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Saturday, December 11, 2010

Luddite Department: The Eve of Destruction - Facebook and Google attack

Facebook seems to be the latest target of the forces of reaction against technology. Every advancement produces a backlash induced by fear of radical change.

The Luddites were a movement begun @ 1812 against the advent of mechanical looms, which were seen as a disastrous example of the Industrial Revolution’s destruction of society’s stability. The mechanical loom, an invention which used a precursor of computer technology, eliminated the need for skilled textile workers. Cheaper unskilled labor replaced the more expensive workers.

In the 20th and 21st centuries, experts consistently predict doom as each new invention emerged. Civilization was threatened by the telephone, automobile, radio, motion pictures, television, the computer, cell phones, the internet.

On one hand, it is possible that the Luddites were right all along. After all, many economists predict that high unemployment is likely to be chronic, the old high paying skilled labor jobs permanently disappeared, replaced if at all by low paying service industry jobs.

And scanning the L.A. Times today, I ran across no less than four items that raise the “uh-oh” about Facebook, Google, and the internet:

A man who worked as a chef in Florida is accused of cyber-stalking and (I love this term) “attempted video voyeurism”. Wanting to see pix of naked girls and apparently too cheap to pay for a porn site, this doofus (allegedly) used various fake female names, claiming to be an alum of sororities of several southern universities to contact co-eds and demand that they send naked photos or else he (pretending to be she) would do nasty things to her. Using knowledge of intimate facts acquired through Facebook, the culprit convinced some girls that compliance was necessary.

Item #2. Page A22: NO FACEBOOK: IT’S A LOAD OFF.
Harrisburg (Pa.) University conducted an experiment. Students gave up social networking, including Facebook and Twitter, for one week. Survey said: 25% reported better concentration in class, and that lectures and seminars were “more interesting”. 33% claimed that the hiatus from the impulse toward networking reduced their stress level.

The attorney general of Connecticut has subpoenaed Google’s records. Google has apparently admitted that it “inadvertently” “collected and stored data from unsecured Wi-Fi networks taken by cars that take photos for its Street View mapping service”. The AG demands the “consumer data” that was collected by this mistake for which Google has apologized.

1.5 million users pay to play the Pot Farm game online. Facebook reportedly “made Pot Farm pull a hookah pipe from the game.”

Luddites beware.

Sunday, December 05, 2010

A Dog's Life

They say that one year of a dog’s life is equal to seven of a human’s. But that is misleading. After one year, the dog is an adult, far superior to the seven year old human. On the far end of the life, the analogy is also inapposite. A dog of ten years is almost certainly better off than a human of seventy.

The reason for this difference demands reference to Darwinian principles. To survive in the nomadic pack, dogs could not afford the lengthy weaning period of apes and humans. Nor could they survive the lengthy decline of health and vigor we associate with aging. If life could be depicted by a line chart, a human’s life would be more like a parabola, while a dog’s would be a long straight line preceded by a steep rise and ending with a precipitous drop.

Of course, now that we have reduced dogs to the status of pets, replacing the cruel truths of the pack with the pampering attentions of loco parentis, old dogs suffer age related ailments and are just as miserable as old people.

Well, almost as miserable.

We don’t know if dogs sense their impending death. We humans do and as we get older it becomes undeniable, rushing inexorably closer each moment. But for most of us death doesn’t come suddenly. It follows a long slow painful and increasingly miserable decline

My son is now thirty and in his recent visit I noticed that he has many grey hairs. Thankfully, his generation’s life expectancy will be far longer than mine. Medical advances will probably also soften the decline of his life’s parabola.

But these innovations can only delay, not eliminate the sadness that comes with awareness that you are on the downside of the parabola, life’s roller coaster ride. When I was a kid in Coney Island, I always knew when the ride was ending, slowing down after the final thrilling turn. As the car stopped, the bar unlocked and I wanted to go round again.

Sunday, November 28, 2010

Two For The Road ... Sunday

Two apparently unrelated news stories about the death penalty should raise new doubts about its viability. But probably won’t.

The LA Times reminded us that one of the reasons for the lengthy delays between trial and execution is the lack of available and competent appellate lawyers willing to commit to pressure packed habeas corpus representation.

Paranoid prosecutors whine about a conspiracy of defense lawyers who raise multiple issues merely to cause delays. Noting that other states don’t seem to have problems finding defense lawyers, outgoing California Supreme Court Chief Justice Ronald George explains that California’s standards of legal ethics and competence are just a bit higher than those of Texas, Florida and the several other states that rush to executions.

The fact that DNA as well as otter revelations (such as the defects in arson expertise) have proven (yes proven beyond any doubt) that many (not some, many) innocent people have been executed because of the insistence on speedy results rather than correct justice.

The New York Times previews a coming article in the New York Review of Books written by retired US Supreme Court justice John Paul Stevens, who expresses his regret about his votes to uphold the death penalty and his revised opinion that the punishment is unconstitutional. He had voted to uphold it because he thought procedures could be devised which would insure its fair application. He no longer believes that. He cites later opinions by the shifting majorities on The Court that undermined he faith in the law’s ability to devise fair procedures.

From the prosecutoria decision to seek death to jury selection to victim impact testimony to sentencing and appellate review, he concludes that the entire system of capital justice to be fatally flawed. 

Justice Stevens was interviewed for CBS's "60 Minutes" to be aired tonight (Sunday, November 28, 2010).

If there is to be an educated and informed electorate to decide things like capital punishment, these are the facts that need to be exposed.

Wednesday, November 24, 2010

Free Speech And The Internet

The joke goes: one of the cool things about Alzheimer's is that you learn something new every day. The same is true of old people and technology. My friend has recently become alarmed about a new - to him - phenomenon: the internet. Now retired from a life competing in the bloody killing fields of high school football, Valley golf courses and various courthouses, he had discovered surfing of the browsing sort.

Inevitably, he came upon a website which disseminated Tea Party treats with arsenic centers. Reviving his vigor for combat, he used his legal skills to argue against their vitriol, lacing his inconvenient but legally correct factual revelations with his own brand of counter vitriol. He posted scathing comments responding to know-nothing blog posts and other comments without mercy to the feeble-minded.

As a result, he found that eventually, his comments were deleted. He complained to me about this and I tried to explain the concept of "moderating" comments. "Where's the First Amendment?" my friend cried.  "This internet thing is outrageous. This isn't free speech."  To no avail, I tried some logic of my own with a legalistic Socratic analogy: "Don't newspapers censor letters to the editor that criticize their articles?" He was having none of it. "This is different. The internet is full of lies and no one can challenge them."

He decided to do more legal research. Having learned the magic word: "Google", he now spent his life in research. So he sent me proof. An article in "The Atlantic" online edition by Garrett Epps, a legal journalist and law prof at the University of Baltimore.

Epps reported on the Supreme Court oral argument in the so-called funeral-picketing case, in which a church picketed and on their website ridiculed the funeral of an American soldier, in protest over some perceived lack of religious education his parents had provided, involving gays in the military or some stupid notion. The parents were offended by the action and sued the church members for "intentional infliction of emotional distress." One problem for the plaintiffs was an element of such torts: that the "victim" has to be confronted by the action. Does posting on the internet meet this test. The statute and older case law never anticipated this issue - is the internet different from Hyde Park corner, or radio? If so, is the difference legally significant.  And, hey, what about the First Amendment? The traditional refuge of scoundrels like Neo-Nazis, Daniel Ellsburg, and others. 

So, here's what I wrote back to my friend.

Thanks for forwarding Garrett Epps’ opinion piece in The Atlantic. It is an interesting if superficial analysis of some of the issues presented to the law by internet speech. Although he makes a few cogent general points, I disagree with his tone, which is a bit hysterical and with his conclusions, which are speculative and argumentative with insufficient factual support.

