Stanford law student Jon Abel was kind enough to send me an email to let me know that a post of mine was cited, and quoted to the extent that it infringed upon my copyright, in a brief before the Supreme Court in Premo v. Moore, argued October 12, 2010.  Sadly, it wasn’t cited by respondent, Randy Joseph Moore, but in the brief of amicus curiae, the Criminal Justice Legal Foundation.

The CJLF seeks to bring the constitutional protection of the accused into balance with the rights of the victim and of society to rapid, efficient and reliable determination of guilt and swift execution of punishment.

Great.  And written by my good buddy, Kent Scheidegger, who also happens to have a blawg called Crime and Consequences.  Kent and I don’t always see eye to eye, if you catch my drift.

In Premo, the plain English issue via SCOTUSBlog is:

When a defendant has pleaded guilty, but later challenges his conviction on the ground that his lawyer should have moved to suppress his confession, is he entitled to habeas relief upon showing that his confession was coerced?

Moore’s trial lawyer acknowledged that his failure to move to suppress the confession was a glaring mistake.  The CJLF cites to my post, Walking the Walk, concerning our responsibility to own up to any potential mistakes at trial rather than reflexively deny that we could have possibly been wrong.  It speaks to putting our obligations to our clients ahead of our ego and self-interest.  It gave the CJLF an opportunity to attack.

Kent calls my post “remarkable,” and not in a good way.

This post is remarkable in several ways. One is the view that an adverse result plus less than perfect representation are sufficient to establish ineffective assistance. Strickland is clearly to the contrary.

Well, that’s not quite what was said.  In fact, that’s not at all what was said.  The post addressed the factual underpinnings of ineffective assistance, and didn’t address whether the errors sufficed to meet the Strickland v. Washington test at all.  First things first: Until the defendant can establish that mistakes happened, there can be no application of the law to those mistakes.  Knowing that Kent realizes this, it’s a disingenuous argument.

More specific to the present issue, this post reflects a view that it is the duty of trial counsel to assist the attack on the adequacy of his own representation, even to the point of ridiculing those attorneys who defend the quality of their own work, calling them “children.”  While the author’s attitude is not universal, it is also not rare, particularly in capital cases.

While not nearly as disingenuous as his initial point, Kent has omitted the one critical factor that distinguishes the point: the truth.  Where trial counsel made mistakes, his duty to his client compels him to tell the truth.  Conversely, it precludes him from defending the quality of his work then it’s not the truth.  Of course, Kent is quite correct when he states that this attitude is not universal.  Sadly, the predominant reaction to a challenge to trial counsel’s representation is knee-jerk self-defense.  Apparently, the CJLF stands in favor of knee-jerk.  It would make for a good motto, “Defending knee-jerks since 1982.”

What makes this use of my post notable is that Scheidegger has taken a post that was clearly intended to implore criminal defense lawyers to be honest and accurate about their potential mistakes and used it to attack the concession by Moore’s trial counsel as to his error in failing to move to suppress Moore’s confession.  The gist was:

For this reason, courts have long known to take trial counsel’s with a pinch of salt.  “Self-proclaimed inadequacies on the part of trial counsel in aid of a client on appeal are not  persuasive . . . to hold otherwise would render complaints of inadequate representation ‘a “boudoir defense,” unchallengeable by the prosecution . . .’ “

Utter nonsense aside, given that no court will blindly adopt defense counsel’s admission of error as a per se basis to reverse for ineffective assistance, Scheidegger uses my argument for honesty to impeach Moore’s trial lawyer.  Pretty darn crafty, Kent.

For a while now, I’ve tried to impress upon social media users that the things they write online can be used against their clients in ways they might never imagine.  I preach caution and circumspection.  Many have reacted by telling me I’m no fun at all.

But I want to.  But I like it.  But it’s good for me.  Whether the egocentric trench menu twit or the self-promotional post about your latest big case, you are giving away information that belongs to someone else, someone who trusted you with their life.  I’ve heard all the argument to the contrary, both logic based and purely self-indulgent emotional, and it leads me to respond with one word: Bullshit.  It doesn’t matter how much you want to give information away.  It’s not yours to give.  It’s not yours to even potentially give.  It’s not yours to assess the risk of harm to give, as there is no risk of harm to your client that can justify your having a good ol’ time at your client’s expense.  None.

This social media is risky business, far more so than most realize.  Some think me paranoid, overly protective of the privacy of my clients as if there’s a federal agent under every rock.  They miss the point.  There doesn’t have to be a federal agent under every rock; just under one rock.  Just once.  And it doesn’t even have to be a federal agent, as it could be a Kent Scheidegger.

