Anyone who knows me knows that I have a love-hate — but mostly love — relationship with technology. As I sit here, I’m working on my MacBook Air, having set aside my iPad 2. I don’t need to connect using the AT&T Mi-Fi hub I always carry with me, because the technology seminar facilities are providing my Internet connection today. My wi-fi/3G Apple-endowed cellphone is on vibrate, so as not to disturb.

I won’t rehash my tech background: I’ve done that before.

But there’s one area of tech I find overwhelmingly disturbing.

Clio is here today with a booth. They’re selling a beautiful product. I signed on for a trial account — although I never entered a shred of information into it — and explored the interface. I’d love to have it. It looks like it would be just the kind of practice management tool I want. There’s enough in it to run my office without being so much that it overwhelms.

Most practice management packages just have too much stuff for criminal law practices. I mean, what do we really need? It’s nice to have a searchable database of people for conflict checks. I also want the ability to keep track of notes without having to handwrite them — because handwriting, on paper at least, isn’t searchable. Being able to have one screen, or set of screens, that ties the case together, including paperless transcripts of hearings, motions, communications and anything else relating to the client is definitely important. And calendaring, integrated with Outlook, iCal, or something similar.

But I’ll never use Clio.

Never.

Why?

Because this is possible. And even this. And this.

Lest those links disappear someday, the stories are of the government — primarily the FBI, but how often could it be local police departments? — gaining access to user data stored on Facebook, Twitter, or other social media servers, as well as legislation that allows access to information about your activity on the Internet, provided courtesy of your ISP, and without your knowledge. Most of the time.

Clio, beautiful as it may be, lives “in the clouds.” I don’t.

Data living in clouds makes the data inherently insecure, if you look at it from the standpoint of a criminal defense attorney who is aware of the facts about which I wrote above. As a criminal defense attorney, I don’t trust the government. Therefore, as a criminal defense attorney, I don’t trust clouds.

When I told the Clio rep, who had descended upon me like a locust spotting the last stalk of wheat the minute I stopped and looked the poster, that I didnt trust clouds, he said, “Our data is absolutely secure. Even a large number of DA offices use our services.”

“No doubt,” I said. “They don’t have to worry about the government getting into their files.”

Besides, these days Scott is saying it better than I could and without suggesting war.

His solution? Give up. Be honest. The Constitution is dead. Put up signs:

“All persons found within the borders of the United States are subject to search and seizure.”¹

While that certainly would usher in a new era of governmental honesty, I find it unsatisfying — to say the least. What we some how must do is to find a way not just to recognize that it is happening and resign ourselves to the inevitable failures those of us who defend the victims of governmental overreaching experience on a daily basis, but to find a way to convince enough people who can still vote that it should not be happening, that it must be dealt with, and that if we don’t stop it, it will eventually consume the rights of us all.

Whew. That was a sentence!

There is an old quote, sometimes thought of as a poem, that has been so-much-circulated in so many different forms that it has pretty much lost its punch. But I beg you to bear with me here — don’t skim over it, saying, “oh, that; yeah, I’ve seen that like a million times.” I know you have. This time, I want you to read it. I want you to go through it slowly, think about the words, and read it. If you’re not willing to do that, you might want to just stop reading right here and skip this entire blog entry, because if you can’t focus for a minute here, you probably can’t focus on the point I’m trying to make, anyway.

When the Nazis came for the communists,
I remained silent;
I was not a communist.

When they locked up the social democrats,
I remained silent;
I was not a social democrat.

When they came for the trade unionists,
I did not speak out;
I was not a trade unionist.

When they came for the Jews,
I remained silent;
I wasn’t a Jew.

When they came for me,
there was no one left to speak out.

Don’t get lost in Godwin’s law on this one. First off, it’s a piece of shit “law”: if the police are really acting like Nazis, there’s no reason not to say that. To argue that we should never compare what’s happening in America today to what happened in Germany in the period leading up to the Nazi disaster is to risk ignoring the warning signs should it ever occur again. And don’t think it can’t happen here. As I’ve noted more than once previously (yes, I’m going to quote myself), pre-Nazi Germany wasn’t all that different from the United States today:

As alluded to above, even Nazi Germany didn’t spring fully-armored from the brow of Zeus. There really was a time in Germany, before the reign of the Nazis, in which there were constitutionally-protected freedoms. As Ingo Müller has pointed out, the German legal system was brought down not overnight, but over a period of time, by “the doctrine of ‘national emergency.’”²

But, secondly, I’m not even trying to argue here that the police are Nazis.