The author’s citation of the Prop 8 case is inapposite. There, the court censored broadcast of the gay marriage trial proceedings on Utube. But that was well within precedent. The rationale was to prevent intimidation of potential witnesses. This is traditional balancing: fair trial vs. free press.

The reference to Breyer’s concerns about the potential need for new rules in the funeral picketing case is weak support for the case for “radical change” (i.e., reduction) of First Amendment protections. Breyer himself recognized that televising was not significantly distinguishable (in this context) from the internet publication in this context:

“So now we have two questions. One is, under what circumstances can a group of people broadcast on television something about a private individual that's very obnoxious? . . . And the second is, to what extent can they put that on the Internet, where the victim is likely to see it? Either on television or by looking it up on the Internet. Now, those are the two questions that I'm very bothered about. I don't know what the rules ought to be there.”

Breyer’s voiced worry about the Koran burning video disseminated to the world on the internet is also an issue that can be treated within the traditional context of First Amendment analysis. Breyer himself acknowledges this with his reference to Holmes’ fire in the theatre example, which has been a hypothetical bright line in the law for more than 100 years.

That doesn’t mean the internet doesn’t pose new and difficult issues for consideration by the law. It certainly does. As a source of unauthorized, unedited and unverified information, it is a dangerous weapon in the hands of advocates of any persuasion, left, right, lunatic.

But civilization has faced similar challenges many times. With the invention of the printing press the law had to alter its notions about slander, recognizing the greater danger of the written word, upping the penalties for libel. When technology permitted cheap publication, allowing access by all classes to “The Press”, its power was seen as frightening, even potentially disastrous by the elite educated leaders who previously held a monopoly on ideas and arguments. Eventually, the process became so cheap that anyone with a mimeograph machine in the basement could foment revolution, on paper at least.

Concerned “journalists” decry the lack of editorial control over content of blogs and other sites. This is true. It is also, as the author writes, “instantaneous,” “ubiquitous,” and “persistent.”

These issues create problems, but are they unique in the history of the law? Do they require reduction of our First Amendment protections? I am still a “free market” conservative when it comes to the “marketplace of ideas.”

I believe the time has long since past when people assumed that whatever was printed must be true. Of course there are some who will, either out of ignorance, or wishful thinking. The internet has not (yet) altered human nature. Humans often choose to believe and to act — based on faith rather than reasoning. Hatred or fear of Obama leads to “birthers” and this rumor is of the kind that would have thrived at any time in our history.

For example, Lincoln was widely reported to be and believed by huge portions of the public, north and south, to be part “Negro” - there was no Gallup poll back then but penny newspapers gleefully spread the rumors.

Frets about the accuracy of information on the internet seem to me to be not any different than what appeared in biased American newspapers for 200 years and more. Pro Hamilton / Federalist publications printed rumors about Jefferson’s love life. Jefferson even financed print reports about Hamilton’s scandals. The lies published about Lincoln keep historians employed. Fox News need not be on the internet to carry enormous influence in its biased reporting.

I am dubious about the ability of the nine members of the Supreme Court, especially those currently sitting, to define universal rules for internet censorship that would be effective and unharmful. Their “conservatism” may lead them to favor the “individual” over the “police power” of the state, whereas the “liberals” as exemplified by Breyer, are even more dangerous to individual liberties because they tend to look to government for rational regulation of behavior. But I don’t trust either side to be intellectually honest or intelligent in deciding such issues.

Having studied the history of the 4th Amendment, you know as well as I that it is always in times of crises and in extreme cases that our panic results in diminishing our rights. Once forfeited, these rights are difficult to regain. 

[NOTE: My friend was able to gain a measure of revenge against the nutso webbies. One blogger or commenter suggested to his readers that our president was a usurper who deserved the fate or all such usurpers.  My friend called the Secret Service, asking whether athreat against the life of the president was something they might be interested in knowing about. He received a cordial response and felt that he had succeeded in striking a blow against the blowhards in the war in cyberspace.]

Who says all wars are fought by the young.  

Sunday, November 14, 2010

The Shame and The Horror

The shame of the Holocaust and its consequences continue to reverberate, more than a half century later. The L.A. Times reports that the French state railroad company, SNCF, which wants to bid on a high speed rail contract in Florida, has finally conceded its complicity in the transportation and “deportation” of more than 70,000 French Jews to their doom.

Collaboration has always been a sore subject with the French people who have a hard time swallowing the truth of their behavior during the Nazi occupation after June, 1940.

But you don’t need to visit Paris to find shameful actions and inactions regarding Nazis. The New York Times exposes a US Justice Department report of American use of Nazi scientists after the war.

Fifty years after the events, the government continues to conceal embarrassing details about this episode. In response to the Cold War, some Nazis were given safe haven here, used by U.S. intelligence agencies including the C.I.A., to follow East German Nazis who were aiding the Soviets. One was Otto Von Bolschwing, an assistant to Adolf Eichman. He died peacefully in the U.S. in 1981 before the O.S.I. could deport him.

Another Nazi that the U.S. government valued was Arthur Rudolph, whose story has been well documented and dramatized in other sources. The scientist was credited by NASA and the military with work on the Saturn 5 rocket. He had a leading role during the war in managing the slave labor used to build and maintain the German V1 and V2 rocket program. More slave laborers, mostly Jews, died in the launching of the rockets than were killed in England by the explosions caused by the rockets.

"Operation Paperclip", the program to bring these scientists, including the famous Werner Von Braun, to the U.S. is well known. The recently disclosed documents show details of how the C.I.A. conducted the cover-up to conceal the extent of their complicity in war crimes.

Tuesday, November 02, 2010

Baseball As Metaphor Department

San Francisco over Texas equals a minor victory in what is likely to be a day of bloodbath for blue state vs red state symbolism.

Whatever, the win by the Giants is also payback for the Dodgers and their miserable fans this year and for the past 56 years.

As one of the few people still alive who actually remembers watching the 1954 World Series, the last time any Giants team won, it was gratifying to see this series - which, judging by the miniscule television ratings, I am also one of the few who watched.

Thursday, October 28, 2010

A win is a win

Went to court this week on one of the most difficult cases I've ever had. It's taken nine years to get to trial, partly due to my own incompetence in the field, partly due to the Byzantine complexities of the forms and code sections in this area of the law.

Came to court that morning not knowing if I'd finally managed to successfully maneuver through the paper maze into the clear. Met my opponent in the corridor outside of the court. Hadn't seen her for a long time, but she seemed to be bearing up well under the stress. We were friendly enough - had come to an agreement about the case long ago - were both anxious to get it settled and done with.

We waited in line to check in with the clerk, who took most of the drama out of the day by saying that this time he and the judge were satisfied with our forms. Whether that meant the number of them, the content or the appearance, I was not about to ask. One of the first lessons I learned in court was when you are going to win the point, stop swinging. Since I didn't expect to ever have another case in this particular area of the law there was no further need to educate myself for the future, as I always have done.

Amazing luck continued when we were told that we were first on what was a three page calender of trials and other matters. When the judge finally emerged of course, he took another case first, an off calendar matter that seemed to relate to a controversy about a trial that was to start the next day. Understandable.

When called forward, we took our places and were sworn in, questioned, and in a few more minutes, were told that I had won.  My opponent was just as happy as I was. She laughed when I whispered, "Mazel Tov" and asked whether it was customary to put the glass together again.

Outside we wished each other well, exchanged best wishes to our families. It is unlikely that we will ever oppose each other again. She asked me if I was going to begin another such case. I was emphatic in denial. She claimed a similar disinterest in repeating the error.

It was a melancholy feeling to finish this case, but a win is a win.

Tuesday, October 05, 2010

The prosecution lies

If you are one of the many (possibly majority) who believe that the ends of punishment of bad guys justifies any means and that ignoring technicalities like rules of evidence is okay when it comes to convicting criminals (“hey, they didn’t give due process to their victims, did they?”), then ... stop reading... S’long.
Anybody left?