When I wrote the post that gave Kent fodder to shoot at Moore’s lawyer, I certainly didn’t think about the potential that it would be used in a brief before the Supreme Court of the United States.  Then again, there’s no reason why I would have,  And yet it was, and it was used in a way that was directly contrary to my point.  Please remember that this can, and will, happen. 

There’s nothing to be done to prevent the manipulation of content when it serves an adversary, but let’s not make it as easy as possible for the other side to use it against your clients.  I realize how hard it is to ignore the self-promoters and marketers, but real lawyers put their clients first.  And Kent, putting clients first doesn’t require sacrificing one’s integrity. 

If you start from the position that Miranda warning were meant for “us” and not “them,” and mix in a healthy dose of terrorism fear with a dash of blind faith in government, then Volokh Conspirator, former federal judge turned lawprof Paul Cassell seems to have done us a favor by clearing up the lingering question : Isn’t it time to codify the exception to Miranda for terrorists?

No need to sweat the details.  Cassell has his exception already laid out.

Because there appears to be some legal uncertainty about whether the public safety exception covers terrorist investigations, it would be useful for Congress to weigh in on the subject and clearly express its view.  Here’s one way a statute covering terrorist investigations could be drafted:

¨“When a law enforcement officer questions any suspect arrested for terrorist offenses found in chapter 113B of Title 18, or comparable offenses under state law, a situation involving the public safety shall automatically be deemed to exist and the officer need not provide any advice of rights to the suspect.  Any voluntary statements made by the suspect shall be admissible in any prosecution thereafter brought by the United States or by the District of Columbia.”

From Cassell’s perspective, he’s covered all the bases.  After all, no right-thinking American would question whether terrorists, identified as any person a law enforcement officer arrests for “terrorist offenses found in chapter 113B of Title 18, or comparable offenses under state law,” deserve rights.  They’re terrorists, for crying out loud.  We should presume they know what cave Osama’s in, and where the next bomb will explode.  And really, between us Americans, they wouldn’t give us the time of day, so why give it to them?

Cassell’s exception contains two absolutely remarkable things:

1.  It creates an “automatic public safety exception,” meaning that the whole rationale behind New York v. Quarles, dubious to begin with, is tossed out the window.  Call someone a terrorist and get a free interrogation.  No imminent public safety concern?  No problem. 

2.  “Voluntary” statements, sans Miranda, “shall be admissible.”  In this context, it would appear that voluntary refers to statements that do not require a rubber hose.  The Reid Technique, obviously, does not render statements involuntary. 

It’s fairly easy to understand why, from the position of a person inclined to repose absolute trust in the government and to buy into the nonsensical fear mongering that’s been used so effectively to manipulate public opinion, this codification makes infinite sense.  It’s similarly easy to understand why those who are less inclined to turn over the keys to the castle to the G-men would be less enamored with this codification.

This exception begins with the codification of the presumption of guilt.  Arrested?  Close enough.  It then opens a hole big enough to drive a car bomb through, that the person arrested need only be “suspected” of a terrorist crime.  If that’s not enough, the terrorist crime could be one under 18 USC 113B or “comparable state laws,” like terrorist jaywalking.  Don’t laugh.  Notice how the word “terrorist” appears before every alleged “threat” lately?

But what’s striking is that this codification memorializes the failing of “remembering the rubric while forgetting the rationale.”  The public safety exception of Quarles, already a police scam if courts were so inclined, would be automatically disconnected from interrogation.  No issue of public safety at all?  No problem.  Terrorist claim = no Miranda, a simple equation.

The kicker is that the payback for a non-Mirandized arrestee, that the information obtained without benefit of warning, can’t be used in court, either directly or indirectly.  It makes some bit of sense to allow a public safety exception to provide for, you know, public safety, as opposed to obtaining a confession to make a conviction quick and easy.  Now it’s just a matter of quick and easy, no public safety necessary.  Very effective in the war against terrorism.  Not so effective in the war against the evisceration of constitutional rights. 

But hey, they’re terrorists!  They don’t deserve rights.  Everything’s different now.

A comment to Cassell’s post captures the essence of what this is really all about, from our favorite Justice:

I’m reminded of Scalia’s (piquant!) dissent in MD v. Craig:

The State’s interest here is in fact no more and no less than what the State’s interest always is when it seeks to get a class of evidence admitted in criminal proceedings: more convictions of guilty defendants. That is not an unworthy interest, but it should not be dressed up as a humanitarian one.

