Tuesday, June 26, 2018

Execution Watch: 6/27/2018

On Wednesday night the State of Texas will kill again...

DANNY BIBLE. Convicted and sentenced to death in the ice-pick slaying of a Houston woman in 1979. The crime went unsolved for 20 years. Bible’s appellate attorneys argued that Bible’s execution would serve no purpose, since he is no longer a threat to society. He is suffering from Parkinson’s and is confined to a wheelchair. A prison van taking him to death row in 2003 crashed, disabling him, killing a corrections officer and killing the driver of another vehicle. If Bible is granted a stay, the show will be happily canceled.



Unless a stay is issued, Execution Watch will broadcast live:
Wednesday, June 27, 6-7 PM Central Time
KPFT-FM Houston 90.1, HD 3 or online at:

Sunday, June 24, 2018

Some light reading for a Sunday morning

Here are a few non-law related articles I've come across recently that I found quite interesting...

First, you've heard at least one of your relatives, classmates or co-workers comment that all Asian people look alike. If we take a look at how well people can identify folks of different races or ethnic groups, there is more than a little truth in the statement. We know, for instance, that a white witness is less likely to pick the differences out among a lineup of black or Latino males than a bunch of white guys.

In  preparing for their World Cup opener, the South Korean team tried an experiment to see just how well white folk (Swedes, for instance) could tell the difference among Korean soccer players by switching numbers in their World Cup warm-up games.

Back when I was in high school, ESPN was still undergoing birthing pains. If you watched the channel's update in the morning to see what was on during the rest of the day you could feel their pain, too. From tractor pulls to Aussie Rules Football to lumberjack contests and everything in between -- except for live sporting events from the NFL, NBA, MLB or NCAA.

Back in the early 80's I was a big boxing fan. ESPN teamed up with the ever-corrupt Top Rank, Inc. (headed by Bob Arum - who only looked honest when sitting next to his main competitor, Don King). They put together a live weekly boxing show called Top Rank Boxing that featured a bunch of up-and-comers and soup cans. One of the most popular fighters was a New Jersey middleweight names Bobby Czyz. His career didn't quite work out as expected. Here is the story of how boxing chews up and spits out fighters.

I'm no Aggie, but I'll be one of the first to admit that Johnny Football was one hell of a college quarterback. I still remember sitting on my brother's sofa that Saturday afternoon when A&M dealt a beatdown to Alabama in Tuscaloosa. Damn, could that kid ball.

Unfortunately, being coddled all his life because of his talent didn't do Johnny Manziel any favors in the maturity department. His career in the NFL never got off the ground because he couldn't stay out of trouble - and without a silver-haired coach or big money boosters to shield him, his foibles played out on ESPN and TMZ on a regular basis. I think his decision to leave college early was one of the worst decisions he could have made -- he needed some more time to mature before going off on his own.

Johnny Football hit rock bottom and now he's trying to climb out of the hole he dug one step at a time. Here's a look at his most recent comeback. And, just as I wanted Vince Young to return to the big stage, I hope Johnny makes a return one day. Kids with that much talent deserve a shot.

Friday, June 22, 2018

Changing times, changing minds

On Thursday, the US Supreme Court handed down its long-awaited decision in the Wayfair case. In its opinion, the Court held that the physical presence rule instituted under National Bellas Hess in 1967 and affirmed in Quill in 1992 was out of date and was no longer to be used to determine whether a company had sufficient minimum contacts with a state. The ruling will allow states to require online companies with no physical presence in the state to collect and remit sales tax revenue from customers.

But what, you ask, does that have to do with criminal law or anything else discussed on this blog? The answer is the substance of the case has absolutely nothing to do with anything covered in this space. What is interesting, however, is that a fairly long-standing precedent was overturned by a 5-4 vote with two justices voting to overturn the precedent they had previously voted to retain.

I think when we think of the US Supreme Court we envisage nine wise folk wearing black robes and issuing proclamations about the law with all weight of a papal bull. But that's not how it works.