Not yet, anyway.

I want to make what I hope is a simpler and — again, “I hope!” — even less controversial point.

And that is that the abolition of the United States Constitution is not something which necessarily occurs overnight. Like the sand in an hourglass, it dissipates a few grains — or even a grain — at a time, until eventually, it is gone. As Justice Douglas put it:

These civil rights — whether they concern speech, searches and seizures, self-incrimination, criminal prosecutions, bail, or cruel and unusual punishments extend, of course, to everyone, but in cold reality touch mostly the lower castes in our society. I refer, of course, to the blacks, the Chicanos, the one-mule farmers, the agricultural workers, the offbeat students, the victims of the ghetto. Are we giving the States the power to experiment in diluting their civil rights? It has long been thought that the “thou shalt nots” in the Constitution and Bill of Rights protect everyone against governmental intrusion or overreaching. The idea has been obnoxious that there are some who can be relegated to second-class citizenship. But if we construe the Bill of Rights and the Fourteenth Amendment to permit States to “experiment” with the basic rights of people, we open a veritable Pandora’s box. For hate and prejudice are versatile forces that can degrade the constitutional scheme.³

So, for now, we go after “the undesirables,” the lower caste of our “casteless society.” As long as the police stick to that approach, they — that is, the police — are safe. They have time to build their power base, because no one with real power will oppose them.

But, as with the Niemöller quote, or poem, above, it doesn’t necessarily end there. Once our government — particularly law enforcement — crosses that line, it becomes comfortable. Entrenched. It may even sincerely, albeit rarely, apply its newfound power to ignore constitutional limitations against the likes of you, rich man, white boy, judge, senator, out of some perverse effort to show that it is not limited to targeting “the blacks, the Chicanos, the one-mule farmers, the agricultural workers, the offbeat students, the victims of the ghetto.”

It may even believe that.

But it won’t matter. Whatever the reason, the line is crossed. A new culture flowers. American citizens are deflowered. “[L]egal norms [are] forced to yield to political opportunism.”⁴ Before you know it, everyone — particularly the courts — have given the police a free hand.⁵

When that day comes, it will be too late. Law enforcement will have become too entrenched. They will have too many drones, tanks, automatic weapons.

And the people who, if the rest of us supported the concept of Law, might have stood against them – ”the blacks, the Chicanos, the one-mule farmers, the agricultural workers, the offbeat students, the victims of the ghetto” — they’ll have long ago been subdued and locked away, so that when law enforcement comes after you, there will be no one left to speak out.

