Saturday, June 28, 2008

Bill of Rights on the Table

The U.S. Supreme Court in District of Columbia v. Heller just held a D.C. law banning handguns violative of the Second Amendment to the U.S. Constitution. For the first time the Supreme Court struck down a law prohibiting firearms on Second Amendment grounds. The NRA is celebrating and so should the broader set of civil libertarians. This is not to say that there is anything particularly positive about the surge in handgun purchase and possession that this case will bring about. More guns means more shooting. More shooting means more death and maiming. Deaths and maimings are not generally cause for celebration. Justice Scalia, however, reasoned, essentially, that the clear (and "enshrined") language of the Second Amendment necessarily takes certain policy considerations off the table. In other words, arguing that a law banning handguns furthers a positive policy agenda (because it saves lives) is not going to compel the Supreme Court to ignore the plain language set forth in the Bill of Rights.

So, here's what I take from that: Unreasonable warrantless searches and seizures, coerced confessions, deprivations of procedural protections, inflictions of cruel and unusual punishment, restraints on free speech, interferances with the free exercise of religion, establishing an official religion, and myriad other deprivations of civil liberties by the government cannot, by Scalia's logic, be justified on the ground that they may further a positive policy agenda. In light of Heller I would now suggest a re-examination of the landmark U.S. Supreme Court case of Michigan v. Sitz, in particular. Why? Because the Court all but ignored the plain language of the Fourth Amendment to allow law enforcement to conduct systematic warrantless searches and seizures, in the shape of DUI checkpoints, to promote the positive policy agenda of preventing drunk driving. To argue that checkpoints are "reasonable" in a free society is to ignore a simple distinction: The other acknowledged exceptions to the warrant requirement (exigency, Terry, Leon, reasonable suspicion, etc.) do not deliberately and systematically cause the seizure and search of large swaths of law-abiding people in the name of crime prevention. The choice to allow these warrantless searches is done clearly in the name of a positive policy agenda which, as Scalia, would have it, should be "off the table".

Tuesday, June 24, 2008

Social Host Ordinance

Santa Barbara County is moving forward with an ordinance designed to "crackdown" and "get tough" on underage drinking and binge drinking. Of course the neo-prohibitionists among us see nothing wrong with giving the police more tools to attack the problem; and, indeed, there is little if any social utility produced by people under 18 getting trashed. However, I can't recall ever hearing a police officer say, "you know, I'm just powerless to stop underage drinking". Having been in the the thick of court cases surrounding this topic for many years, I can tell you that the Fourth Amendment plays a minimal role in deterring overly aggressive conduct of law enforcement agents. In Isla Vista, for example, there are many instances of police entering parties where they were not invited, and making arrests, issuing cites, seizing kegs, dumping out bottles of booze, and sending the invited guests on their way. It is plain that social ordinances are desired because they would allow police officers to enter any dwelling where a party is taking place where they reasonably suspect a minor is present without a warrant.

Thursday, June 12, 2008

Avoid Jury Service At Your Own Peril

KEYT just ran a story alerting the public that the Santa Barbara Superior Court has just begun to crack down on people who scoff at jury duty even before they show up. Specifically, the Court is seeking to hold people who have failed to respond to postcards ordering them to call in for jury duty in contempt. The fine, depending on the circumstances, may be as much as $350. This young man, above, was interviewed and was asked what he thinks about this. His answer was that it was "unfair" because "it seems the Government is trying to weasel money out of people". I couldn't disagree more. The Government may, in some circumstances, be trying to weasel money from people, but not here. The Government is trying to get people, all people, to take jury service seriously and to show up and participate. The jury system is, by no means, a for-profit enterprise. It is, in fact, a very costly system which our nation's founders decided was a necessary check on Government power, and boy did they get it right. Even many prosecutors, who are greatly inconvenienced by juries, believe in the current system. Those that are accused of crime and civil litigants of many stripes are often thankful that they have a Constitutionally protected right to have the facts and/or dollar value of their case decided by a jury of their peers rather than by a judge who they may properly believe is in some small way beholden to their more politically powerful opponent.
Long live the jury system!