In law school we have the concept of stare decisis pounded into our brains at every turn. The practice of law is really the practice of finding precedent to support your position and fitting the facts into a framework laid out by the court. The court's role is to make its ruling as narrow as possible so as to fit the new ruling into the patchwork of precedent.

What we generally see in a case is a slight shift in the application of the law justified by some little fact that makes this particular case different than the cases that came before it. That way precedent is honored and narrow exceptions are made.

But in Wayfair two judges changed their minds. It wasn't that the fact patterns were different. Unlike many opinions in which the court makes an exception to existing precedent, the opinion didn't get into the game of distinguishing fact patterns and why this one particular fact, or facts, made the difference. Instead the opinion spoke of changed times and changed minds.

Thus the edicts passed down from the Supreme Court aren't infallible and they aren't written in stone. They are subject to change. The minds of the justices are subject to change. And what the law is and isn't might hinge on the shifting sands of one justice's mind.

And if you don't like the rulings a particular justice makes, rest assured, one day he or she will not be sitting up behind the desk wearing a black robe. Someone else, someone with a different opinion, may be sitting up there in his or her stead. The makeup of the court will change as will its reputation.

Maybe there is still some hope out there for the Fourth Amendment.

Wednesday, June 20, 2018

Protecting the kids, Georgia style

This past week the Georgia Supreme Court did itself proud as it declared that being placed on a child abuse registry without notice isn't a punitive measure, that it doesn't deprive anyone of a liberty interest and that due process just doesn't apply when we're doing something to protect the kids.

Georgia maintains a child abuse registry and limits access to government agencies, law enforcement and childcare facilities. The general public does not have access to the database.

One can be placed on the registry if an investigator with the Georgia Department of Human Services, Division of Family and Children Services (DFCS) substantiates an allegation. To substantiate an allegation, the allegation must be confirmed by a preponderance of the evidence. The abuse investigator then files a report and the person's name is added to the registry. The person then receives a notice from the state and has 10 days to appeal the decision before an administrative law judge.

Now I will concede that being placed on the Georgia child abuse registry isn't the same as being placed on a sex offenders' registry since the database isn't available to the general public, but, it's never a good thing to have your name added to any list the government is compiling for allegedly doing something wrong.

And the Georgia Supreme Court showed how out of touch with reality they are when they decided that being placed on such a registry doesn't deprive an individual of a liberty interest. The court wasn't concerned with anyone being defamed by the state nor were they concerned with any possible legal consequences down the road. If you can't show that you have been affected negatively by being added to the registry, then too bad.

But the bigger issue here is the process by which it happens. The state doesn't have to notify an individual that they are being added to the registry - the state just has to provide notice after the fact. The person being added to the list isn't entitled to cross-examine the accuser nor to put on an evidence before being added to the registry. He only has the right to appeal the decision after his name has been added.

Now it's time for you to decide if this notice is sufficient to inform a person of what they are accused of or if it's just a vague piece of mumbo-jumbo.
You were substantiated on as a result of K.S. maltreator exposed the child to inappropriate sexual contact which resulted in the maltreator inappropriately touched and dry humped her in the residence of the legal guardian.
The Georgia Supreme Court found that this constituted sufficient notice. It is grammatically incorrect and the sentence (if you can call it that) borders on incomprehensible.

It's much easier to win a trial as defendant than it is to win on appeal. At trial every presumption is supposed to go to the defendant (of course we know that is often just a fiction we tell ourselves), on appeal every presumption goes to the side that won at trial.

In the case of the Georgia child abuse registry, all it takes to find your name on it is for an investigator to find the alleged victim has moved the ball past the 50-yard line -- without the other side being heard. In addition, in the scenario at hand, we have an investigator (a member of the executive branch) being tasked with making what would appear to be a judicial decision by determining whether or not the allegation was "proven" by a preponderance of the evidence.

But the Georgia Supreme Court wasn't having any of that. They decided that administrative agencies can make quasi-judicial decisions in the course of implementing the law. The court said the use of the term "preponderance of the evidence" didn't make the investigator's job a judicial function because those words just give guidance to the department.