Comments

• May 14, 2012, BRIAN TANNEBAUM writes: Rick, Things in the criminal justice system are getting pretty bad. No doubt. A decade after 9/11 we see an America where the public has no desire to curtail police power (until their kid is of course "unfairly, wrongly, and illegally stopped and searched.") As a criminal defense lawyer, you have a couple choices - run for office (and maybe lose), try to become a judge (not easy either), write about it (which you do), leave the practice and focus on something else, or try to make a difference on client at a time. A vacation is also not a bad idea. Go clear your head, take a deep breath, see the good in life in other areas. Anger doesn't change the system - anger and work - maybe - can make a difference. But don't ever think that it's going to change much. Remember that the system operates as it does because the public allows it to.
• May 14, 2012, Rick writes: Brian, you can't imagine how much seeing your comment here improved my day. You and Scott are -- believe it or not -- at the top of the list of people I respect the most. I bet there isn't a day that goes by when I don't wonder how you, Scott, and one or two other people might feel about something I do. On more than one occasion, I've felt something that, at the moment felt okay, but then I ask myself "what would Brian and Scott say if they found out about this?" and, sometimes, there is a change in direction. To know you read my post and thought enough of it to comment gives me a boost. Now if only I could follow your advice about a vacation. I know I need one. I have managed to keep my office open past the five-year mark. I haven't figured out how to do that and take a vacation.
• May 15, 2012, Mark Draughn writes: Hey Rick, when something you write gets Brian Frickin' Tannebaum to stop yapping about the evils of social media and come down from his mountain of scorn and derision to write something that sounds supportive...that sounds pretty serious. Take care of yourself.
• May 15, 2012, So It’s Not Just Me? » The New Atlantean writes: [...] of the blog* Rick Horowitz hasn’t blogged much recently. Seems he wants to avoid being charged with sedition or something: One reason I haven’t been blogging as much lately is I’m too angry. I’d be [...]
• May 15, 2012, John David Galt writes: I'm all for doing something about it, but what is there to do? Any reader who lives in a place like New York City or Joe Arpaio's county in Arizona is simply going to be outvoted by people who love the thug tactics those cops use. I'd love to see them put in prison or successfully sued (though a court would have to break serious new ground to do either one), but I have yet to hear of a judge with the balls to do it. So what does that leave for us to do? I really, really don't want "take up arms" to be the only answer.
• May 17, 2012, TJIC writes: Excellent post. Keep fighting the good fight, it's appreciate more than you can know. ...although, as a commentor said above, take a vacation if you need one to stay sane. @John David Galt > I’m all for doing something about it, but what is there to do? One answer was covered in the second sentence of the post above.

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1. Let me state right here that I don’t think Scott really believes that is the thing to do.
2. Ingo Müller, Hitler’s Justice: The Courts of the Third Reich, p. 24 (1991).
3. Johnson v. Louisiana, 406 U.S. 356, 387; 92 S. Ct. 1620; 32 L. Ed. 2d 152 (1972).
4. Müller, supra, at 293.
5. Id. at 49.

They are not alone in constituting the corrupt core, of course. It is a witches’ brew comprised of many elements.

Police officers prey upon citizens. They conduct home invasion robberies under color of law with impunity. Probation officers don’t concern themselves with whether their techniques for dealing with those who are essentially their prisoners actually change lives; they simply keep increasing the pressure on those under their thumbs.

Prosecutors? Like judges, they have essentially abdicated their part in the American system of jurisprudence established by those who came before them. No longer do they seek justice; only convictions. The mantra of the underlings is “I was only following orders.” Who knew that Americans would set a standard for conformity to following orders that would shame even Germany? And if, somehow, strong evidence comes to light down the road that an innocent person has been convicted, these same prosecutors will fight like the hell that spawned them to preserve the conviction, rather than allow that something may have gone awry.

Then there are the criminal defense attorneys who, believing the lostness of the cause justifies their laziness, forget to fight for their clients.

It is…disheartening…to say the least. Our elected officials have also turned a blind eye to the problems, refusing to pass bills that would require accountability from those working in the legal profession.

Only informed voters are going to be able to fix things.

Unfortunately, once you become informed, you’re not allowed to vote.¹

I don’t claim to have all the answers to the world’s problems. I can, however, tell by watching that the system we have right now only makes the world a worst place in which to live for all of us. It’s not just the growing underclass of citizens we are creating who suffer. All of us have to live not only with the current cheapening of human lives that is part and parcel of today’s criminal justice system, but we all live with the aftermath of the damage it does to those caught in its maw.

Not to mention the fear — shared only by those of us who pay attention — that we could very well be next.

The thing is, unless we open our eyes, the current system can only bring with it something that mimics the futuristic dystopias written about by people as varied as James McCausland and Jack London, as H.G. Wells and Margaret Atwood, as Nancy Farmer and Franz Kafka.

Part of the problem appears to be that, contrary to what we are told, our system is not geared towards either of the twin intertwined goals of “keeping us safe” and “stopping criminals.” If it were, perhaps we could endorse some — though not all — of the horrors of the system.

No. It is geared simply toward control. And profit.

It comes at us from (at least) two points: the huge numbers of corporations and people making money from the incarceration of other Americans, and the police and others who profit directly (through government-sponsored theft), or less directly (through government grants to their departments).

The drive for profit is thus a huge disincentive for fixing the system.