Let’s get real.  The Constitution, taken with all those nasty rights used to provide viability to its proscriptions, can really get in the way of effective law enforcement.  Without this slavish compulsion to provide rights to bad people, imagine how much safer we could all be.  Don’t you want to be safer?  Don’t you trust law enforcement to do the right thing?  Paul Cassell does.

There is an animation going around the blawgosphere dealing with some confused, snarky, pointless advice for would-be law students.  I don’t like it and think it’s not merely wrong, but stupid and utterly unhelpful.  Rather than explain why this is so, as should be obvious to anyone with half a brain, it strikes me as far more valuable to address real concerns by offering this video of real people providing hard, cold, critically important thoughts. 

Animations are for kids.  This is real people.  Pay attention and learn something.

In 2007, Ronald Jabalee Jr. and Ryan Jabalee stood over the grave of their murdered parents, Ronald and Christine Jabalee.  As described in the Detroit Free Press :

Ryan Jabalee was heard crying or sobbing on a recording device set up by law enforcement at the gravesite of his murdered parents, . . . His brother, Ronald Jabalee Jr. — who is standing trial today in Macomb County Circuit Court in the October 2006 slayings — did not sound distraught.

There are few places where privacy is more obvious and expected than at a gravesite.  It’s where a person comes to terms with the deceased, and where one can immediately tell whether there is anyone within earshot.  Except when the police set up a recording device on the grave.

Defense attorney Stephen Rabaut said the device was installed without a warrant and that the Fourth Amendment goes beyond telephone calls and includes invasion of privacy.

“It’s eavesdropping,” he said, adding that Michigan has a law about eavesdropping.

The prosecution, as it occasionally does, disagrees.

Assistant Prosecutor Steven Kaplan disagreed, saying “there’s no privacy in public.”

What is particularly curious about Kaplan’s position is that it flies in the face of the argument proffered by police in their claims that they are entitled to privacy while threatening, shooting or beating suspects without cause.  Of course, Ronald isn’t a cop, isn’t on the public dole and maintains, and is entitled, as Katz v. United States provides, to a reasonable expectation of privacy.

But the gist of the prosecution’s point here, and one that is generally misunderstood, is that eavesdropping is not limited to tapping phones or computers, but extends to the use of any electronic or mechanical means of intercepting a communication that could otherwise not be heard.  In other words, if the police use a device of any sort to capture what they couldn’t capture otherwise, then it’s eavesdropping, and it requires a warrant with all the accompanying prerequisites to issuance.

Distinguishing this particular instance, however, is the troubling nature of the intrusion.  The brothers stood at the gravesite of their parents.  I would imagine that the police figured this would be a great place to put their mic, as it was very likely that the two would come visit the grave and, more importantly, do so together.  They could capture the brothers talking to each other, maybe discussing how one, the other, both, murdered the folks.  Perfect.

Yet the offensiveness of this intrusion can’t be ignored.  Is nothing sacred?  What (though this notion never occurs to cops) if they were wrong about one or both of the brothers having murdered their parents?  What if these two brothers came to the grave to express their love and mourn their loss.  Should the police have the ability to capture this moment?  Maybe they can play it at the next cop party for kicks?  Where does the desire to catch someone end and a bit of decency begin?

Notably, the police did not capture a confession, but they did get something that fit into their paradigm.  Ryan was sobbing.  Ronald, Jr., “did not sound distraught.”  Aha!  Gotcha.  You see, as cases are tried, one of the methods of proving the secret, hidden motives of people which prove that they committed an act no one saw is that they don’t behave the way police would have them behave.  Ronald should have sounded distraught.  No distraught equals killer.

Sure, it could be that Ronald was stoic.  It could be that Ronald, trying to be brave and bolster his sobbing brother, didn’t let down his guard and weep for his dead parents.  It could be that Ronald isn’t the most emotional or sentimental guy.  Or maybe Ronald was still in shock, needing years of therapy to come to grips with his feelings.

Doesn’t matter.  The cops will testify how Ronald should have been distraught, because that’s the way people behave when the visit the grave of their parents.  The defendant will never be allowed to put on a witness to testify to the contrary, because it would lack foundation unless Ronald testifies as to why he wasn’t sufficiently distraught to please the cops.  Of course, Ronald can’t be compelled to testify, and may be one incredibly lousy witness for any number of reasons wholly unrelated to the allegations, but that won’t change how the testimony plays out.  If Ronald doesn’t testify, then lack of distraught will equal guilty.