Most troubling, though, was the court's finding that not providing notice before being added to the registry doesn't violate a person's right to due process. The court decided that since there is a procedure in place for a person to appeal the decision that sending a letter with a vague description of what the person was accused of is sufficient to pass muster with the 14th Amendment.

This decision shows just how far a court is willing to go "to protect the kids."

h/t Andrew Fleishman

Monday, June 18, 2018

The problem with proving the unknown

In an article for The Intercept last week, Jordan Smith hit upon the ultimate problem with prosecutorial misconduct -- proving it is damn near impossible with imperfect information.

Prosecutors have an ethical duty to see that justice is done, not to win convictions at trial. Prosecutors also have a legal duty to hand over any exculpatory evidence to the defense. The problem with Brady material is that the state has it and the defense doesn't. And given the imperfect information defense attorneys deal with in preparing for trial, if you don't know about it (or have an inkling about it), it may as well not exist.
When it was his turn to speak, [Shannon] Edmonds applauded [Stacey] Soule’s findings. “Having information like this is great,” he told the committee, in part because when it comes to prosecutorial misconduct (and ineffective assistance), there is often “more heat than light.” A lot of people “bang the tables about these problems and claim they are epidemic. And those claims don’t always hold up to scrutiny.” If you search online for “prosecutorial misconduct,” he said, you’ll find a lot of complaints and “supposed data that is rarely independently scrutinized” the way Soule had done.
As Ms. Smith points out in her article, the problem with using an analysis of Court of Criminal Appeals opinions as the basis for your thesis is that most instances of prosectutorial misconduct don't make it up the chain for a variety of reasons.

The first, and most important, is that some 95% of criminal cases end in plea deals in which the defendant waives his right to appeal in exchange for the promised sentence. In most counties in Texas, at the time of the plea, the defense attorney and the client are both required to sign a document indicating that they received all the discovery they were entitled to and and that the state is under no further obligation to provide discovery material on that case in the future.

While defense attorneys have access to the state's file in criminal prosecutions in Harris County, we have no way of knowing what's not in the file. In some cases potentially exculpatory evidence is "covered" under the work product privilege. In others, it's simply not disclosed because the prosecutor doesn't deem it to be exculpatory.

In general, once the light has been shown on a systemic issue - either by the press or at trial - that information is conveyed to defense attorneys who are advised to contact their clients and proceed as they choose.

The problem is, the state knew about the issue while the case was pending but chose to say nothing and to disclose nothing so they didn't lose their edge.

Ultimately the only way to bring these matters to light may be taking every case to trial and shining a light on the ways in which prosecutors, police and crime labs gather and process evidence. But that "solution" is certainly a non-starter because many defendants don't want to chance a longer or more severe sentence at trial. Some defendants decide to plead because the financial burden of fighting a case is too much for them. Some give up the ghost because the state has allowed courts to pile so many pre-trial bond conditions on them that they'd rather get credit for it by pleading to probation.

If there is no one in the forest, does the falling tree make a sound? Likewise, has the law been violated if the state chooses not to disclose exculpatory evidence when no one else knows its exists? On the one hand, the answer is clearly yes. But, on the other hand, if you can't prove it existed what are you going to do about it?

Wednesday, June 13, 2018

Harris County Chief Public Defender under fire

Alex Brunin is the Chief Public Defender for Harris County. His clientele consists of those who haven't the money to hire an attorney to defend themselves in criminal court.

He is now being accused by Steve Radack, a Harris County Commissioner, of leaking confidential records to attorneys fighting the county on the way bonds are set for defendants. Prior to Federal District Judge Lee Rosenthal's finding that both the misdemeanor and felony bond schedules were unconstitutional as they did not take into account a defendant's ability to pay, a magistrate would ask the prosecutor what the defendant was charged with, whether there were any enhancements and whether the defendant had a prior record. Based on the answers to the those questions, the magistrate traced his or her finger on a chart and set the defendant's bond.