If you think the drive for profit is a chimera, concocted by drooling liberals whose love of criminals is such that they cannot stand to see anyone incarcerated even for one day, even for the murder or rape of children, you are sadly mistaken. In fact, because of the degree to which the profit motive drives law enforcement, true safety is a thing of the past.

As the Daily Kos — as liberal a website as there is — complained last November,

According to Radley Balko at The Huffington Post, police departments are purposely failing to pursue cases involving assaults, beatings, robberies, and even rape because those cases do not bring back money to their precincts.

But it’s actually worse than a reading of the Daily Kos might suggest. According to the original article by Balko, “asset forfeiture” — whereby officers seize a citizen’s property because, according to the police, it was used for buying, selling, transporting, or was the product of the payments for, drugs — encourages the police to participate in the creation of more crime.

Asset forfeiture not only encourages police agencies to use resources and manpower on drug crimes at the expense of violent crimes, it also provides an incentive for police agencies to actually wait until drugs are on the streets before making a bust. In a 1994 study reported in Justice Quarterly, criminologists J. Mitchell Miller and Lance H. Selva watched several police agencies delay busts of suspected drug dealers in order to maximize the cash the department could seize. A stash of illegal drugs isn’t of much value to a police department. Letting the dealers sell the drugs first is more lucrative.

In my practice, I’ve had a number of people come to me with stories of the police coming to their homes, essentially forcing their way in — usually without a warrant — and ultimately leaving with money and property. In the majority of these cases, no charges are ever filed.

Ever.

Even when they are, they are frequently later dropped, but your property is gone.

That’s why I said, “people,” instead of “clients.” Because I only do criminal defense, these people never become clients of mine; they aren’t accused of having committed any crimes. On the contrary, they are essentially the victims of home invasion robberies. Nothing worse than the loss of money and property – and possibly an arrest entry without any follow-up disposition in their government file — ever happens to them.

Once in awhile, one of these people will try to get their property back. Guess what happens to them?

They become clients. Suddenly — regardless of how much time has already passed — charges will be filed. In two cases I’ve had, the individuals were “visited” by the police, who took their rent money and some property after insisting these folk had been involved in criminal activity. They were cited, meaning not arrested, for alleged misdemeanors and told that their money and property was being “forfeited.” (Only no asset forfeiture forms were ever submitted.) Nearly a year later, the District Attorney’s Office sent them letters stating something to the effect of “no charges will be filed at this time.”

These folks waited a year, thinking that by then the statute of limitations would have passed on any misdemeanors, and asked for the return of their money and property.

Suddenly, as I said, they became clients. They were puzzled and distressed, having missed the “at this time” portion of the District Attorney’s statement regarding their cases. They didn’t get that the District Attorney could charge them with felonies, after refusing to prosecute them for misdemeanors. The statute of limitations had passed on any misdemeanors, and therefore charging with felonies was the only way to stop them from getting their property back.

So, that’s exactly what happened. The District Attorney’s Office, having already turned down the misdemeanor charges, filed felonies on each of them.

Because they had the gall to ask the police to return their rent money and property.

Not only that, but the DA’s office “fast-tracked” their cases, and told the assigned deputy DA that under no conditions would any offers be made, other than that the DA’s office would agree not to ask for prison time (which they would be unlikely to get anyway under the circumstances of the case).

Instead, my clients could plead guilty to the felonies and would “only” lose the ability to ever vote again, among other things.

Or they can take their chances with a jury (which, in this case, might not be a bad bet, although they were already told the police will lie when they testify and claim that at least one of them admitted guilt).

What a brilliant way to ensure that government-sponsored robbery cannot be stopped!

To add insult to injury, the system also has a built-in method for ensuring that this travesty is never addressed by voters. Persons convicted of felonies cannot vote. It really is, as I said, brilliant. The police rob you. If you don’t try to do anything about it, no problem — except that I have had some people come to my office stating “the police did this last year, and now this year they’re back doing it again; no charges are ever filed” — but if you do try to do anything about it, the District Attorney’s Office steps in to charge you with a crime.

