & Cutesy, because Witness 2 had never identified Cutesy before court.)

Witness 3 was also behind the gate. He saw Antsy shoot the victim (which was consistent with his previous statements).

During a recess, I smirked to the DA that her witnesses were not all that reliable, considering that they contradicted each other and their previous statements. She seemed curiously unconcerned. "It's a gang case," she giggled, "It doesn't matter who did the shooting. They're all guilty and they'll all get the same life without parole sentence."

Of course, she was right. The old rules about discrepancies in eyewitness testimony diminishing the strength of a case are out the window in gang cases for two powerful reasons. First, jurors are so prejudiced about gangs (for substantial societal reasons, I admit) and are likely to overlook little problems like lack of reliable evidence. Second, the sentencing scheme has been toughened in gang cases so that issues like who did the shooting make little difference in the length of time to be served.

So, the defense lawyer's skills and knowledge of the law and traditional rules of evidence are futile. Like Yossarian, I can band-aid the nicks and cuts while my client bleeds to death.

Why Jewish Mothers Are Smart: More Study Needed

On my first day at Loyola Law School in L.A., I was sitting in the cafeteria with a group of other first day students. We were chatting about our backgrounds. One guy said he had decided not to attend U.C.L.A. because "there are too many Jews". This was disconcerting to me, a Jew on his first day at a Jesuit run law school, amidst a group of strangers, seemingly a confirmation of my worst nightmare. Somehow, I found the courage to speak up, maybe sensing that I might as well get the pain over with. "What’s wrong with Jews?" I asked.

The guy (who later became an Orange County prosecutor), said "Jews are too smart, I couldn’t compete with them."

I let that ride, opting to accept a stereotype that seemed to be a compliment.

Now I find that he may have been right.

The L.A. Times today reports in a lengthy article that two genetic researchers (Cochran & Harpending) have come up with a highly inflammable theory that Ashkenazi Jews are genetically superior in intelligence to the average population.

They base their theory on findings related to genetic diseases that disproportionately affect Jewish populations, such as Tay-Sachs, Canavan, and Niemann-Pick Type A diseases. These diseases affect the processing by the brain of sphingolipids, the fat molecules that transmit nerve signals. They hypothesize that having one copy of this gene is advantageous, while having two (where both parents have the gene) produces disaster.

Science has a name for this phenomenon: heterozygote advantage. Sickle cell anemia, which is prevalent in African genes is an example. One "bad" copy of the hemoglobin B gene yields a favorable result: protection from malaria, but two deformed genes leads to cells that are too deformed (sickle cells) to carry oxygen, thus are amemic.

A 1970 study of a group of Ashkenazi Jewish children suffering from torsion dystonia, a debilitating muscle disorder revealed that those with the disease had higher I.Q.’s than a control group.

The scientists explain the variance with Darwinian logic. Jews who settled in Europe during the Middle Ages couldn’t and didn’t intermarry, which narrowed their gene pool. Periodic persecution kept the population from growing. Social restrictions forced the population into small communities, in businesses that didn’t require land ownership, but gave opportunities for gaining wealth through trade and finance.

[Here’s where the theory begins to get into trouble.]

According to the Times, they theorize that "the smartest individuals made the most money [not always true], and the wealthiest families had the most surviving children. [I’m not sure that is true; large families were common in poor households to insure a pool of workers.] The genes of the most intelligent Jews spread most, slowly raising the average IQ of the group. Over 40 generations - about 1,000 years - an increase in just .3 points per generation would have added up to a cumulative advantage of 12 points. Some models project a gain of 16 to 20 points."

Again, according to the article, "psychologists and educational researchers have pegged their (Ashkenazi Jews) average IQ at 107.5 to 115. That’s only modestly higher than the overall European average of 100, but the gap is large enough to produce a huge difference in the proportion of geniuses."

"Though Jews make up less than 3% of the U.S. population, they have won more than 25% of the Nobel Prizes awarded to American scientists since 1950, account for 20% of this country’s chief executives and make up 22% of Ivy League students."

Cochran & Harpending (neither Jewish, by the way) have plenty of detractors among colleagues in the scientific community. Some reject the theory as crackpot junk science, another direputable racial theory. Others are intrigued, but demand proof by further study. One said the theory could be tested by comparing the IQ’s of a group with the Tay-Sachs gene with those of their non-carrier siblings.

Well!
Clearly, this kind of theory is dangerous. It smacks of Hitler’s Eugenics, and carries implications that we as a society have rejected. For example, if there are IQ genes than it means that some without them are "inferior". Our science doesn’t permit linking behavior to genetics, or does it? Criminal genes? Addict genes?

Oddly, I ran across another out there hypothesis that seeks to explain the prevalence of "dumb blondes" in our population. Long ago, the scientific team of Fenster & Humperdink sought the answer, in a study probably funded by college fraternities and Hugh Hefner. Significantly, they were unable to definitively prove the correlation of intelligence to blondeness, but to their amazement, did find a match between breast size (unenhanced) and I.Q., a finding which their supporters found equally acceptable.