The result was that almost three-quarters of the people held in the Harris County Jail on any given day hadn't been convicted and were awaiting resolution of their cases. That is a mind-blowing number. And totally fucked up.

As head of the Public Defender's Office, Alex Bunin finds himself caught between a rock and a hard place. The office is funded by a grant. And, as I know I've written before, once that grant money starts to run out the case loads for everyone in the office will rise as will the pressure to plead out defendants. Mr. Bunin knows he will get no favors from Commissioner's Court. He's a thorn in the side of those who want to return to the days of the plea mill.

His position depends upon the whims of politicians from outside the Houston city limits - in other words, politicians who represent wealthy white suburbanites who want nothing to do with guaranteeing the constitutional rights of those accused of crime. Mr. Bunin has little or no political capital as indigent defendants don't have a voice in Harris County politics.

Make no mistake about it, this isn't about whether or not Mr. Bunin passed on information, confidential or otherwise, to attorneys fighting about the Harris County bond schedule, this is about a man who is doing his best to give voice to those who don't have one. That, in a nutshell, is Alex Bunin's sin. He dared to provide a vigorous defense for those who had nothing.

Thus far Harris County has spent in the neighborhood of $6 million fighting to preserve a bail system that a conservative federal judge and the most conservative appellate court have found to be unconstitutional. And yet the county continues to fight to preserve a system that led to coerced mass pleas.

Two judges, Mike Fields and Darrell Jordan, have urged the county to drop the fight and to work on finding a solution. Thus far their words have fallen on deaf ears.

But now Mr. Radack has a scapegoat. Instead of defending the money spent on defending the indefensible, he can hold Alex Bunin up to the conservative mates and blame him for the lawsuit and the changes to the bail system. But there's even more to it.

If Mr. Radack and his cabal can get rid of Alex Bunin they can replace him with someone who isn't as committed to defending the indigent. He can install someone who is more interested in the appearance of "fairness" than in actual reform. He can install someone who will be more than happy to carry his water bucket, increase case loads and pressure his staff to plead more cases out.

After a testy meeting yesterday, Mr. Bunin wasn't fired, but the matter was referred to the county public defender board for further recommendation. As was to be expected, the county commissioners who represented mostly white suburbanites were most critical of Mr. Bunin's actions.

And that's what this is ultimately all about -- a return to the days when court-appointed attorneys were more than happy to team up with the judge and prosecutor to work cases out without much effort or cost.

Monday, June 11, 2018

Removing the mask

For years libertarians have described their philosophy in terms of allowing people to do as they wish so long as they don't infringe upon the rights of others to do the same. The less public face of their movement was to allow businesses to operate with as little government intervention as possible in order to maximize their profits.

So, while the one hand called for the freedom of individuals to have sex with whomever they wanted, to do recreational drugs in their homes and to be left alone by the nosy neighbors, the other hand called for an end to unionization, worker safety, environmental protection and the minimum wage. But, surprisingly enough, no one raised their voice about the price of a product reflecting its true cost.

Let me explain, gasoline is sold fairly cheaply compared to what it really costs society (but believe me, I'm none too happy to see that price edging upward whenever I have to fill up the tank). The price we pay at the pump doesn't take into account the cost of operating military bases in other countries in order to ensure the oil flows from the ground into tankers and into US ports. The price doesn't include the damage to the environment caused by extractive industry.

The libertarians aren't losing any sleep over this failure of the market. They don't care about the environmental damage because "the environment" isn't private property; therefore it's free to pollute to your heart's extent. Think of Adam Smith and the tragedy of the commons. And the libertarians are more than happy to use your tax dollars to fund the military occupation of other countries so long as it means the flow of oil continues uninterrupted.

Libertarians have always puffed their chests out proudly with their veneration and love for "the market." They have long preached the gospel of the unfettered market. Throw anything up against the wall - be it a good, a service, an idea - and the marketplace will sort it out and determine which goods, services and ideas are winners and which are losers. The idea was that the more stuff you put out there, the more options everyone had to choose from.