And the judges — most of whom are former Deputy District Attorneys and therefore know all about how this works? — they give it the official stamp of approval.

Who says crime doesn’t pay? It pays plenty. We’ve just misidentified the criminals.

Comments

• April 24, 2012, One Step Over the Line? Sweet Jesus! | Fresno Criminal Defense writes: [...] — unlike the Tulare County Sheriff — I’m not just blowing it out my ass. However, I’ve already written one blog post today and wasn’t planning to write another when I saw this story. Based on the story alone, though [...]
• April 25, 2012, There’s a Reason I’m on Blood Pressure Meds » The New Atlantean writes: [...] if I didn’t, when I read blog posts like this I’d have a stroke. In it Rick Horowitz, a defense attorney from California, points out yet [...]
• April 30, 2012, Blawg Review #319: The Power of Myth and the Myth of Power « THE TRIAL WARRIOR BLOG writes: [...] at Probable Cause, Rick Horowitz asks “Who Says Crime Doesn’t Pay?” and indicts the entire criminal justice system: Our legal system is corrupt. It is rotten to [...]
• May 1, 2012, Justice v. Efficiency | Tempe Criminal Defense writes: [...] criminal justice system is broken. Many judges are little more than prosecutors in [...]

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1. Citizens convicted of felonies are, in a sense, no longer citizens: they are stripped of the right to vote.

That’s what we call “reasonable.”

What? What? What am I talking about?

I’m talking about the latest case from the United States Supreme Court — Florence v. Board of Chosen Freeholders of County of Burlington (note: that’s Freeholders, not Freeholers) – which indicates that the government can never violate an individual’s constitutional rights, so long as the government is doing something it says it needs to do.

In particular,

courts must defer to the judgment of correctional officials unless the record contains substantial evidence showing their policies are an unnecessary or unjustified response to problems of jail security.

I have frequently suggested that one of the most useful and excellent dissertations for a linguistics doctoral candidate would be to analyze terms like “substantial” as used in criminal cases. My own reading has convinced me that when an individual is challenging the government, “substantial” means you pretty much have to prove, beyond all possible doubt, that which you are arguing; on the flip side, if the government is challenging an individual, then “substantial” means “we have to see something we can pretend supports the government’s view of things without busting our own guts publicly from uncontrollable laughter.”

In Florence, the Supremes must have had a tough time with that. I mean who can with a straight face say, as this Court did, that making people who have been arrested for traffic violations or unpaid fines spread their ass cheeks while a guard inspects their asshole…

…struck a reasonable balance between inmate privacy and the needs of the institutions.

“Reasonable balance.”

Here’s how “reasonable” that balance was: the trial court granted summary judgment for Albert Florence, whose asshole was inspected at two different jail facilities after he was mistakenly arrested due to a computer error.

Summary judgment is something which is not easy for individuals to win. In fact, check the cases and you’ll find that, although summary judgment can be difficult for anyone to win, when summary judgment is won by a party in a civil rights case, that party is almost always the government, or a government employee, defending against the complaint of an “ordinary” person. By “ordinary,” I mean a person who is not supposedly doing something for the government; i.e., they aren’t illegally arresting people, or trying to take away their property using the power of government, or something along those lines.

The easiest way to tell the difference between the parties, aside from the fact that the government nearly always wins these days, is that the individual saying he or she has some particular right is not the government; the one saying the right does not exist, or, if it does exist, it was not violated — that’s the government.

So, in this case, where the United States Supreme Court decision says allowing correctional officers to peek up people’s buttholes after mistaken arrests for failing to pay fines in what are ultimately traffic cases is reasonable, the trial court was so convinced that it was unreasonable, that it granted summary judgment.

Well!

The government knows it’s not supposed to lose, so we move on to the appeal.

Sure enough, the Court of Appeals for the Third Circuit reversed the trial court’s grant of summary judgment. In fact, the Circuit Court was so convinced as to the absolute reasonableness of this, that just enough judges voted to reverse. Or, as the United States Supreme Court recognized,

A divided panel of the United States Court of Appeals for the Third Circuit reversed, holding that the procedures described by the District Court struck a reasonable balance between inmate privacy and the security needs of the two jails.¹

The Court also noted that

[t]he Federal Courts of Appeals have come to differing conclusions as to whether the Fourth Amendment requires correctional officials to exempt some detainees who will be admitted to the jail’s general population from the searches here at issue.