The public’s negative image of lawyers in the criminal justice system, “informed by” (I love that phrase - it so often means “misinformed by”) pop culture references, has focused on defense lawyers.

Our profession always scores below used car sales on the integrity scale. Some deserve the shame, although I have found that lack of competence, effort, and concern for the client are habits that are far more pervasive than cheating to win-at-all-costs behavior.

BUT ... Today’s L.A. Times contains an article that is not news to many of us who have labored in the justice system for any length of time. A study conducted at Santa Clara University School of Law concluded that misconduct by prosecutors in California was widespread — tolerated with a shrug by the courts, their peers and superiors, and mostly by the public.

The article contains a few quotes from prosecutors in their own defense. One, who had been criticised in several appellate cases, shrugged that the court didn’t find that his misconduct resulted in an erroneous conviction.

I thought that was funny, like the doctor saying the patient would have died anyway, so what’s the rumpus! Chick Hearn’s dictum: “No harm, no foul.”

Yes, it is true that in the vast majority of cases, appellate courts find any misconduct by prosecutor’s to be “harmless error,” i.e., not enough to reverse a conviction because the appellate judges have reviewed the trial evidence and decided that the defendant was guilty anyway.

This result is not completely surprising, considering that almost all appellate judges are recruited from the ranks of prosecutor offices. Many consider their duties as judges simply to be an extension of their careers as prosecutors — they are still “administering” the law.

Thus, their view of evidence and their conclusions as to what a “reasonable” jury would have done if the prosecutor hadn’t concealed, misled, distorted, lied, and / or knowingly violated substantive rules of law is drastically skewed.

Even when prosecutors are caught committing serious misconduct they are rarely disciplined by their superiors. The culture — like that of the police — supports the “tough on criminal” mentality. Part of the reason for this state of mind lies in the perception that the system is biased in favor of the defense.

The culture bridles at traditions like “presumption of innocence”, “proof beyond a reasonable doubt”, and unanimous verdicts, which are perceived to place too high a burden on overworked and underpaid prosecutors.

The public’s perception in this case is based on realities that haven’t existed since telephones had rotary dials. Judges haven’t been “too liberal” in California since the 1960's.

A succession of conservative governors and draconian initiatives which constitute wish lists for prosecutors have tilted the scales of justice so far in favor of the prosecution that the most ambitious law students interested in criminal law careers almost invariably seek jobs as prosecutors rather than defense lawyers.

Public defender offices are now housed with shell shocked inmates, terrified of receiving yet another losing case.

Defending is no tea party. Sorry.

Sunday, September 26, 2010

Eyewitness identification

Tonight's 60 minutes repeats a story about how DNA finally proved a woman's eyewitnesss testimony identifying a man as her rapist wrong ... after he served 11 years in prison for the crime he did not commit ... and after the actual rapist had raped other women because she denied that he was the one who raped her rather than the person she misidentified ... and how the wrongfully convicted black man and the white woman whose testimony condemned him have become friends ... after he forgave her ... for which she was grateful for his expression of mercy.

Friday, September 17, 2010

When will we ever learn?

Two news stories reported in today’s L.A. Times should be linked to appreciate their full import.

First, well hidden on page A12, is a report of
“2 Innocent men freed in ‘79 rape and killing.” In yet another revelation triggered by DNA testing spurred by The Innocence Project, two men who served 30 years for crimes they did not commit were exonerated by a Mississippi court.

Since many of our Draconian laws have responded to anecdotal evidence, you have to wonder what it will take to change the public’s attitude about rape. The true incident of "The Scottsboro Boys“ and the dramatized fame of "To Kill A Mockingbird” wasn’t enough to raise skeptical eyebrows when black men are accused of rape, especially (but not exclusively) in the south.

I’ve reported several of these cases before:
A death row inmate cleared.
A personal acquaintance was freed after serving years in prison.
Alaska justice.
Post Mortem.

second report involves the ongoing saga of Bruce Lisker, whose ironic connection to my own life I have previously observed. Lisker was released after a lengthy hearing by a federal judge who determined that he was wrongly convicted of the murder of his adopted mother in 1983. She ruled that his lawyer failed to adequately investigate evidence that pointed to a different suspect and noted that the police detective apparently committed misconduct in the investigation. Lisker was freed after 26 years in prison, while the prosecution decided whether to dismiss the case.

Now, the L.A. District Attorney’s office, which is notorious for its refusal to admit its own errors, is urging the Attorney General to seek his re-incarceration, by appealing to the 9th Circuit. The legal grounds for the appeal would be the hyper technical one that Lisker missed a deadline in one of his habeas corpus writs over the many years of his efforts to gain a retrial.

The law relating to habeas corpus writs, the traditional last resort of prisoners claiming injustice, has been stiffened to severely restrict access to the courts. The purpose was to assure "finality" in the system and to bring an end to multiple appeals and writs, in other words, to encourage
speedier justice.

The nagging question that has been argued ever since is what about the inmate who isn’t just complaining that his or her conviction was wrongful because a perceived “technicality” i.e., a violation of some ephemeral constitutional right, but is strongly asserting his or her actual innocence, willing to accept the burden of proving it, as by DNA evidence or other convincing proof?

The 9th Circuit (claimed by conservatives to be the most liberal appellate court) recently denied release of a prisoner whose child molesting conviction was overturned by a district court, ruling that he was in fact innocent, on the ground that his habeas writ was “untimely” because he had failed to meet the stringent deadlines for filing his papers.

Will the California Attorney General try to apply that ruling to Lisker’s case? The A.G. has decided to delay deciding, to study the issues more fully. Lisker’s lawyer suspects the decision might have something to do with Attorney General Jerry Brown’s run for governor (and L.A. D.A. Steve Cooley’s run for the A.G. job).

That crime is a political football is no shock. In our democracy, politicians gain no benefit by asserting the rights of convicted criminals. This is particularly true this year of the tea party, the neo neo John Birch Society.

Thursday, August 19, 2010

The News That (Gives) Fits ...


North Carolina: "State crime lab analysts omitted, overstated or falsely reported blood evidence in dozens of cases, including three that ended in executions, a government ordered audit found.

"Agents of the State Bureau of Investigation repeatedly aided prosecutors in obtaining convictions from 1987 to 2003, mostly by misrepresenting blood evidence and withholding notes from defense counsel....

"State Attorney General ... ordered the review after the exoneration of a man imprisoned for 17 years for a murder he didn't commit."


WASHINGTON (AP)"President Barack Obama is a Christian who prays daily, a White House official said Thursday, trying to tamp down growing doubts about the president's religion. A new poll showed that nearly one in five people, or 18 percent, believe Obama is Muslim. That was up from 11 percent who said so in March 2009. The survey also showed that just 34 percent said Obama is Christian, down from 48 percent who said so last year. The largest share of people, 43 percent, said they don't know his religion."


ORLANDO (FLORIDA) SENTINEL: "The Council on American-Islamic Relations (CAIR) is calling on American Muslims to respond to a Florida church’s planned “International Burn a Koran Day” by hosting educational “Share the Quran” Ramadan fast-breaking dinners (iftars) at which copies of Islam’s holy text will be distributed to neighbors, public and law enforcement officials and journalists. (The month-long Islamic fast of Ramadan will begin in August.)

"Representatives of the Dove World Outreach Center in Gainesville say they will burn a Quran outside the church on September 11 and are encouraging others to follow their example. This is the same controversial church that has been in the news for claiming that “Islam is of the devil” and for protesting recently outside a local mosque."