There should be no issue but that the recording of Ronald and Ryan Jabalee at the gravesite required an eavesdropping warrant.  It’s a no-brainer, and the prosecutors contention that the electronic interception of communications of a private individual is permitted because it’s not behind closed doors, or on a phone, is ludicrous.  One can only hope that the reason the cops eavesdropped without a warrant is that they didn’t believe any judge would have been callous enough to allow them to bug the grave.

H/T Bad Lawyer

If the Beav was a real person, he would have recited the pledge of allegiance and the Lord’s Prayer every morning before class, because that’s what we did back then.  Unless, of course, he was a real person in Texas, where he would have uttered an atheist pledge to the Republic of Texas instead.  The reason is that the Texas Education Code, §25.082, demands that its school children pledge allegiance to the state (§3100.101) rather than the Yankee federalists.

But some Texan screwed up and left out the critical words that distinguish a great democracy from the filthy communist heathens.  At the behest of Representative Debbie Riddle, who sharply refused to include the words “liberty and justice for all” in her amendment, the state corrected this omission in 2007.  From Lawprof Caroline Mala Corbin at Concurring Opinions :

A few days ago, the Fifth Circuit Court of Appeals rejected an Establishment Clause challenge to the Texas pledge of allegiance. In 2007, the Texas legislative added the words “under God” to the state’s pledge. In evaluating the Establishment Clause claim, the court relied in part on the endorsement test, which asks whether a reasonable person, aware of the history and context of the challenged practice, would conclude that the government was endorsing religion. The Fifth Circuit held that a reasonable person would “conclude that the pledge remains a patriotic exercise” and that the new version “acknowledges but does not endorse religious belief.” Most courts to decide the issue have agreed with the Fifth Circuit.

Whew.  Can you imagine what would have happened had the Fifth Circuit not ruled in favor of God?  Texas high school football teams would have started to lose games, even against each other, and the Cowboys would be in last place in the NFC East.  Fortunately for all, whether possessed of hat or cattle, the court cleared things up.  From Circuit Judge E. Grady Jolly (of the Mississippi Jollys):

The term God is adequately generic to acknowledge a wide range of religious belief, monotheistic and polytheistic alike. A reference to “God” may not reach every belief system, but it is a “tolerable attempt” at acknowledging religion without favoring a particular sect or belief. Id. We thus hold that the pledge’s use of the singular “God” does not favor a particular faith in violation of the Establishment Clause.

What?  You thought they were referring to Jesus?  No, no, no.  This is the generic God.  You know, the “one God fits all” God.  The one we can all get behind, unless of course we don’t believe in God or are believers in one of this crazy religions which don’t subscribe to an overarching deity. 

There can be no doubt that mirroring the national pledge and acknowledging the state’s religious heritage are permissible secular purposes. Acknowledgment of religious heritage, although religiously oriented, “is no less secular simply because it is infused with a religious element.” Freiler, 185 F.3d at 345. The same is true of the defendant’s mirroring rationale.

Texas, you see, just wanted to better “mirror” the national pledge of allegiance.  Except for that “liberty and justice” junk, which it didn’t want to mirror at all. 

Some benefit flowing from state legislation or policy to religion is permissible: “not every law that confers an ‘indirect,’ ‘remote,’ or ‘incidental’ benefit upon [religion] is, for that reason alone, constitutionally invalid.” Lynch, 465 U.S. at 683. Nor does the Establishment Clause forbid statutes whose “effect merely happens to coincide or harmonize with the tenets of some . . . religions.” Id.

Seriously, how much more indirect toward religion can you get than adding the words, “under God”?  I mean, it’s not like they added the words, “under God” or anything.  And the decision goes on.

The real problem, which the 5th Circuit did its absolute best to avoid, is that we have some historic basis, from way back when the entire Establishment Clause concern ran the gamut from Christian to witches, explaining why Christine O’Donnell now finds herself so confused,   Even the finest minds never considered going beyond the pale of the Judeo-Christian ethic, though within the narrow confines of their concerns, they made clear that this new government wasn’t to mix secular with religious concerns.

To straighten out the mess now, however, would require some fundamental alterations to historic positions.  And so the 5th Circuit held:

The pledge is a patriotic exercise, and it is made no less so by the acknowledgment of Texas’s religious heritage via the inclusion of the phrase “under God.” A pledge can constitutionally acknowledge the existence of, and even value, a religious belief without impermissibly favoring that value or belief, without advancing belief over non-belief, and without coercing participation in a religious exercise.