In other words, some Federal Courts of Appeals think it’s okay for correctional officers to peek at people’s assholes once they’ve entered a jail and some don’t.

But it was even more reasonable than this: of the nine “Justices” of the United States Supreme, only four thought it was unreasonable.

Well, how much more clear can things get than that? Counting the trial judge, it sounds like it was probably only evenly split between “we think this is unreasonable” and “we think this is reasonable.”

But the trial judge doesn’t count, because the Supreme Court managed to get one more vote for the side that thought it was reasonable. With this much disagreement, the default position has to be that it’s reasonable.

Ergo, there can be no mistake: it’s indisputably reasonable.

It might be possible, as some Courts of Appeals have allegedly said,

that practices similar to those at issue here are “demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant, embarrassing, [and] repulsive, signifying degradation and submission.

Why should anyone care about that? A) We’re talking about ordinary citizens here, not Supreme Court Justices. B) Degrading and instilling in ordinary citizens an attitude of submission to the government is a Good Thing™. C) We’re talking about ordinary citizens here, not Supreme Court Justices.

As the dissent points out, individuals who have been subjected to these types of strip searches include:

1. A nun, a Sister of Divine Providence for 50 years, who was arrested for trespassing during an antiwar demonstration.
2. Women who were lactating or menstruating.
3. Victims of sexual violence.
4. Individuals detained for driving with a noisy muffler, driving with an inoperable headlight, failing to use a turn signal, or [that most horrible of crimes] riding a bicycle without an audible bell.

And who is the United States Supreme Court to say correctional officers are wrong to say these people should be searched? After all,

[t]he difficulties of operating a detention center must not be underestimated by the courts. [citation omitted] Jails (in the stricter sense of the term, excluding prison facilities) admit more than 13 million inmates a year. [!] … Maintaining safety and order at these institutions requires the expertise of correctional officials, who must have substantial discretion to devise reasonable solutions to the problems they face. The Court has confirmed the importance of deference to correctional officials and explained that a regulation impinging on an inmate’s constitutional rights must be upheld “if it is reasonably related to legitimate penological interests.”

Hmmm…does it matter that the opinion says “inmate’s constitutional rights”? Isn’t the basis of the opinion the need for deference in the face of the expertise of correctional officers for keeping contraband from reaching the general population in custodial facilities? Isn’t it true that attorneys have been caught smuggling contraband in to prisoners? Aren’t the experts — the correctional officers — in just the same position relative to the court in making a determination as to whether or not attorneys should have to show their assholes to gain entry to custodial facilities as they are in making that determination for menstruating nuns, riders of bell-less bicycles, or victims of sexual violence?

As horrifying as it is overall, the opinion is not without its comedic value. For example, one justification given by the Court for allowing guards to peek at someone’s asshole even for a minor offense, like riding a bicycle without a bell, is the need to identify gang tattoos.

Because if I were a really clever gang member — or maybe just an ignorant fuck of a Supreme Court “Justice” — that’s where I’d hide my gang tattoo.

Comments

• April 4, 2012, TJIC writes: So where do we go from here? Is it time to start shooting the bastards yet? If not yet, what further outrage is sufficient to justify it?
• April 4, 2012, The Realist writes: If someone backfires while getting there checks spread would they add additional charges like assaulting an officer!
• April 4, 2012, Rick writes: As a matter of fact, I believe I have heard of a case similar to that. I don't recall that it involved "backfiring," as you called it, but I believe it did involve some other bodily function, which the defendant claimed not to have done deliberately.
• April 4, 2012, Rick writes: Obviously, I can't recommend that anyone start shooting the bastards yet, but I'm also not going to go out of my way to dissuade them. All kidding aside, I believe that some kind of disintegration of the country that has usurped the name of "United States of America" will occur in my lifetime. It may or may not involve shooting. I suspect that it will involve some. When it happens, I expect to actively participate on whichever side I deem -- at the time -- to be in the right.