But now, as racism has become more acceptable with Donald Trump in the White House, the true face of libertarianism is making itself seen. Michelle Ray, who goes by the handle @GaltsGirl (an Ayn Rand reference for those of y'all not familiar with libertarian deities), thinks private businesses should be free to discriminate on the basis of race, sex, sexual orientation, religion or whatever other criteria they wish to use.

Don't look at me. I think a privately owned business should be able to discriminate for any reason at all. And then to deal with the market reaction to such discrimination.

I don't think I'm going out on a limb when I say that I doubt Ms. Ray spent her formative years in the American South in the 1950's and 60's. I'm also going to guess that Ms. Ray is white - again, not too much of a leap. According to Ms. Ray's philosophy, segregated schools, housing, restaurants, bus lines, trains, water fountains and restrooms are fine. If folks aren't happy with such discrimination, they are free to take their business elsewhere. Does she not understand history? Does she not understand that racial discrimination existed because the majority of (white) people were in favor of it?

So, in conclusion, I'd like to thank Ms. Ray -- and all those folks who liked her post - for speaking up and showing the world what libertarianism is really all about.

Saturday, June 9, 2018

Goodbye, Anthony

Reading about the death of Anthony Bourdain yesterday made me sad. I remember when his show No Reservations came out. It was a fascinating mix of food and culture. I could not get enough of it.

Back in December 2008 I wrote a short blog piece about how every little piece of knowledge you acquire makes you realize there is so much more to know. That piece was inspired by a quote from Bourdain's show about his trip up Macchu Pichu.

There are some things that have changed since that piece was published and there are some things I would change if I were to write it again. But, this article is one of the first things I thought about when I heard that he had died.

If you are suffering from depression, please don't be afraid to talk to someone about it. Your friends are your friends regardless. If you know someone who suffers from depression, reach out to them. Let them know you're there. The world is a better place when we look out for each other.

This is for you, Anthony. May we continue to realize how little we know about the universe in which we live...

The More I Know, The Less I Know

The other night I was watching Anthony Bourdain trekking through Peru and he made a comment (I'm sorry but I don't know who said it first) that the more he learned, the less he knew.  

At first it sounded quite paradoxical, but then, as I thought about it, it began to make sense.  When we are born we know nothing, our world is the six inches in front of us; but, as we absorb all that we come into contact with, our world expands.  

As a child we are the center of our own universes.  Everything outside is a mere abstraction.  But the more knowledge we absorb the more we come to understand that we are but a small piece in a much larger mosaic.

The same dynamic continues as we move into adulthood.  Seven years ago my (now)wife and I spent the holidays backpacking through Spain.  In those two-and-a-half weeks I learned a lot about Spain, her traditions and her history, but I also learned a lot about myself, my relationship with my wife and my country.  Things kind of fell into perspective as I sat in a church that was built before the pilgrims landed in the Americas for midnight mass.

As a criminal defense attorney I find the more I learn about DWI law, the breath test machine, police coordination tests, jury selection and closing argument, the less I know.  Every new door I open up reveals another.

Strive to know less.

Friday, June 8, 2018

Let the beatings continue

For those of y'all who live in Donald Trump's fantasy world, this is the reality of why Colin Kaepernick took a knee during the playing of the national anthem.

This is the reason that organizations such as Black Lives Matter exist.

This is the reality that people of color find themselves in in this country.

This is what those promoting the inherently racist line of Blue Lives Matter would like you to forget.

What was this man's crime, you ask? The police were called to an apartment complex in Phoenix on a domestic violence call. The man in the video had nothing to do with the alleged incident. Even though he wasn't involved in the incident, he cooperated with the police. He leaned against a wall. He allowed officers to frisk him. He answered questions. But when he was asked to sit against the far wall and he just squatted, that's when the police had enough and assaulted him.

If you think this same shit doesn't occur all over this country then you are either blind, ignorant or a racist.

So the next time you hear Donald Trump, or some other windbag, throw shade on black athletes who protest peacefully during the playing of the national anthem, just remember this video.