Tuesday, August 17, 2010

... And You're Out (Finally)

The L.A. Times reported today that a man who was sentenced to life in prison for entering a church to steal food as a "third strike" should be released from prison after a mere eight years. Even D.A. (and California attorney general candidate) Steve Cooley apparently claimed some credit for this, having cited it as one of the reasons for his policy not to seek a third strike conviction where the underlying crime is so minor.

His policy, by the way, results in another injustice, almost as egregious as the disproportionate life sentence of the three strikes law. By "striking a strike" on condition that the defendant plead guilty, the D. A. assures denial of a fair trial and a still outrageous sentence -- double the sentence that would have been given without a strike and a requirement to serve 85% (rather than 50%) of the stated prison sentence. Thus, a defendent committing a petty non-violent crime might still serve many years in prison.

The three strikes law, like many changes in criminal procedures over the past twenty years, is the product of the Initiative Process, based on propositions written as a wish list of District Attorney associations allied with so-called victims rights groups. Most of these laws take discretion away from judges and juries and give it to prosecutors. This increase in power has resulted in a corrupt, complacent, political, dictatorial prosecutor-driven justice system.

The cost to the society of these mistakes will be incalculable, but you can start by counting all the wasted money spent to incarcerate non-violent prisoners for many years.

Monday, July 26, 2010

Happy Birthday, Sis



my sister is 65???????????????

Happy Birthday, Risë Marlene.

Love, mort.

Sunday, July 25, 2010

Sunday News Roundup

After California Supreme Court Chief Justice Ron George announced his retirement, Governor Schwarzenegger nominated Appellate Court Justice Tani Cantil-Sakauye to replace him. She would be the first Asian (Filippino) woman in that post. What else we know about her doesn’t yield great optimism that she will improve the reputation of the court, which has lost most of its luster since the great days of CJ Roger Traynor in the 1960's and Don Wright in the 1970's.

After the massacre of Rose Bird and three other justices in the 1980's, the court swung to the Right and has stayed there under a succession of conservative Republican governors and a spineless nominal Democrat, Gray Davis. Justice Cantil-Sakauye, married to a retiring Sacramento Police lieutenant, was appointed to the bench and elevated by all the Republican governors since 1990.

Meanwhile the NY Times produced a lengthy analysis of the US Supreme Court and reached the startling conclusion that since CJ Roberts, it has become more conservative. They included a timeline that tried to fit appointees into slots between left and right ideologies, concluding that five of the ten most conservative justices on the court since 1937 are serving today: Thomas, Alito, Scalia, Roberts, Kennedy. How conservative is this group? All are rated further to the right than Justice McReynolds who refused to speak or have pictures taken with Jewish Justice Brandeis, and voted to upset all of FDR’s New Deal programs.

The NY Times Book Review includes interesting reviews of books about the Dreyfuss Affair, English novelists W. Somerset Maugham and E. M. Forster, and diplomat and political theorist George F. Kennan.

Last week, the sports pages were preoccupied with an issue that occasionally but persistently rears its ugly head and scares the hell out of the big big business of big time college sports.
A few stories coincidentally brought the oily mess to the surface. USC was drilled by the NCAA for violations relating to illegal payments given to sports stars in their football (Reggie Bush), basketball (O.J. Mayo) and womens’ tennis (?) programs. The second incident related to a number of investigations being conducted about similar violations in several other universities in the SEC. Some coaches, who were blamed for failing to enforce the rules blamed the agents, who they likened to pimps soliciting and corrupting their players (who I guess would be the whores?).

The background of this latest controversy is this. First, college sports business is big business. Billions are earned by the universities from television contracts, merchandising, etc, which the CEO’s of these institutions of higher learning claim are needed to support all the other sports programs that suck money from the schools (like Title Nine womens sports programs) which would sink otherwise.

Second, the competition for first rate “student-athletes” is cutthroat, leading to recruiting of players who not only wouldn’t otherwise qualify as “students” but would really prefer to go straight to the professional level.

Toward that end, ghetto playgrounds and small town fields all aroung this country — and the world — are scoured for prospects, whether they can read or write. Given scholarships and deported to university campuses, they are then expected to live like slaves and monks, work full time on their skills and fitness, while the archaic rules of the NCAA also demand they maintain C averages in academic classes.

If they are injured or found ineligible for academic or ethical failings, they may lose their scholarships and be forced to drop out of the university. After their playing days, those who fail in the pros (the average span of a career in the NFL or NBA is less than five years) usually find themselves back where they started: without marketable skills or the benefits of a college education.

There is a solution. It is radical, forces us to discard some antiquated ideas about “amateurism.” But we were able to overcome the naive prejudice when it came to professionalism in the Olympics. So, it is not impossible. Here’s my simple plan: pay recruits to play their sport for the university.

The pay or stipend can’t compete with what they might get in the pros, but the compensation must be sweetened by giving what the pros cannot give: an education. Not while they are employed in their teams, but after their college careers are over. (Except all student athletes should be offered classes in money management, communication, relationship counseling.
Promise every recruit free tuition for as many semesters as it takes to graduate, including prerequisite tutoring to bring the student up to grade level necessary to equal other matriculating students.

Registered and regulated sports agents should be permitted to recruit students just as other businesses recruit undergrad scientists and engineers, etc. They can sign the student and supplement the stipends.

Those few who become independently and permanently wealthy as pros should be expected to return a portion of their fortune to the university in return for their post career schooling.

Friday, July 02, 2010

The Radical Lawyer

I just saw a remarkable documentary. PBS broadcast a filmed biography of so-called “radical lawyer” William Kunstler, titled “Disturbing The Universe.” The title is appropriately grandiose considering Kunstler’s outsized ego and his notoriety in his time, even if it barely overstates his impact on the cosmos.

Kunstler, I am certain, is a name completely unknown to callow lawyers and youthful humans born too late to hear the words like Attica, Yuppies, Wounded Knee, Black Panthers and Weather Underground in newspapers rather than textbooks. Unlike most current celebrities, his fame was earned for actions that mattered. He was the most famous criminal defense lawyer since Clarence Darrow, and for many of the same reasons.

In these days, the press covers the right wing Tea Party Movement as if it is a phenomenon unique to American experience and as if it parallels the Civil War as a revolt against the government. The anti-establishment movements of the 50's, 60's and 70's make the Tea Party seem like ... a tea party.

The documentary reminded me of Kunstler’s involvement in these causes and my ambivalent attitude toward him and what he meant to the legal profession, which I was then entering. My generation came to the public defender’s office with notions of becoming lawyers like Darrow and Kunstler, who could make statements, fight injustice, argue for causes. Instead, we were quickly disabused of that ambition. We were trained to defend individuals, not issues. We fought “The Establishment” — labeled in the title of the times: “The System”. But we fought it from within. We envied Kunstler and others of his persuasion for the righteousness of their arguments. But we also derided them for the ineffectiveness of their tactics of confrontation. Kunstler’s defiance of the system often hurt his clients while it aided his “causes”.

Kunstler’s general philosophy was that the law should be violated when it interfered with the greater goal: social justice. There was obvious truth in this as reflected by tactics of non-violence, civil disobedience, and peaceful resistance. Kunstler and his allies, however, carried it to another level, as the radicalized protests escalated. He rationalized. supported and justified radical violent solutions to social injustice. He went beyond advocacy as a professional defender of the “unpopular client”, he was an activist, a strategist, an abettor of radical acts.

During his defense in show trials, his blatant expressions of disrespect for the legal system, his pandering to the press, his distasteful craving for attention, his self-indulgent ego massaging he enjoyed often diminished his reputation as an effective defender.

The documentary depicts William Kunstler as an example prototype of his era. During the 1950's he had been comfortably entrenched as a mildly liberal minded New York Jewish lawyer, a World War II veteran, practicing civil law and living in an upscale suburb with wife and children.

His first test came when he joined the ACLU and was asked to advise civil rights activists in the south. His experiences there raised his consciousness and of course excited him with the prospect of making a real difference.