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1. Emphasis added.

I’m sorry for not blogging.

Carole is my first Office Manager.

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There are all kinds of reasons why it isn’t true that a criminal defense attorney is responsible for these things, but the feeling of responsibility is often there anyway (at least for me).

Recognizing that the attorney is not responsible for it is not to say that the client is responsible for it. More innocent people than you might imagine are arrested and charged with crimes.¹ Some are not, of course, innocent. Let’s face it, the police don’t get it wrong every time or, as I like to say, “even a blind squirrel gets a nut once in awhile.”

Complicating this whole mess is the combination of a system that tries hard to stop people from exercising their constitutional rights, and the “process” of plea bargaining upon which it depends.

Yesterday, the plea bargaining process became just a little more complicated.

As I wrote just a short time ago, I am not a big fan of plea agreements. I have always considered them, as Justice Scalia labeled them, “a necessary evil.”

Where I differ with Justice Scalia, I guess, is in my belief that they are evil because they are necessary. And the fault for that lies squarely with Justice Scalia and his minions, both on and off the United States Supreme Court, because under their aegis the individual States are free to ignore any sense of true justice when it comes to punishment: the Eighth Amendment of the United States Constitution was killed off a long time ago.

To quote one of the United States Supreme Court’s newest opinions on the matter:²

[Defendants] who do take their case to trial and lose receive longer sentences than even Congress or the prosecutor might think appropriate, because the longer sentences exist on the books largely for bargaining purposes. This often results in individuals who accept a plea bargain receiving shorter sentences than other individuals who are less morally culpable but take a chance and go to trial.³

So much for the Eighth Amendment. This recognition that “even Congress or the prosecutor” would think the longer sentences are not appropriate and — more importantly — that the sentences exist for the sole purpose of making sure people don’t try to claim their constitutional rights…well, you’d think this would implicate the Eighth Amendment. But that Amendment died and was buried so long ago that even the Supreme Court doesn’t remember it.

So I’ll pretend not to, as well.

Aside from the Eighth Amendment, which we’re not going to discuss, there is so much other blogging that could come out of these two decisions that I could write posts for days.

I could talk about the fact that this just impresses, again, that being a criminal defense attorney is not such a simplistic proposition that it can be handled by posting your question and getting free answers from Avvo.com, or that fees should be capped by websites and conglomerates that can force good attorneys to choose between good representation or starvation — or, at least, try.

But Carolyn Elefant wrote a really good post about that this morning (although it had nothing to do with these Supreme Court cases, or plea bargains).

I could argue — as I already did — that the system is so evil that accused persons and their attorneys everywhere should work to bring the system to a crashing, disastrous, halt.

I could write about what a huge “step forward” this is for the rights of accused people when it comes to plea bargains, and call it “the single greatest revolution in the criminal justice process since Gideon v. Wainwright provided indigents the right to counsel.”

But Adam Liptak already did that yesterday.

I could spin the report of the cases in such a way as to imply that the real evil is not plea bargains, but the Supreme Court suggesting people need to be protected from it.

Instead, I’m going to talk about what the cases actually say.

I know. I know. Really, I know. Some people say I shouldn’t bother with such “legal analysis” types of posts.⁴ No one wants to read them, I’m told.

Fine. Skip this one. Sometimes I write for me. And being forced to analyze and write about the cases will help me, even if you decide it’s “too long” or “too much” or even “too dry.” And who knows? Maybe another attorney will get something from it.

At any rate, I think this is important because, as Justice Kennedy noted in the Frye opinion,

Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas.

So, for starters, here’s what the two cases are about:

The initial question is whether the constitutional right to counsel extends to the negotiation and consideration of plea offers that lapse or are rejected. If there is a right to effective assistance with respect to those offers, a further question is what a defendant must demonstrate in order to show that prejudice resulted from counsel’s deficient performance. Other questions relating to ineffective assistance with respect to plea offers, including the question of proper remedies, are considered in a second case decided today.⁵

It turns out the answers aren’t all that complex. Nor are they necessarily earth-shattering. In the end, I think the result is going to be something of a snooze, or, as my generation often says about stuff like this, “same-o, same-o.”