A steaming Texas cowpie, served fresh every morning to its students, courtesy of the Fifth Circuit Court of Appeals.

The initial reports told a story of 20 year old Danroy Henry, Jr., a Pace University football player, trying to run down cops as they arrived to stop a bar brawl outside Finnegan’s Grill at one in the morning. 

When a Pleasantville police officer knocked on the window, Mr. Henry started to drive away, striking the officer and tossing him onto the hood of the car. The car then knocked into another officer, the police said, who was trying to pull the first officer from the hood.

Meanwhile, the Pleasantville officer, who was still clinging to the hood of the car, pulled out his gun and fired into the car. Another officer then fired into the car, which came to a stop after it crashed into a parked police vehicle, the police said.

Mr. Henry and a passenger were shot, the police said. They were taken to Westchester Medical Center, where Mr. Henry was pronounced dead.

For obvious reasons, Danroy Henry didn’t get a say in the matter.  Fortunately, witnesses did, and tell a different story.  Rather than trying to run anyone down, it appears that cops knocked on the window indicating that Henry should move his car and he complied.  As he did so, other cops ran in front of his car, one with gun drawn.  What followed is known.

The police account makes no sense whatsoever, in that there is no reason in the world for Henry to try to run down a police officer, while it makes enormous sense that he would be directed to move his car out of the way.  At the same time, it’s easy to imagine that the officer who sees a car suddenly coming toward him, even if because the cop ran in front of the car as opposed to the car being drive toward the cop, thinks he’s at risk. 

By all accounts, there was a mass of people outside Finnegan’s, estimated at 150, and a gaggle of cops responding to the call for aid, estimated at 50.  Chaos ensued.

The officer who killed Henry, Aaron Hess, was from the Pleasantville.  Officers of the Mount Pleasant Police Department don’t get to discharge their weapons often, and may not be as prepared to fire, or hold fire, as officers who face threatening situations more regularly.  Whether this was a split second decision or mere accidental discharge is hard to say, and will likely never be known. 

The problem is that even before the smoke clears, the concern is how to explain what happened.  It requires justification.  The conduct of the police officers following Henry’s shooting is telling.

According to reports in the Boston Globe, after Henry was shot, he was removed from his car and handcuffed. When police realized that his wounds were grave, they began to administer first aid but did not remove the cuffs. Mount Pleasant Police Chief Louis Alagno said removing the cuffs would have been “a waste of time.” In total, police waited 15 minutes before giving Henry medical attention.

Curiously, one would expect an immediate call for medical assistance after the police shot someone, without regard to whether police “realized that his wounds were grave.”  Anytime police shoot a person, calling an ambulance would seem to be a fine idea.  The police aren’t usually required to make medical diagnoses before seeking aid.

That they pulled the shot Henry from the car and cuffed him is standard procedure, That they waited to get him aid, on the other hand, is not.  That’s the hiatus, the time used to get their story straight.  That’s where they ask each other, “what just happened?” That’s where they find the right words to express what the shot person did wrong and why the cop was justified in shooting him.  It took them 15 minutes to figure this one out.  It was a tough one.

Mount Pleasant Police Chief Alagno is trying to find a video of the scene that will show what happened.  It won’t matter.  If one exists, it will show a car moving forward, a cop suddenly in front of it and guns discharging.  It answers nothing.

Police Officer Aaron Hess likely regrets everything that happened that night.  It wasn’t his purpose to shoot a Pace University football player and kill him.  He just wanted to do his job and make it home to kiss his kids.  Chaos intervened.  Danroy Henry, another father’s son, is dead because he did what a police officer directed him to do. 

I’ve got to assume that there is nothing good to be said of Steven Hayes.  If there was, Thomas Ullmann wouldn’t have had the clerk read from Joshua Komisarjevsky’s prison writings.  Desperate measures are used when there’s nothing else to say.  And let’s face it, this is the best case, and the worst case, to test the question of capital punishment, though that question really isn’t in Ullmann’s hands.  He can do his best Darrow impression, and yet the decision will be left to jurors to decide whether they, on behalf of the state, will give Hayes better than he gave.

Each day, there is a television image of the one survivor, Dr. William Petit.  The crimes committed against him pale compared to what happened to his wife, Jennifer Hawke-Petit and their daughters, Hayley Petit, 17 years old, and Michaela Petit, 11.  He survived the night.

Petit has become the focus of intense media attention, and he’s used that to huge advantage.  Complaints are heard that he’s doing everything in his power, plus some, to skew the outcome, manipulate the media and control the discussion. 