They too relied on Darwinian theory to explain the phenomenon.

The theory went like this. Early women needed to attract mates to reproduce. The most attractive females were able to do so with little effort. The less attractive females needed to devise clever strategies to make up for lesser physical attributes. Thus, most of the less attractive, less intelligent females died off. Evolution preferred the smarter ugly gals. However, more of the most attractive females survived, whether possessing higher intelligence or not. Ergo, there are more stupid women with large breasts than with small ones.

Now, don’t get angry with me. I’m only the messenger. And I don’t fully subscribe to either theory. I can see the flaws in both (like, for instance, some males find prominent bootie more attractive than large boobs) and what about the Ashenazi Jewish women?

Wall of sound ... and jury signifying something

Post mortem thoughts on Phil Spector re-trial.

Comments by the D.A.’s and defense attorneys are revealing about the system. The DA’s complimented the second jury (that convicted) over the first (that hung 10 to 2 for guilt). In the first trial, the foreman, an engineer who took detailed notes during the trial, stubbornly held out for NG and convinced one other to vote his way. In the DA’s view, he "got hung up on details and missed the larger picture." For the re-trial, the DA wanted "common sense to be just dripping off the panel, as opposed to over-analysis." During the second trial the DA was relieved that the jurors seemed to be bonding, sharing food and making friendships with each other. The bonding led jurors to focus on "the forest and not the trees." As the defense attorney feared, this made it harder for individual jurors to reject the majority.

Whatever the objective merits of the evidence supporting Spector’s guilt, I find these comments troubling.

First, the reason we demand unanimity and of 12 individuals on juries is to avoid a group mentality that pressures the loner to cave in to a majority. Where is Henry Fonda when he is needed?

Second, more innocent people are convicted because jurors ignore "details" in favor of "the big picture" than for any other reason. See the HBO broadcast documentary, "Witch Hunt", for a terrifying example of jurors who get swept up in the tide of community outrage about the big picture.

That incident also illustrates the third reason the post mortem comments are worrisome to me. The DA wanted and got a jury that used common sense rather than over analysis. Reliance on common sense is dangerous when it comes to drawing conclusions in criminal cases. Reasonable doubt can only exist after examining the evidence and the absence of evidence (i.e., analysis of details). Common sense often leads to the wrong answer. Common sense says victims are reliable eyewitnesses, children wouldn’t lie about sex with their parents, police are unbiased.

Whatever I may think of Phil Spector's guilt or his strangeness, it is clear that the D.A., desperate to finally win a celebrity trial and end the ridicule heaped upon them for their past ineptitude, cared little for annoying little details - like contrary evidence.

Someone sent this to me ... great moments in court

Lawyers should never ask a Mississippi grandma a question if they aren't prepared for the answer.

In a trial, a Southern small-town prosecuting attorney called his first witness, a grandmotherly, elderly woman to the stand.

He approached her and asked, 'Mrs. Jones, do you know me?'

She responded, 'Why, yes, I do know you, Mr. Williams. I've known you since you were a boy, and frankly, you've been a big disappointment to me. You lie, you cheat on your wife, and you manipulate people and talk about them behind their backs. You think you're a big shot when you haven't the brains to realize you'll never amount to anything more than a two-bit paper pusher. Yes, I know you.'

The lawyer was stunned.

Not knowing what else to do, he pointed across the room and asked, 'Mrs. Jones, do you know the defense attorney?'

She again replied, 'Why yes, I do. I've known Mr. Bradley since he was a youngster, too. He's lazy, bigoted, and he has a drinking problem. He can't build a normal relationship with anyone, and his law practice is one of the worst in the entire state. Not to mention he cheated on his wife with three different women. One of them was your wife.. Yes, I know him.'

The defense attorney nearly died.

The judge asked both counselors to approach the bench and, in a very quiet voice, said, 'If either of you idiots asks her if she knows me, I'll send you both to the electric chair.'

Suddenly ..

Friday afternoon and it is finally done ... almost.

Four days in court, trying to concentrate on testimony, shuffling reports and notes. The back hurts, the mind is numb, but it will be done soon. The judge is finishing his long expected rulings, denying all the defense motions, ordering the case to go on to the next stage.

Suddenly, one of the defendants springs from his chair to which he is handcuffed trying to cross the edge of the counsel table, cursing and lunging toward the investigating officer who sits next to the D.A.

The bailiff pounces on the guy and presses his body to the carpet in the well between the judge’s bench and the table in front of me. In a few seconds, we all back away from the table, bailiffs appear from nowhere, five of them then four or five more.

The other two defendants, including my client, who’s been sitting quietly, handcuffed to his own chair next to me, are held in place by three or four bailiffs.