Tuesday, June 10, 2008

Never Drink (and Drive) and Dial!

Common sense has it that driving with a cell phone pressed to your ear is a dangerous activity. At last Senate Bills 1613 and 33 have arrived. Well, almost. As of July 1, 2008, you MUST either abstain from cell phone use while driving (gasp!) or contribute to the soaring profits of the makers of Bluetooth compatible devices. And, if you are under 18, you must refrain from cell phone use, while driving, altogether. However, driving while working to establish and maintain a link between your Bluetooth device and your cell phone, which is more of a distraction than holding the phone to your ear after pressing the speed dial button, is still legal (if not encouraged) by these new laws. Let's hope that this predictable, "Oops! I forgot to locate and activate my Bluetooth device" sensation (which I have already experienced a number of times while driving), does not result in more accidents. The best idea, of course, is to pull over and figure this out. This remains so in spite of the enduring legality of the act of hunting through your car's center console in order fidget with little buttons while driving.

I will here issue my final warning that this new law is going cause many traffic stops. After all, this is one of the easiest law violations for the police to identify and I predict that it will cause a surge in the number of traffic stops and the myriad arrests that flow from them (such as DUI's, Driving without license, etc.)

Wednesday, June 4, 2008

Off Topic: Get Ready for the 2008 Bud Bowl!

I am in a complete snit today thinking about how the corporate owned media is going to manipulate the public day in and day out for the next 5 months. The media giants are looking forward to record profits with every reason to expect that we will all be glued to our televisions while we try to get a sense of who is ahead in the race for the Whitehouse. There will be this opinion poll and that opinion poll, and the endless bantering and bickering among pundits. Presently it is all about whether Hillary is damaging the party by not endorsing Barack; as if this is a real concern that will prevail into November. The truth is, it will blow over. Those very few that are so disheartened about Hillary's defeat, and so much so that they say they are unwilling to vote for Barack (who, by the way, never said anything unfair toward Hillary in spite of being invited to do so repeatedly by the media), will either get over themselves, or they won't. Even if the media keeps fanning the flames of this so-called "issue", it won't make a difference in the outcome of the election. Yes, 18 million votes were cast for Hillary in the primaries. However, it is a complete fiction that those 18 million voters are not willing to vote for Barack unless Hillary "green-lights" it. Some of those people have already abandoned Hillary; and, in fact, they all should now that Barack is the presumptive nominee, regardless of what Hillary thinks. That's politics and it's nothing new. There are winners and losers, and Hillary is the loser; plain and simple. Hillary must accept that, much the way Al Gore did once the Supreme Court had spoken on whether the recount should continue in Florida. When it is clearly over, it is time to concede. That is called being a gracious loser, and Hillary is coming dangerously close to being a sore loser, if she hasn't already crossed that line.

If it is really about policy over personality, and what direction the country should head post-W, then any Hillary supporter would have to vote for Obama. Otherwise we could legitimately question their motives in voting for Hillary in the first place. After all, the major policy positions of Hillary and Barack have always been identical.

But, regardless, there will be a perceived neck and neck horse race (i.e., Obama's up, McCain is down and vice versa), and it's a big lie. Why? Because of one simple point:

If you don't already know who you would vote for come November (Obama or McCain), you are an imbecile. Sorry, but that's just true.

If you say you are undecided, and are not an imbecile, you are an attention-grabbing liar, who wants to be catered to and courted by the media and the two campaigns. They will sit down with you at the "kitchen table", interview you, invite you to participate in focus groups and bake you cookies, while you continue to fake that you are not an imbecile and/or undecided. Let's face it, the two candidates could not be more different on any scale you choose. This is not in fact the "bud bowl" as the candidates are way more different from each other than are any two bottles of beer. However, the analogy still works because the corporate owned media will prove that the public can be manipulated into believing that there really is a "decision" to be made that hasn't been made already. Oh, and just be sure to stay tuned through the commercials.