If this had happened to your family, would you do less?  If this had happened to your family, might you hope that the killers were given the ultimate punishment? 

We can believe, as most criminal defense lawyers do, that capital punishment is wrong and shouldn’t be imposed on anyone.  That belief is generic, disconnected from the facts of any individual case and based on our broader view of the system of justice, the validity of convictions, the merit of execution as a punishment and our view of humanity.  Fair enough.  I am against capital punishment.

But I cannot, and I will not, find fault with William Petit.

William Petit has suffered.  If he’s half a man, he suffers more for what happened to his family than himself.  If he’s a quarter of a man, he suffers unbearably for what happened to his daughters.  I would take a bullet for my children without a moment’s hesitation, and I project my sensibilities on  Petit.  He is entitled to use, say, do anything, absolutely anything, to do now what he was unable to do then, to save his family.

This isn’t to suggest that Steven Hayes or Joshua Komisarjevsky should be sentenced to execution.  Maybe there’s something good to be said about them.  Maybe not.  Either way, they will be sentenced to death, it being only a matter of how quickly.  Neither one will be walking out of prison alive.

That’s where I stand.  I hope that’s where the jury stands when all is said and done, making the decision that they, and we, are better than to impose capital punishment, whether or not Hayes and Komisarjevsky deserve their mercy.  But William Petit does not have to see it the same way, and he can do anything he wants to do to prejudice the jury, the public, his deity, against these two human being.

Unless and until you can know what it’s like to be William Petit, you cannot criticize him for doing anything.  Don’t call him a publicity hound or a media whore.  Don’t question his motives or challenge his methods.  Scrutinize everything about this case and the issues surrounding capital punishment all day long, but William Petit gets a pass.

No matter how unseemly you may find William Petit’s conduct, leave him alone. Anyone who has endured what happened to his wife and daughters can do anything he damn well pleases when it comes to the killers. Leave William Petit alone.

With the vote on California’s Prop 19 inching ever closer, the enforcement plot thickens.  Not surprisingly, Attorney General Eric Holder plans to step up enforcement of federal law against potheads to fill the gap.  After all, with an arch-liberal in the White House, what better way to maintain order than use the federal courts to handle the dime bag dealers.  Federal judges will be thrilled. 

But then, marijuana remains a Schedule 1 substance and a federal crime.  If they don’t like it, the time to argue was when Congress decided to play jurisdictional games with drug laws, assuming the federal courts would be the backstop rather than the catcher.  The idea of having Magistrates doing nightcourt to handle the volume of pot smokers streaming into federal court is, frankly, kinda funny.  They’re going to need bigger arraignment courtrooms.

But as Radley Balko notes, Los Angeles County Sheriff Lee Baca says that he’s going to continue to bust pot smokers too.  The thrust of Radley’s complaint is that Sheriff Baca, should he pursue this course, would be violating the law of California, as determined by its citizens through popular vote, in direct violation of his duty to uphold the law.

It’ll be fascinating to see how this plays out in the courts. Would a California state judge hold Baca liable for deliberately and knowingly breaking California state law? Would Holder’s Justice Department defend him? Let’s say a sheriff like Baca arrests a Californian for an act that’s a violation of federal law, but legal under state law. Seems possible that with the right DA, someone like Baca could be convicted in state court for civil rights violations (or whatever it’s called under California law), while the arrestee could still be convicted for violating federal law. Then, maybe Baca protects himself by always bringing a federal agent along to perform the actual arrest.

The mechanics needed to authorize Baca’s deputies have long been in use.  The feds need only cross-designate the locals, as has long been the case with joint task forces, to enforce federal law.  The defendant will be brought to the federal courthouse rather than the state one, but the law enforcement officers will not be violating California law.  There is no Cali law prohibiting them from arresting for marijuana under valid federal law.

As for the implications of a local official refusing to heed the will of the people, that’s another story.  To the extent malum prohibitum crimes find their moral justification in the social compact, the decision to adhere to the wrongs decided by society even if they aren’t inherent evils, Sheriff Baca has a problem.  Bear in mind that the use of intoxicants, even drugs, wasn’t always a crime.  Indeed, most were over-the-counter cure-alls in their better days, and at minimum good for Victorian parties.  It wasn’t until much later that we decided to put them in the evil category.