And one other little thing, instead of being arrested and charged with assault, the officers involved are on a paid vacation.

h/t Stefania Okolie

Thursday, June 7, 2018

Update: Mob rule

The mob in Santa Clara County spoke loud and clear on Tuesday when they voted to recall Judge Aaron Persky because they thought the sentence he handed out to Stanford swimmer Brock Turner was too light.

There was little discussion about the hundreds of other sentences Judge Persky handed down. There was no discussion about over-incarceration. There was precious little talk about the dangers of limiting judicial discretion in sentencing.

In short, the mob voted to throw out a judge because they disagreed with one sentence he handed down to a college student accused of sexual assault.

Now what happens when a case comes before the new judge, Assistant District Attorney Cindy Hendrickson, where the choice is a sentence tailored to fit the circumstances or prison time? And what happens when one of the mob's sons or daughters is brought before the court and has to face the music? How happy will mom and dad be when the judge gives in to the mob and sends their baby to prison instead of placing them on probation?

The mob got caught up in one person's vendetta. They may have wanted to send a message that sexual assault is a serious offense but what they've done is tell every judge on the bench to be damn careful before giving anyone a second chance.

One thing is clear, however, judicial discretion is a thing of the past in Santa Clara County.

Wednesday, June 6, 2018

Narrowly missing the point

  1. 1.
    (especially of something that is considerably longer or higher than it is wide) of small width.
    "he made his way down the narrow road"
    synonyms:small, tapered, tapering, narrowing; More
  2. 2.
    limited in extent, amount, or scope; restricted.
    "his ability to get good results within narrow constraints of money and manpower"
    synonyms:limitedrestricted, circumscribed, smallinadequateinsufficientdeficient
    "a narrow range of products"

Who knew that the word narrowly was so difficult to understand?

On Monday the US Supreme Court issued its ruling in the Masterpiece case -- otherwise known as the dude who refused to make a wedding cake for a gay couple case. In a 7-2 decision, the Court decided to punt the case down the road rather than deciding the case on its merits.

The media reported that the case was "narrowly" decided. Of course those who supported Jack Phillips' decision not to bake a cake for the gay wedding questioned how a 7-2 decision could be considered narrow. I would suspect that John Cornyn and Ted Cruz knew what "narrowly" deciding a case meant while they were sending out tweets in support of the decision claiming a victory for religion.

And, as an aside, if there was any doubt among y'all that the Republican Party stands for bigotry, hatred and discrimination, look no further than the officeholders who tweeted out about the decision and the words they used.

Anyone who paid attention in government class knows that the Supreme Court will always look to craft their opinion in a case as narrowly as possible since it is up to Congress to pass bills and the President to sign them into law. The purpose of judicial review (at least according to John Marshall) is to determine whether the application of a law is constitutional. The only time the Court strikes down a law itself as being unconstitutional is if there is no application of the law that can pass scrutiny.

This is the reason why lawyers will spend hours researching case law to find ways to distinguish the fact pattern in their case from existing precedent. If you can distinguish your case enough from those already decided by the court, you might just get the result you're looking for. And, in the same vein, it's why the lawyers on the other side will look for ways to pigeonhole the fact pattern in the case to an existing decision. As Tony D'Amato told his football team in Any Given Sunday, it's a game of inches.

In Masterpiece, the Court did not strike down the Colorado law Mr. Phillips was challenging. That would have been a broad decision - regardless of which way the Court leaned. In order to avoid having to make that decision, the Court looked at the application of the law in question and decided that the manner in which the hearing was held violated Mr. Phillips' right to freedom of religion (or, as I prefer, his right to use religion as a justification for discriminating against a group of people).

The Court wasn't happy that the commission who decided that Mr. Phillips violated the law seemed to be a bit hostile to his religious beliefs. Now, call me crazy, but if you're going to use religion as your defense to a claim that you discriminated against a couple because they were gay, then I think your religious beliefs are fair game in a hearing.