Once his reputation was established in this movement, it was easy for him to dive into the deeper waters of increasingly “radical” campaigns. He was in his 50's in the 1960's and the youthful protesters of war, racism, societal injustice needed a middle-aged lawyer who could be spokesman, strategist, counsel, and ultimately, co-participant.

Eventually, many of Kunstler’s generation experienced a deeper, more radical personal transformation — a mid-life crisis of conscience and search for spiritual meaning, a striving for youthful relevance. They divorced, discarded their ties and station wagons, tried drugs, grew long hair and sideburns, countered the culture with a vengeance.

Kunstler was eager to do all of it. He represented Father Berrigan for draft card burning, the Chicago Democratic Convention protesters in the era’s most notorious political trial known as “The Chicago 7". The press vilified him and the Left glorified him. He was certifiably famous. Kunstler was sentenced for contempt when he accused the judge (the notorious symbol of establishment injustice, Julius Hoffman) of fascism when he ordered pro per defendant Black Panther Bobby Seale to be bound and gagged because of offensive outbursts in court.

The high point of Kunstler’s fame combined with effective righteousness came when he defended Dennis Banks and Russell Means, leaders of AIM (American Indian Movement) who had occupied federal land at Wounded Knee to protest American mistreatment of native Americans. He not only won acquittal, but convinced a rather conservative federal judge that the government had committed massive misconduct in the case. Kunstler admitted that he had begun the case believing the judge to be a racist, but grew to respect him as he ruled correctly time after time. To us, this case proved an important principle that Kunstler could never fully embrace, that a person committed to the legal system could be decent, honest, just.

When he tried to use his fame and credibility with radicals to negotiate peace at Attica and failed miserably, he was blamed for naive misjudgments in advice that many believed contributed to the horrible climax. To many, including his daughters who were very young at the time and now are the co-creators of this documentary of their father, Attica was a depressing turning point. For the rest of his life, Kunstler represented clients who were not only “unpopular” to the establishment, they were often despised by his presumed constituents, The Left.

He defended the accused in the 1993 bombing of The World Trade Center, and the accused killer of radical Jewish Defense leader Meir Kahane, who had preached violence against anti-semitism. A young Palestinian man was arrested, gunshot residue on his hands. He denied his guilt in the face of strong evidence. Kunstler won acquittal and was excoriated by the liberal Jewish community as a “self-hating Jew”. His house was picketed, and his young daughters felt shame along with fear. They asked, “Daddy, do you think he was guilty?” His lawyerly answer that the question is irrelevant of course disappointed them.

He defended a drug dealer who shot police officers who had come to “arrest” him. He won an impossible acquittal on self defense. The press, politicians, and the public were appalled.

He defended Yusef Salaam in the sensational “Central Park Jogger Case”. Salaam with other African American youths were arrested for raping a white woman while rampaging through the park “wilding” which the press attributed to Tone Loc’s rap classic “Wild Thing.”

It was another in the long line of perfect storms that conspire to create spectacular pop culture moments in courtrooms. Four of the defendants had confessed after many hours of interrogation, implicating Salaam, who was the only one who did not confess. They were all convicted, although no DNA evidence or eyewitness identifications were produced. Liberal New Yorkers joined The Daily News in the hysteria that polarized the city by race and class, calling for all but lynching of the accused defendants. `

Recently, the convictions were overturned when a prisoner serving life for serial rapes and murder confessed that he did it, acting alone, and DNA tests confirmed it. The New York police had obtained false confessions. Kunstler did not live to see this reversal. He died in 1995.

The legacy of lawyers such as Clarence Darrow and William Kunstler is mainly positive. The human frailties they displayed – attributed to their outsized egos and the hyperbole demanded by the pressure of their times – can be understood and balanced against the courage they displayed. They used their skill and energies mostly to achieve good, fighting against perceived injustice. History has ratified most of their choices. They fought for the right side most of the time. For a lawyer, that’s a pretty good epitaph.

Tuesday, June 29, 2010

Whining in The Gulf

Are you getting tired of the whining by officials and residents of Louisiana and Florida about the disastrous results of their own greed and negligence?

I am. These deep crimson states of the deep south have long supported the oil industry and other business development over traditional concerns about the risks to the environment. Now, they moan about the clean-up defects from one side of their mouths while from the other side they bemoan the loss of oil industry jobs.

Although they consistently opposed meaningful federal regulation of businesses, and favored jobs vs environment, politicians and residents in this region have the gall to blame the federal government for failing to regulate the oil companies and for failing to clean up the mess that non-regulation created.

In fact, we citizens of the rest of the country should be enraged at the behavior and neglect of these states. Every state has a responsibility to preserve its environment resources. This is true of our parks and coastlines. It is in our best interests to do so and it is our duty to do it for the benefit of all and for future generations.

Now, Louisianians and Floridians are reaping the harvest they sowed ... oil on their shores. Shame on them.

Sunday, June 27, 2010

Brooklyn 7, L.A. 1.

This week, the Los Angeles Times commemorated the interleague series between the Dodgers and Yankees by printing the results of a poll of "experts" called the "all-time Dodgers, Yankees rosters."

What I found interesting was that, although the Dodgers have been in L.A. for more than a half century (having played more games in Chavez Ravine than they did in Ebbets Field), the consensus of experts was that 7 of the 8 best Dodgers who were position players were those who played (most of their careers) in Brooklyn rather than in L.A.

[HOF = Hall of Fame]
1b: Gil Hodges (1943-1963); Second on Dodgers' home run and RBI list. [not in HOF enormous injustice].
2b: Jackie Robinson (1947-1956); Averaged 95 runs in 10 seasons (refused trade to Giants, retired). [HOF]
3b: Ron Cey (1971-1987) 20 plus homers 7 times as Dodger. Great nickname: “The Penguin.”
Ss: Harold “Peewee” Reese (1940-58) Team leader in runs, #2 in hits. [HOF]
C: Roy Campanella (1948-57) 3 time NL MVP, 9 time All Star. [HOF]
CF: Duke Snider (1947-64) Team leader in HR’s, RBI’s, extra base hits. [HOF]
LF: Zack Wheat (1909-27) 2,884 hits, 1,289 runs. [HOF]
RF: Carl Furillo (1946-60) Lifetime BA .299 with 1,1910 hits, 1,58 RBI; “The Reading Rifle”.

I admit that the consensus was not unanimous. Some idiots suggested that Steve Garvey replace Hodges[!] What next, Lopes over Jackie? Okay, a fair argument for Maury Wills over Peewee and for Tommy Davis over Furillo. But that's about it. I might counter with Jim Gilliam or Billy Cox over The Penguin, if you want to play that game.

As to pitchers, they chose Koufax, Drysdale, Zach Wheat (who even predates my memory) as well as Don Sutton, Fernando, Orel. But they left out Newk and Oisk. In relief: Gagne [a steroid cheater] and Labine.

All-time owner? I'll take Rickey over O'Malley any day.

And what about Vin Scully? The all time best baseball broadcaster, who spans both eras. Wonder who's on Vin's team? Was Red Barber better than ... who are the other guys out here?

Okay, so I am biased. Sue me.

Sunday, June 13, 2010

Feel No Pain

Bijou would come home from a frustrating day at work
and want to talk about it
... and talk about it.
I would come home from a frustrating day at work
and want to forget it.

So she talked

... and I listened.
Then I made a terrible mistake.
I suggested solutions for her problems.
She became enraged.
"Don't solve my problem.
Just listen to me and empathize."

I protested.

I am a lawyer,
trained to hear my clients' problems
and to solve them.
Imagine if I told my client that I empathized,
and then left the jail.

Eventually I learned to speak the language,

to sense the warning signs
that marked the beginning of the burst of emotion
that demanded attention.