Whether Prop 19 passes has yet to be seen, but the whole proposition concept of California is at stake when the guy with a gun decides that he’ll enforce laws in whatever fashion he likes, and ignore the public will as he chooses.  If Sheriff Baca is allowed to do so, then why not everyone else in government?  And if everyone else in government can do so, certainly the people, from whom all authority derives, can do so as well.  There’s no conceptual end to the problem once we decide that laws don’t count.

Regardless of how this plays out, however, Sheriff Baca’s announced position that he will continue to use his authority, not to mention weapons, in the fashion he thinks best already undermines the authority vested in him.  There are plenty of crimes that harm no one, and only give rise to punishment because a bunch of people in suits say so.  Ripping away the claim that there’s meaning to law simply because it is law, as Baca does here, exposes his authority as a sham.  Take something relatively innocuous, like overly tinted windows, and explain to a person he should suffer a penalty when the Sheriff can announce that the law doesn’t matter to him? 

Despite Baca’s bravado, it seems unlikely that federal judges will welcome his arrestees into their house.  They already hate how federal criminal law has turned them into local town justices, deluged with big numbers of defendants alleged to have committed inconsequential crimes.  This isn’t what they signed up for.  They do not want to deal with parking tickets.  Or pot smokers.  Sheriff Baca may have big plans for saving Californians from themselves, but he may find that the rest of he system isn’t as impressed with his efforts as he is.

In the meantime, let’s see how comfortable state judges in Los Angeles County feel as they give morality talks to defendants about the majesty of the law, knowing that Sheriff Baca is the poster boy for laws meaning nothing.

Via Doug Berman, the Los Angeles Times has a story about the Second Chance Women’s Re-entry Court,

Although women make up only a small fraction of prison inmates, their numbers have been climbing for decades at a far steeper rate than men’s.  Women are also more likely to be convicted of nonviolent drug or property crimes motivated by addictions or necessity….

Based on what he sees in the report and what the women have to say, Tynan doles out sanctions or incentives such as a month back in jail, an order to write a 1,000-word essay or permission to go on an out-of-town trip….

“A lot of them have been really, really beleaguered and beaten up, primarily by the men in their lives,” Tynan says.  His court, he adds, “is just a sliver of what’s needed.”…

A sliver indeed.  Does this mean that men are evil and women, well, not so evil?  Does this mean that men deserve the real criminal court and women get a second chance?  Is the “weaker sex” back in fashion?

Speciality courts are in vogue as a means of sidestepping the harsh tough on crime attitude by creating a more sympathetic path for those arrested under the “smart on crime” banner.  The only downside, which doesn’t seem problematic to either judges or the public, is that the defendants in specialty courts either waive all rights and lie down spread eagle before the court, or go elsewhere.  There’s no tolerance for innocence, or constitutional violations, or any of the host of issues that otherwise arise in real courts.  These are places where the guilty go to get a break.  All they have to give up is their rights.

But this time the differential isn’t the nature of what drives a defendant to commit crime, or the nature of the crime committed, but their gender.  Girl court.  Girls are soft and cuddly.  Girls can’t withstand the pressure of bad boys.  Girls are different. Girls deserve a second chance.

Men are evil animals.  Blame men. Punish men. Men are bad.

Not what they’re trying to say?  Sure, but that’s precisely what they’re saying.  When there’s a special court for women, it by definition precludes men.  Some women deserve a break, having been manipulated and pressured into committing crimes, or having done so to feed their children.  So do some men.  But there’s no court for that.

What this perversely reflects is the inability of the criminal justice system to lose the rhetoric of blame and give every case the degree of individualized thought it deserves.  There’s no reason why a woman before a criminal court shouldn’t be given the depth of scrutiny necessary to determine whether she’s an evil, malevolent person, but rather a victim of circumstance who is undeserving the typical harshness our system metes out.  There’s no reason every person who comes before a court shouldn’t receive that.

Is it more true of women than men that they are less evil, less deserving of punishment, more worthy of a second chance?  Perhaps, but it’s not a numbers game.  Every defendant serves his or her own sentence.  Every child with a parent in prison suffers, regardless of whether it’s his mother or father. 

By establishing courts that cater to a “specialty”, the system relinquishes some degree of its obligation to be fair to all.  If a defendant suffers from drug addiction, should he be denied treatment because he refused the chance to go to drug court?  What if the defendant has a defense as well as an addiction?  What if the evidence was unconstitutionally seized and he has a drug addiction?  Why does the system only offer useful sentences when the defendant gives something away?

Gender based courts, however, take this problem in an entirely new direction, given that the junk in the trunk isn’t a matter of bad choices or unfortunate circumstances, but nature.  It seems a facial equal protection problem, on top of a poor policy choice.  So the man manipulated into committing a crime by a woman is screwed?  Are we prepared to categorically state that only women are manipulated by men, and never the other way around?