The reasons for the outburst are pretty clear. When he was arrested after shooting someone, the defendant had eventually fingered his homie, one of the other defendants but only after the detective had promised him that he would not disclose the fact that he had "snitched" in his report. The cop had kept his word. No names were in the report. But when it came to the court hearing, he had to relate the names. That apparently offended the defendant’s sense of ethics. It is okay to finger your homies, as long as you’re not labeled a rat.

I was glad his rage wasn’t directed toward his his lawyer, who is a friend of mine. Though rare, I know of at least three incidents where friends have been attacked by their own clients in court. One had his nose slashed with a razor blade. For a while, it seemed to be a trend to attack your public defender in order to try to get a continuance of your case or to change lawyers.

We used to call it a "Rucker motion", named after Ed Rucker who was the first recipient of a client’s right cross.

My Days In Court

I spent the last two days in and around courtrooms ... waiting. That’s mostly what you do in court. It gives me time to think about stuff. Here’s some of it.

Yesterday I did a pro bono day in Van Nuys, represented a girl (born in 1989) charged with the felony of possessing an access card, which she says belonged to her stepfather. Her mother supports her, says she’s doing well in rehab, no longer seeing her meth selling boyfriend. Another girl (born 1987) is charged with possession of heroin, which she says she was holding for her boyfriend. She wants drug rehab.

... What would it be like to be a public defender in Iran?

Imagine bargaining with the prosecutor:
"Fifty lashes? It’s a first offense. How about 20 lashes."
"Okay, 20 lashes ... and her left hand."

In our country, that could never happen...

Uh oh... What’s this in the L.A. Times?
An 18 year old boy with a 47 I.Q. sexually assaulted a 7 year old boy. The appointed defense attorney pled his client and sought probation. The jury sentenced him to 100 years in prison.

Oh, wait, that was not in this country ... it was in Texas.

Today, I was supposed to start a three day preliminary hearing in San Fernando.

The case stems from a turf dispute between gang members and residents of a drug rehab house in the neighborhood. The gang members had received complaints from their drug buyers that they had been robbed of the drugs by the druggies loitering around their rehab center.

After some negotiations between the parties, somebody got shot five times and ended up in a wheelchair.

I represent one of the three gang members charged ... the innocent one.

We had been ordered to appear in court this morning at 9 a.m. ready to go. Yesterday afternoon, I was informed that one of the lawyers wouldn’t be there until late in the morning or 1:30. So, there was no need for me to rush this morning. At 8:30, I called the court clerk. He told me I’d better get there at nine, because the judge was on the warpath.

I rushed, got there at 9. By 11 a.m, the third lawyer still hadn’t arrived. But the D.A. wasn’t ready either. Her "victim" failed to show up. She didn’t know where he was, hoped she could get him there tomorrow.

Carping Clowns of Conservatism

Spiro Agnew once called critics of the Nixon Administration the "nattering nabobs of negativism" and "pusillanimous purveyors of pessimism." Agnew wasn’t smart enough to have made up those polysyllabic words all by himself, but I was reminded of them when I watch the nabobs on cable t.v. nattering negatives about Obama’s struggles to clean up the mess made by the previous lessees of his residence.

How can anyone watch his press conference today in London without comparing his virtuoso performance with any by the idiot he replaced. This, of course, is a cheap shot, because W. did not set a high standard for competence, fluency, charm, intelligence, insight, or understanding of economics or any other subject taught beyond middle school. In one instance, Obama referred to "Bretton Woods." I’d bet any amount that W. thinks that might be Tiger’s uncle or the place where Tigger lived.

The media & blogs are fixated on "the first 100 days" - as if eight years of destruction and neglect of virtually every duty a government should have performed could and must be healed in that time. I challenge any historian to find a more productive period for a president than what we have seen so far (@ day 80 by my count).

In their effort to maintain controversy, the cable talking heads trot out the usual suspects, introduced as "consultants", who parrot the talking points they’ve been texted by their think tanks. Allowing pinheads like Pat Buchanan, or even Dick Cheney, to be heard at this time is stretching the Fifth Amendment to absurd limits. As one who is all too familiar with the sound of weak arguments, I cringe at the burden such spinners have to carry. In court, the doctrine of "clean hands" precludes hearing of complaints from these sources.

Congressional critics from the Right have the hardest time carping. Like the fabled defendant who killed his parents and asked for mercy as an orphan, these clowns can only whine about "deficits" and "socialism" and "dictatorship" which gets them laugh time on The Daily Show or David Gregory’s (MSNBC)"hypocrisy watch".

As with any rational president, Obama has his critics from within his own party. The Left is dubious about sending more troops to Afghanistan, more Wall Street bailouts while seeming to leave auto union workers to hang in the wind, suspicions about continuing W’s tactics against "terror", and delaying repeal of "don’t ask, don’t tell".

While I admit some concern about these issues, they don’t come near to outweighing the achievements so far. I will remain, for the time being, an Overtly Optimistic Observer Of Obama Operatics.