Bill Clinton is credited

with mastering personal politics.
He made everyone,
especially female voters
feel as if he understood
and empathized
with their problems.
In the jargon of the time,
he felt their pain.

Barack Obama has a hard time with Clintonspeak.

His approach is more lawyerly,
less emotive.
In a crisis he will first seek facts,
then seek solutions.

The press and shallow observers slam him

for failing to show emotion
(i.e., anger) at enemies of the state
-- like BP and GM.
The media wants him to be more like an action star
swearing revenge.

Would they prefer the G.W. Bush tactic

of manipulating the overwrought emotions
of the nation following 9/11
to lead us into disastrous wars?

Saturday, June 12, 2010

Give me libertarian or give me breath

Chutzpah is blaming the the BP oil spill on the federal government after years of insisting with equal vigor that government should not interfere with business, especially the big ones involving national security - like oil companies.

Both Left, Right and Center share responsibility for this and other crises of our time. De-regulation began in the 1970's with Jimmy Carter, accelerated under Reagan, and was embraced by Clinton, who declared that the era of big government was over.

There is grumbling on the Left because Obama's style doesn't permit him to rant and rave. He has not threatened to nationalize the oil, auto, coal, financial, or insurance industry as much as his supporters would wish him to do it. This is the same Left that called Bush an immature cowboy for his ravings about terrorism and macho threats that alienated our allies and independent nations.

The Right also blames Obama for the recession, for bailing out companies whose failure would have destroyed our economy for fifty years rather than the time it will take to dig out of the mess they left for him.

The Right laid the groundwork for the worst epidemic of corporate incompetence and greed since 1929. From Exxon to Enron to Goldman Sachs, from General Motors to Toyota, from coal mines to oil rigs, big government cannot compete with big business for gross negligence, fraud, or greed.

Bush / Cheney produced an era of incompetent and corrupt government that challenged the Harding administration of the early 1920's - which also permitted big oil interests to buy the government. In Afghanistan and Iraq, in New Orleans, in Texas, on the coastlines, on Wall Street, government policies resulted in disaster.

Every crisis Obama has had to deal with for the past year and a half has had roots deep in the past. The truth is that there was nothing more he could have done in the time he had to forestall or even mitigate the damage.

Calls for kicking ass are like cries to shoot first and ask questions later. It is akin to the traditional witch hunts and scapegoating that accompanies every crisis.

Tuesday, May 18, 2010


Observations about the latest SCOTUS rulings:

In one case, the court found LWOPP sentences for juvenile violative of 8th Amendment (cruel & unusual punishment) except for murder. In another case, the court upheld a federal law authorizing extended civil commitments of sex offenders based on threats of future danger to children based on proof of propensities to commit sex crimes.

For those interested in the soap opera of shifting alliances on the court, the usual suspects dissented in both case: Scalia and Thomas. In one case, Roberts joined the majority holding but not its rationale. In the other, Alito did the same. Kennedy wrote the majority (5-4) opinion in one, Bryer the other (7-2).

In the debate of left vs. right, so-called “libertarians” immediately decried both rulings. One interfered with states eliminating vicious teenagers. The other upheld a civil law based on a premise that was not literally found in the Constitution. Conservatives will rage about reference in the court’s opinion to international standards of morality in sentencing.

The left is likely to approve the juvenile decision but might be (at least should be) troubled that the court was not troubled by a law that permits lengthy involuntary incarceration based on unreliable medical predictions of future dangerousness.

As Solicitor Gen, court nominee Kagan had argued support for the federal law, thus making new enemies, or at least reinforcing the enmity of her opposition.

In practice, neither case has much impact in California. The vast majority of our vicious juveniles with LWOPP sentences are there for murders. Only a few crimes (eg. kidnap for ransom) authorize that sentence and resentencing to life with possibility of parole or a sentence of years will pose no great barrier to a virtual life sentence. Adding up of consecutive sentences including the many enhancements provided by the criminal statutes can result in sentences like: 184 years, of which the criminal must serve 85%.

California has a law analagous to the federal civil commitment to extend incarceration of sexual offenders. Our sexually violent predator (SVP) law is being applied every day in our courts.

Sunday, May 16, 2010

Short, fat and ugly: You're under arrest!

They got grubby little fingers
And dirty little minds
They're gonna get you every time
Well, I don't want no short people
Don't want no short people
Don't want no short people
'Round here.

“Short People” By Randy Newman

Today’s New York Times reports that some economists argue that short people are more apt to become criminals. If the poor shrimp is also fat and ugly, look out. He is more likely to fail in school, romance, and business.

You may be skeptical about this latest study, call it junk, point to it as just more evidence that the term social “science” is absurd. Support for this view may be found in the details of these studies. For instance, the economists examined records from the last three centuries to conclude that “shorter men are 20 to 30 percent more likely to end up in prison than their taller counterparts, and that obesity and physical attractiveness are linked to crime.”

Although they found from 19th century prison records that “increased body weight was associated with a lower risk of crime,” the trend has reversed in our time. Now, “being overweight is linked to a higher risk of crime.” According to the Times article, the studies attribute this to the difference in the labor market — from manufacturing which favored strength and endurance, to service jobs which values attractiveness and self-esteem.

It starts in school, where shorter students get lower grades, have more behavior problems (seeking attention?) and participate less in clubs and sports, which leads to fewer social connections. From birth, medicine correlates development with size – height, weight — and nutrition, general physical and mental health, resistance to disease are all pinned to these issues. Poverty has long been associated with physical disabilities.

On the one hand, you may say, “Duh!” You need studies to figure out that socially scorned children become failures in life? On the other hand, you may be appalled by the echo of Social Darwinism in the claim, something that history teaches us is a slippery slope leading to racism, Nazi ideology, and genetic preferencing.

Another study found that Americans are getting shorter and fatter compared with our history and with other industrial nations. Some speculate that our deficient health care system (compared with Europe’s) is the culprit. For others, the blame is placed on — guess what — immigration.

Yes ...
Give me your tired, your poor,
Your fat, Your short, Your ugly,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.

[apologies to Emma Lazarus]

Findings that obesity, unattractiveness, and diminutive stature are disadvantages in the labor market should be no surprise. The scholars are quick to admit that they cannot discern a “cause / effect” relation between the two. The same can be said of the link to crime, although it demands no leap of logic to make the jump.

My own experience in my life of crime doesn’t really support the thesis. I cannot generally conclude that my clients have been fatter, uglier, or shorter than the average. Actually, they can more accurately accuse me of those traits. Lately, I have found that obesity has thrived among jurors, prosecutors, and even some defense lawyers.

Will there be a time when the criminal law’s arsenal of social sciences which already include many dubious theories and prejudices adds physical attributes to the available defenses and excuses? Will prisons become fat farms? Perhaps botox, liposuction, and spine stretching should be added to rehabilitation techniques.

Now, that might really help the economy.

Friday, May 14, 2010

Stupid Criminal Tricks

The reports about the Times Square bomber's incompetence reminded me of my many clients who have done similarly dumb things in their frantic attempts to foul up their lives ... and my chances of winning their cases.

Example: A client entered a McDonald's, ordered a Big Mac, removed a twenty from his wallet. When the register was opened, he pulled a gun, took a handful of cash and fled ... leaving his wallet on the counter. Later, while police were writing the info from the ID in the wallet, he returned, wishing to claim his lost wallet and was arrested.

Some conservatives have withheld acclaim for the capture of Shahzad because of his ineptitude which ably abetted his pursuers. What the critics igore is that his flaws are not rare. They are common among wrongdoers, whether from nerves, fear, or a self-destructive impulse (see introduction to Borenstein's Law for a more thorough explanation of the phenomenon).

It is this same trait that impels captured criminals to talk freely and willingly to authorities even after warned that "... anything you say may be used against you ..."