Most importantly, however, is the idea that a court only for women somehow fulfills the responsibility of the criminal justice system to be “smarter” or more fair.  Every defendant deserves fairness.  And the public should expect every court to be smart.  Give women a second chance when appropriate.  Do the same for men as well.

Inexplicably, whenever the newest, shiniest hi-tech toy is announced, nobody seems to mention one itty, bitty detail in its programming.  That is complies with the 1994 Communications Assistance to Law Enforcement Act.  You remember, the law that requires communications providers to make sure that whatever they come out with can be easily intercepted by the government.  For your own protection, of course.

It appears that our communications giants, unfortunately, have not always been wonderful citizens of the nation.  With the competition for newiest, cooliest, shiniest toys, they big boys haven’t paid as much attention to the FBI as they have to Steve Jobs.  Want to bet that Jobs has a red telephone on his desk on his belt clip direct to Washington? 

From the New York Times :

The officials say tougher legislation is needed because some telecommunications companies in recent years have begun new services and made system upgrades that create technical obstacles to surveillance. They want to increase legal incentives and penalties aimed at pushing carriers like Verizon, AT&T, and Comcast to ensure that any network changes will not disrupt their ability to conduct wiretaps.

It’s almost as if they’re a part of a vast criminal conspiracy designed to prevent the government from saving us from the bad guys.  They must be punished.

Albert Gidari Jr., a lawyer who represents telecommunications firms, said corporations were likely to object to increased government intervention in the design or launch of services. Such a change, he said, could have major repercussions for industry innovation, costs and competitiveness.

“The government’s answer is ‘don’t deploy the new services — wait until the government catches up,’ ” Mr. Gidari said. “But that’s not how it works. Too many services develop too quickly, and there are just too many players in this now.”

What we have here are cross purposes.  Communications companies need to come out with something new every four months to keep us from falling asleep, while the government needs them to slow it down while they figure out how to collect every garbled word that crosses the digital divide. 

The users of these shiny new toys, of course, neither consider nor care about the government’s concern.  The chances of our being blown up by terrorists aren’t nearly as great as being viewed as Luddites by our comrades.  What?  Is that last month’s 3G phone you’re using?  Hah, you dinosaur.

The push to expand the 1994 law is the latest example of a dilemma over how to balance Internet freedom with security needs in an era of rapidly evolving — and globalized — technology. The issue has added importance because the surveillance technologies developed by the United States to hunt for terrorists and drug traffickers can be also used by repressive regimes to hunt for political dissidents.

There is nothing involved in this problem that demonstrates a concern for internet freedom.  The point of this law is that advancement of technology not outpace the ability of the government to hear our every word at will.  The concept of privacy has long been abandoned, both by the government’s doing as well as our own.  The need to intercept our emails is relative to the government’s taking a quick look at our Facebook page, where we spell out in ugly detail all the nasty things we’re doing so that we can share with our friends.

Twitter, of course, is an open book to begin with.  It’s brought voyeurism to a new depth, listening in on conversations between people you don’t know discussing whatever insipid thing they feel is crucial to be shared.  No need to worry about intercepts here; we’ve given it up on a platter.

But to the extent that there remains any impediments to the government’s immediate access, it’s unacceptable.

Under current law, if a carrier meets the industry-set standard for compliance — providing the content of a call or e-mail, along with identifying information like its recipient, time and location — it achieves “safe harbor” and cannot be fined. If the company fails to meet the standard, it can be fined by a judge or the Federal Communication Commission.

In those rare instances where we haven’t offered up our deepest thoughts to the government willingly, there’s a law to make sure that they always have their ear to the door.  As we move forward to the next shiny toy, the next technological marvel, the next game-changer, the primary concern of the United States government is that there remains a special button for them on our touch screen.  You won’t see it, but it’s there.

Years ago, the Supreme Court in Katz v. United States , the Supreme Court held that the predicate for the assertion of Fourth Amendment rights was that we had a “reasonable expectation of privacy.”  If that expectation is tested by the technological prowess to intercept our every online communication, then it is not only unreasonable but absurd. 

Enjoy your Droid.  Enjoy your iPhone.  For you old-timers, enjoy your Blackberry.  And don’t worry about the government intercepting your communications.  They would never intercept our communications.  They are only interested in the bad guys, and we’re certainly not the bad guys.  Nosireebob.  Nothing to fear here.