Monday, June 2, 2008

Pleading Not Guilty

The effect of one man and, more precisely, one man's wealth and fame on popular perceptions of the American brand of criminal justice is immeasurable. Of course I am referring to the original O.J. Simpson case. So many people who watched the case unfold more than 10 years ago feel that they learned one or more things about how the system functions, or malfunctions... The "lesson" cited most often is that guilty people sometimes go free; particulary wealthy guilty people.

I recall OJ making his first appearance on homicide charges where he declared that he was "Absolutely, positively, 100 percent, not guilty". I don't know who counseled him to modify the plea of "not guilty" but, if anyone did, it was more likely a publicist than a lawyer. "Not guilty" is one of only six permissible pleas to one or more criminal charges in California. Others are: guilty, nolo contendere, prior conviction, once in jeopardy and not guilty by reason of insanity. There is no legally cognizable plea of "Absolutely, not guilty" much less "Absolutely, Positively, 100 percent, not guilty". In all likelihood, OJ said it with so much emphasis because he knew the whole world of mostly non-lawyers was watching, and there is something about saying "not guilty" that just sounds, well, guilty.

The truth is, any time someone sets foot in a courtroom, as a criminal defendant, nearly every spectator and participant assumes that there must be some truth to the charge(s), otherwise the person would not be charged. So, saying "not guilty", however emphatic, lacks the persuasive force it would otherwise have. If we, as a society, weren't already conditioned to believe that nearly everyone charged is guilty, then we might actually listen with interest to what the plea is. What is not as widely understood is that nearly everyone who is criminally charged pleads "not guilty" - or at least authorizes an attorney to say it for them - at the beginning of the case. And there is a reason for this. Saying the words "not guilty" is the only legally recognized way to express the four most common states of mind held by a charged individual, which are: (1) "I am innocent",(2) "though I might be guilty, the state can't prove me guilty", (3)"I am guilty of some, but not all of the charges", or (4) "I am guilty as charged but am not ready to make a deal with the prosecutor right now". The lack of readiness may be because the charged individual wants to know more about the strength of the case against him and/or what the punishment will be, and whether any deal offered as of yet is the best deal he can get. So, "not guilty" is not a lie in cases where the person is actually guilty.

In traffic court you will hear people say they are "guilty with an explanation". These are, however, guilty pleas where the court is allowing the individual to blend their guilty plea with their argument for a lenient sentence. Such "pleas" are not permitted in non-traffic criminal court, and never result in anything other than a conviction of the charged offense.

To make matters more complex, there is a type of plea that permits an assertion of innocence along with a plea of nolo contendere. Such pleas in California are made pursuant to a case called the People v. West (1970) 3 Cal.3d 595. A "West plea" is most likely to stand for a plea which "does not constitute an express admission of guilt but only a consent to be punished as if guilty." Plea bargaining, which is often analogized with sausage-making, leads to many fictions and, at the fringes, injustices both large and small. A reality of our, and perhaps any, justice system is that people occasionally plead guilty to charges they didn't commit, and plead guilty to having done something criminal even where they haven't done anything criminal. This is what comes about by way of the immense legal leverage the legislature, and the voting public, has given to our prosecutors. It happens that people who are innocent sometimes agree to plead to a charge in order to eliminate a risk of a particular undesirable outcome (e.g., lengthy incarceration).

The most useful way to think about a criminal case, if you are the person charged, is that it is, at its core, a business transaction. The state wants one or more things from you and what you want in return is fairness. In many cases, the only way to achieve fairness in return for your eventual plea of "guilty" or "nolo contendere" is to, at first, plead "Not Guilty".