Example: In a recent case, a D.A. provides a CD to me with a twinkle in her eye. "You're gonna love this," she chuckles. I listened and chuckled (ironically).

It was a recording of a phone call made from the jail to my client's friend (who later became a co-defendant). My client's voice is clearly heard making a number of incriminating statements in a confidential tone, some whispered, some in street slang, but all clearly inculpating.

Periodically, he is heard to pause while a recorded voice interrupts his conversation with the following: "Warning: calls from the jail may be monitored for security reasons ...." After hearinjg each loud warning, my client simply continues his admission.

Wednesday, May 05, 2010

Goodnight, Miranda

The current controversy about providing Miranda warnings to “terrorist” suspects tickles me. I have been dealing with it for more than forty years. It is one of the most misunderstood rules and has been controversial since it was issued, in 1966.

But the outcry about the possibility of terror suspects having and demanding their rights under the Constitution before providing intelligence that could lead to arrests of other plotters and finding evidence of future crimes is rampant. The amount of misinformation and hysteria is amazing.

This is Yahoo! search screen is a small sample:

"782,136 results for “miranda warning terrorist…:

" - Holder: Miranda Warnings for Terrorists Won't ... Holder: Miranda Warnings for Terrorists Won't Harm Interrogations ... If the suspected terrorist IS AN AMERICAN CITIZEN, miranda and right to an attorney are ..."

" - Reading Miranda Rights to Terrorists Is 'Crazy' and 'Stupid,' Say GOP Congressmen ... Miranda warnings were mandated by a U.S. Supreme Court decision that said domestic law ... "

"Will terrorists be given Miranda warnings? Saturday, February ... matter of terrorists and Miranda warnings (and by extension the trying of these sub ..."

"Miranda Rights for Terrorists. BY Stephen F. Hayes. June 10, 2009 2:05 PM ... many Americans are familiar with the Miranda warning - so named because of the ..."

"Jo's Cafe " Miranda for Terrorists? Miranda for Terrorists? Tuesday, 27 January 2009, 5:30. As Dear Leader Obama closes Gitmo ... expressed about rights for these terrorists under the Miranda Warning. ..."

"Conservative View Point, Political Blog, Conservative ... Terrorist Miranda Warnings. Posted by Bill Patchett on Saturday, November 14, 2009 12:44: ... If we read these terrorist Miranda warnings we would have obtained ..."

"Obama and Miranda Warnings - The Hill's Pundits Blog ... Obama and Miranda Warnings. By Ron Christie - 06/11/09 09:56 AM ET ... him that terrorist suspects were being read Miranda warnings prior to interrogation. ..."

"DOJ Confirms FBI is Reading Miranda Rights to Detainees in ... the FBI is reading Miranda rights to terrorist suspects in Afghanistan: "There has been ... Miranda warnings. In September 2008, when McCain-Palin pulled ahead of Obama...""

Without hysteria or hyperbole, these are the facts as I know them from forty years of criminal practice:

The Miranda holding was intended to enforce the Fifth Amendment’s command that no person shall be compelled to give evidence against himself.

Courts long ago decided that any admission or confession of guilt by a suspect must be shown to be voluntary rather than coerced. The landmark case for this rule is Bram v. U.S., decided as far back as 1897.

In the first half of the 20th century, American courts grappled with the problem of coerced confessions. Common police tactics throughout the country ranged from the less than subtle “rubber hose” to “the third degree” and all the now familiar psychological techniques that border on torture.

Courts responded with occasional but ineffectual rulings that sought to deter such police misconduct until in 1966, the U.S. Supreme Court finally issued its Miranda decision, which required police to warn suspects in custody that (1) they have a right to remain silent, (2) that anything they say can be used against them, (3) that they have a right to have an attorney present before questioning, (4) that if they asserted the right to remain silent, no further questioning could be done. Failure to comply with the rule meant that any statement obtained in violation would be inadmissable in the suspect’s trial (an expansion of the exclusionary rule that courts had imposed for violations of the 4th Amendment’s prohibition against unreasonable searches).

The holding met hysterical opposition as soon as it was issued. Police advocates cried that it would tie their hands, prevent them from “solving” cases, free the guilty. Conservative legal scholars criticized the Warren court’s policy of expanding the exclusionary rule — punishing the society for the “constable’s blunders.”

At the time, more competent and less paranoid law enforcement authorities pointed out that the ruling would be beneficial to police work, demanding that detectives continue to investigate, finding solid evidence rather than lazily relying on unreliable coerced confessions to make their cases.

However, the golden age of the Warren court passed quickly. New “conservative” appointees over the next forty years narrowed the ruling in many ways. Among these changes: narrowing the definition of “custody” and “interrogation”; broadening the permissive form of the advisement. The Supreme Court held that detectives can receive statements even if Miranda is not followed. The prosecutor can’t use the statement in its case, but if the defendant testifies contrary to his statement, it can then be used to impeach him.

Equally important, the Supreme Court has refused to demand a high degree of proof in this area, turning back calls for audio or video taping of the interrogation process to insure its fairness.

Of course, the major defect in the law has always been apparent to anyone within the system. Before Miranda, police were able to coerce confessions and then lie about it in court. After Miranda, they were still able to lie about that and also lie about whether they advised the suspect of rights.

Two important limitations to the Miranda rule are worth mentioning. First, the Supreme Court carved out what it calls “the public safety exception”. In the Quarles case in 1984, the Court held that police could continue to question a suspect without advisement if there was an imminent threat to the public. There, a gun was loose; in other cases it has been explosives, dangerous contraband. The Court did the same in the 4th Amendment (search and seizure) context, creating an warrant exception for “exigent circumstances”.

Beyond all the law, which clearly present few obstacles to questioning of terrorist suspects, is the aspect of human nature that we in the system know all too well. The fact is that criminal suspects in general and people who commit crimes for political motives in particular are more than willing to talk — without counsel or against advice of counsel.

Thursday, April 29, 2010

Two Lives

Two men died recently. Their pictures depict similar looking men, both appear to be gentle elderly men. Both were born in Europe and left after surviving World War II. But the circumstances of their survival couldn't have been more different, the lives they subsequently led were opposites, and the vast differences in their lives are notable and deserving of memory.

Harry Drexler, the father of dear friends, passed away recently. His life was an admirable one, overcoming enormous obstacles to thrive in America. He should be remembered as a much loved and admired family man.

The death of a man named Paul Shaefer was reported today in the Los Angeles Times. His life was a despicable one, taking opportunities to victimize and damage human beings. He should be remembered, if at all, as a monster.

These are their obituaries as each appeared in the Los Angeles Times.

Harry B. Drexler, June 8th, 1919 - April 23, 2010of North Hollywood California, passed away Friday April 23, 2010.
Harry Drexler was born in Poland, on June 8th 1919. Harry miraculously survived the Holocaust while almost all of his family perished. Harry was the devoted husband of Rena Drexler for 63 years, the father of David Drexler and Nina Guttman, grandfather of Jonathan and Justin Drexler, Leora Lang and Elana Guttman, and great-grandfather of Shai and Gabriel Lang.

After the War, he met Rena, a survivor of Auschwitz concentration camp, in Germany. They married and immigrated to the United States in 1951.

In 1957, Harry and Rena opened Drexler's Delicatessen, the first kosher deli in the San Fernando Valley. Drexler's Deli became a famous landmark in North Hollywood, with Harry and Rena serving as pillars in the growing Jewish Community.

Harry worked tirelessly, every day, except the Sabbath, as a butcher, providing for his family and serving the needs of his customers and community. With a strong work ethic, and unwavering family values, Harry successfully achieved the American Dream and built a strong foundation for his family. Harry always cherished his family and the traditions of the Jewish faith.

He was grateful for the freedom, liberty and opportunities in America. He deeply loved his Dodgers, Lakers and America.Harry will be fondly remembered as a man of few words, with a big heart. He was the rock-solid anchor of his family and community.