The funniest part of the right's celebrating the Court's ruling is that what the Court really did was instruct Colorado on the proper way to enforce their anti-discrimination statute. Let's think about this for a minute. The Court didn't declare the statute unconstitutional. The Court didn't say that forcing the baker to bake a cake for the gay couple infringed upon his religious beliefs. What the Court said was that the commission needed to conduct the hearing in a religion-neutral tone.

In other words, the next time the commission has to conduct such a hearing, the commission should let the baker give his reason for refusing to bake the cake. Then, instead of launching off into a speech as to how religion has long been used to justify racism, hatred, discrimination and violence, the commission should just ask him whether or not there was any other reason for him to refuse to bake the cake other than his belief that homosexuality was a sin.

If he were to say no, the commission could then vote and issue a ruling that he violated the statute in refusing to bake the cake. Based on Monday's decision, that would be upheld.

Of course the most amusing part of the opinion was Justice Gorsuch losing the plot and trying to explain what was a wedding cake and what wasn't and why it mattered.

Tuesday, June 5, 2018

Who wants an independent judiciary anyway?

Today is judgment day for Judge Aaron Persky who gained renown when he sentenced Stanford swimmer Brock Turner to six months in jail and probation for sexually assaulting an unconscious woman.

The recall effort is led by Stanford law professor Michele Dauber, who is a sociologist, not a lawyer (though she does have a law degree). Ms. Dauber is also a friend of the victim's family.

She was up in arms because she thought the sentence meted out to Mr. Turner wasn't severe enough. She thought it was a slap in the face of the victim in this matter and to other victims of sexual assault.

Maybe the sentence was too lenient. I'm sure that had the case landed on the desk of another judge the sentence may have been different. But Judge Persky made the decision that he thought was correct given the offense, the victim and the defendant.
U.S. Rep. Zoe Lofgren, a liberal Democrat from San Jose, and the bar associations of Santa Clara and San Mateo counties oppose the recall.
In favor are the National Organization for Women and other women’s groups, U.S. Sen. Kirsten Gillibrand (D-N.Y.) and several members of Congress and the state Legislature.

Had Mr. Turner not been a star swimmer at Stanford, maybe he would have been sent to prison and not placed on probation. We'll never know. But it certainly isn't uncommon for a judge to take into consideration the history of the defendant and his future prospects when handing down a sentence.

Maybe he got that sentence because he came from a wealthy family. Maybe that's what he got because his family was able to retain a good lawyer. Maybe he received probation because of the work his lawyer did for him on the case.

But whatever the reason for the sentence, that's what Judge Persky thought was appropriate. And let's face it, different sentences for different folks convicted of the same crime isn't unusual. And it's not necessarily undesirable. Do we really want state versions of the Federal Sentencing Guidelines? I don't think so.

The guidelines were implemented because of disparate sentencing across federal districts. This was, of course, back in the day when judges were allowed to use their discretion in crafting a sentence. A bunch of people complained and now it's like those fucking matrices we learned (and just as quickly forgot) back in Algebra II.

Ms. Dauber's crusade is one reason we don't allow the victims of a crime to determine the punishment. We leave that job to prosecutors and judges who, presumably, will use their discretion to make an offer or order a sentence.
Dauber has singled out a handful of cases Persky handled that she said reflected bias in favor of people of privilege.
The anti-recall campaign disputed her version of the cases, noting that one of the defendants was a plumber and that another judge, not Persky, sentenced one of the other defendants.
“To the extent you can find a pattern, for young offenders with no prior record, he did often give them a sentence which gave them a chance … and tried to keep them in school or in a job,” said Santa Clara University law professor Ellen Kreitzberg, one of the anti-recall leaders. “He did it regardless of race or ethnicity.”

We have an incarceration problem in this country. We have far too many people behind bars who have no reason to be there. Whenever a particularly foul or gruesome crime is committed (especially against a child) we name a law after the victim that either stiffens the penalty for the crime, creates a new crime or forbids probation or parole. And, as politicians are more than willing to lick their finger and stick it up to see which way the wind is blowing, laws are passed without anyone thinking about the consequences. Years down the road someone else will have to deal with the mess.

