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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.