And this is the obituary of the other man:
Paul Schaefer, a former Nazi Luftwaffe medic who founded a secretive, commune-like colony of German immigrants in Chile, died of heart failure Saturday in a Chilean prison where he was serving time for child molestation and human rights abuses dating to the dictatorship of Gen. Augusto Pinochet. He was 89.

Schaefer immigrated to Chile from his native Germany in 1961 and started Colonia Dignidad, or Dignity Colony, a strictly regimented enclave 210 miles south of Santiago that was home to several hundred Germans and Chileans.

According to witnesses' testimony in court documents, Schaefer allowed Pinochet's security forces to operate a clandestine prison on the grounds where they detained, tortured and executed dissidents during the 1973-1990 military dictatorship.

Colony members say he ruled them cruelly as well. Married couples were forced to live apart, and children were separated from parents. Residents were prevented from leaving. Those who angered Schaefer were subject to electric shocks, high doses of tranquilizers and long periods of isolation.

Many "became real slaves of Schaefer, like robots dedicated only to obey his orders and not displease him," members said in a newspaper ad they took out in 2006 acknowledging human rights abuses at the colony and asking for forgiveness. The colony is now called Villa Baviera.There were also dozens of allegations of child molestation, leading Schaefer to flee the country in 1997. He was arrested in neighboring Argentina in 2005 and extradited back to Chile the same year.

Schaefer was convicted in 2006 of sexually abusing 20 children who attended the colony's school and clinic. He was sentenced to 20 years, plus three additional years for an illegal weapons conviction.

In two separate cases in 2008, Schaefer received more prison time for the torture of seven colony residents and for the fatal poisoning of a renegade security agent during the dictatorship.

After his World War II service, Schaefer became an evangelical preacher. He fled Germany after being accused of molesting boys at the orphanage he ran.

Another DNA reversal

NY man wrongly convicted of killing woman in 1988 is cleared by DNA evidence, goes free.

BEN DOBBIN, Associated Press Writer
April 28 2010, 2:47 PM PDT

ROCHESTER, N.Y. (AP) — A former truck driver who spent nearly 19 years behind bars for a 1988 slaying he didn't commit walked free Wednesday after DNA testing exonerated him and instead pointed to a man who strangled a 4-year-old girl in 1994.

Sunday, April 25, 2010

Arizona's Immigration Law: fascist or business as usual?

Arizona’s new law (SB 1070) which, among other things, authorizes detention and questioning of suspected illegal aliens, is a political hot potato.

The law which has the overwhelming popular support of Arizona citizens has been labeled as fascist and Nazi by non-constitutional scholars such as Keith Olbermann and Cardinal Mahoney. "Let me see your papers," cable comic Jon Stewart accurately recalls, was the familiar chilling phrase repeated in all those black and white movies of the 1940's that depicted Gestapo inquiries inevitably leading to concentration camps.

The other side of the argument, represented by equally hyperbolic, but openly xenophobic Fox commentators and the Arizona governor, is that this measure is needed because of a "dire emergency" in the state.

The porous border with a near failed drug state is intolerable, dangerous to Arizonans, especially in these fragile economic times of high unemployment and limited government resources.

[As a footnote, I am currently re-reading Barbara Tuchman’s "The Zimmermann Telegram", which summarizes U.S. relations with Mexico circa 1916, when President Wilson sent General Pershing and thousands of U.S. soldiers in a "punitive expedition" to capture or kill General Pancho Villa, after his soldiers raided a New Mexico border town and killed American citizens. Mexico, it seems, was as unstable and poor as it is a hundred years later.]

Adversaries on either side display ignorance of the current state of the law and the demands of our Constitution as they are interpreted by our courts. In the following post, I am going to try to calm the waters a bit, while showing what my legal training leads me to believe is the basic problem with this kind of law.

Note: I’m going to use quotes to denote language of the statute and cases; I’m going to use italics to denote words or phrases that need further definition. Notice how vague these terms of art are, and how much leeway their vagueness gives to police and the courts in their enforcement.

First, these are excerpts of the law, which is titled: "Support Our Law Enforcement and Safe Neighborhoods Act." [Now, who can oppose that?]




"F. For the purposes of this section:



"Impounding a vehicle is authorized if:

Even without this statute, our current law is generous to police in their contacts with suspicious people. These are the rules as reflected in the language and reasoning of cases from the U.S. Supreme Court and high state courts:

1. Police can ask anyone for identification.
Law enforcement officers do not violate the Fourth Amendment in approaching an individual on the street or in another public place and asking if he is willing to identify himself. (Florida v. Royer, U.S. Supreme Court, (1983) .)

2. If Police have cause to stop a vehicle [eg,any traffic violation], they can ask the passenger [who has done nothing suspicious] for his identification.

Once the privacy of a car has been intruded upon by a lawful traffic stop, the courts find no reason to expand the rights of passengers in vehicles beyond those afforded travelers in airports; employees in garment factories; or fishermen on public streets. All can be asked for identification.

3. But what if a person refuses to provide identification? May he be detained [defined as prevented from departing] further for identification purposes?

The lawful request by a police officer of anyone on the street for identification does not in and of itself turn the otherwise consensual encounter into a detention.

However, a passenger in a stopped car is not in the same situation as a person standing or walking on the street. When the police stop the car, the passenger is detained.

When a police officer asks a detained passenger for identification, no reasonable person would feel free to refuse that request. Thus, such a request is in fact a demand and thus is unlawful without further cause.

4. When is a detention [a temporary seizure of a person] constitutional?
"The Fourth Amendment prohibits detentions of persons by law enforcement if they are unreasonable." (Terry v. Ohio U.S. Supreme Court (1968).)

A detention is reasonable under the Fourth Amendment if the detaining officer, at the time of the detention, can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.

5. The courts recognize the wide variety of necessary police functions of modern life.

The community caretaking exception to the warrant requirement derives from the expanded role undertaken by the modern police force. Because of the extensive regulation of motor vehicles and traffic, and also because of the frequency with which a vehicle can become disabled or involved in an accident on public highways, the extent of police-citizen contact involving automobiles will be substantially greater than police-citizen contact in a home or office.

Some such contacts will occur because the officer may believe the operator has violated a criminal statute, but many more will not be of that nature. Local police officers, unlike federal officers, frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.

In addition to their investigative tasks, police officers regularly perform community caretaking functions—helping stranded motorists, returning lost children to anxious parents, assisting and protecting citizens in need.

There are other exceptions recognized by courts, which free police from constitutional restraints. The emergency aid component of the community caretaking exception requires specific, articulable facts indicating the need for swift action to prevent imminent danger to life or serious damage to property.

In addition, "circumstances short of a perceived emergency may justify a warrantless entry, including the protection of property, as ‘where the police reasonably believe that the premises have recently been or are being burglarized.’

The appropriate standard under the community caretaking exception is one of reasonableness: Given the known facts, would a prudent and reasonable officer have perceived a need to act in the proper discharge of his or her community caretaking functions? . . .

In determining whether the officer acted reasonably, due weight must be given not to his unparticularized suspicions or hunches, but to the reasonable inferences which he is entitled to draw from the facts in light of his experience; in other words he must be able to point to specific and articulable facts from which he concluded that his action was necessary.’

As I see it, the problem with this law is the same problem we have been coping with for fifty years or more. The standards of police contacts are so vague that they are almost meaningless. Police are free to be "creative," i.e., to lie. They claim to "see" suspiciious acts, smell odors, hear words and acts that their "experience and training" gives cause to suspect criminality over the denials of indepependent witnesses. Courts (made up of judges who are former prosecutors elected or appointed to enforce popular laws) will not wish to negate police activity intended to, in the words of the title of the statute: "support law enforcement and safe neighborhoods."