Now, if Ms. Dauber's crusade were to eliminate some of the most disparate sentences and to ensure that poor defendants have as much of a chance to get probation as wealthy defendants, I'd say we should listen to what she has to say. But if her whole goal is to lock up offenders - regardless of the circumstances - and fill the jails then I don't care what she has to say.

The danger in California is that we are going to turn control of the criminal (in)justice system over to the mob. That's what happened up until the 1960's. It was called lynching.

Ms. Dauber's criticism disregards the fact that Mr. Turner will have to register as a sex offender for the rest of his life - long after he has completed his sentence. He will forever have issues with where he can live. He will be under supervision for years - and one screw up could land him in prison. At least with probation he will be receiving counseling and he will be monitored.

Should the recall effort prevail today, judges will no longer have the discretion to do what they think is best on the bench. They will be second guessed by everyone. People like Ms. Dauber will highlight one decision made from the bench and ignore the other hundreds or thousands of decisions that judge has made. And instead of crafting a sentence that is more likely to address the needs of those in front of the bench, judges will be more likely to go for one-size-fits-all solutions.

Monday, June 4, 2018

The problem with a property-based Fourth Amendment analysis

One fine day Ryan Collins went out riding a distinctive orange and black motorcycle. I'm going to assume that the weather was fine and the traffic was fairly light because he was cruising around at speeds approaching 140 mph.

While Mr. Collins may have been having himself quite the ride, the local police were not nearly as thrilled as the reports rolled in of an orange and black motorcycle traveling at a high rate of speed.

Somehow the police discovered that the bike didn't exactly belong to Mr. Collins. Through a little bit of snooping, they discovered the bike in question on a Facebook post. Officers went to Mr. Collins' house and found a tarp covering what appeared to be a bike in the driveway.  Officer Rhodes walked up the drive, lifted the tarp and saw the bike - without first obtaining a search warrant.

Officers then waited and arrested Mr. Collins when he returned. After the trial court denied his motion to suppress the discovery of the bike, Mr. Collins was convicted of receiving stolen property.

Last week the US Supreme Court reversed Mr. Collins' conviction on the grounds that Officer Rhodes violated Mr. Collins' fourth amendment protection against unreasonable search and seizure when he lifted the tarp.

The state had argued that this particular incident fell under the so-called vehicle exception to the fourth amendment and that the police were acting lawfully when lifting the tarp off what appeared to be a bike sitting in the driveway of a residence.

The Supreme Court held that the bike was parked in the curtilage of Mr. Collins' house and was not in plain sight since it was covered by a tarp.

Now, while this case is a victory for fourth amendment advocates and anyone under suspicion by the police, it continues a recent trend of basing fourth amendment protections on the concepts of property law. The curtilage is considered to that area immediately outside a person's house -- it could consist of patios, porches, sidewalks, breezeways and driveways. These are areas that aren't actually part of the house - but they are close enough, in some cases, to be considered as such.

Just because something is on the curtilage, however, doesn't mean the police can't walk up to it and examine it. Had Mr. Collins just parked his bike in the driveway in plain sight of anyone driving or walking by, the result of this case would have been the opposite. What saved Mr. Collins was the fact he tossed a tarp over the bike as it sat in his driveway. That meant the only way the police could determine the bike was stolen was to walk up the driveway and lift the tarp - a trespass as the court decided.

While this property-based determination of what constitutes an unreasonable search is helpful in case involving physical evidence, it is not so helpful when the same analysis is applied to data such as e-mails or web searches or information stored on the Cloud. In those instances there is no physical property, there is no curtilage, there is no trespass. When we start talking about digital data we're talking more about a relationship between a person and a set of binary digits.

And if we're looking at the relationship between a person and some data stored on a server somewhere, we don't have 18th century property law to fall back on. Rather then making fourth amendment jurisprudence all about property law concepts, maybe we need to go back and re-ask the question "what is unreasonable?"