Ironically, there is a virtual 100% certainty that neither case will make a difference for the individuals involved, as you’ll understand when we get to the remedy in each case, and there is little likelihood they will make a significant difference in future cases, either.

Let’s dispense with Missouri v. Frye first, both because it’s easy and because, well, it was (technically) decided first.

The court basically holds that an attorney can be guilty of the sin of ineffective assistance of counsel (or, as it is lovingly known by criminal defense attorneys, “IAC”) in regards to plea agreements.

Justice Scalia disagrees, mostly because he’s a binary thinker. But in this case, I “kinda sorta” think (aaaughhh!) he’s right.

Well, okay, not so much on Frye. Maybe.

The problem in Frye is that the criminal defense attorney essentially abandoned his client. Frye was charged with the earth-shattering crime of driving with a  revoked license. Missouri apparently followed the rule of “if you didn’t get that this was a crime the first three times, we’re going to lock you up for an incredibly long time on the fourth try.” Kind of like “three strikes,” but you don’t suffer until the fourth swing of the bat.⁶

At least, that appears to be the case here.

So the prosecutor offers Frye a deal, in writing. Instead of a “class D felony,” the prosecutor offers (ultimately) a misdemeanor with a recommendation for 90 days in jail, instead of 3 years in prison.

But Frye’s attorney never tells him about it.

Meanwhile, as that case progresses, Frye steps up to the plate again — his fifth time at bat.

Somewhere in there, he ends up pleading to the felony.

Long story short, the United States Supreme Court, with Justice Kennedy as both the swing vote and writer of the opinion, says the failure to communicate the offer to Frye when it was made constitutes ineffective assistance of counsel and, applying the normal rules for IAC, determines that Frye was prejudiced and is therefore entitled to a remedy.

Maybe.

Turns out, Missouri allows a prosecutor to withdraw a plea at any time — even after the accused accepts it — prior to the actual plea being taken in court. It also allows a judge to say, “Sorry. I’m not going along with this.”

And, remember, after the offer was made, but before it could have been accepted (if Frye had known about it),Frye stepped up for a fifth swing at bat.

So the United States Supreme Court says,

Yes, there was IAC here. Under normal circumstances, maybe Frye should get the original agreement. But he hasn’t proven that the prosecutor would not withdraw the plea, or that the court would go along with the plea, after his fifth turn at bat. Since we don’t know that the prosecutor or judge would have allowed the plea to go through, we don’t really know if he was prejudiced.

Ok. That wasn’t an actual quote from the case, but they might as well have said that. The upshot is that they remanded the case.

In Missouri, it appears “a plea offer once accepted by the defendant can be withdrawn without recourse” by the prosecution. [Citation.] The extent of the trial court’s discretion in Missouri to reject a plea agreement appears to be in some doubt.

…

If, as the Missouri court stated here, the prosecutor could have canceled the plea agreement, and if Frye fails to show a reasonable probability the prosecutor would have adhered to the agreement, there is no Strickland prejudice. Likewise, if the trial court could have refused to accept the plea agreement, and if Frye fails to show a reasonable probability the trial court would have accepted the plea, there is no Strickland prejudice. In this case, given Frye’s new offense for driving without a license [while the other case was pending], there is reason to doubt that the prosecution would have adhered to the agreement or that the trial court would have accepted it at the [later] hearing, unless they were required by state law to do so.⁷

Ya think?

So the Court in Frye opened a can of worms, but Frye is unlikely to get one of them. In other words, Frye is still fried.

Justice Scalia’s dissent is both predictable and short. There being no constitutional right to a plea bargain, Frye was not prejudiced.

While the inadequacy of counsel’s performance in this case is clear enough, whether it was prejudicial (in the sense that the Court’s new version of Strickland [ouch] requires) is not.⁸

At first glance, Scalia’s terse reply appears to amount to this: The constitutional right to counsel under the Sixth Amendment guarantees nothing more than a warm body. Well, okay: maybe a warm body with a law degree.

But not necessarily a caring bone in its body.

Scalia’s dissent in Frye ends by noting,

The plea-bargaining [⁹ ] process is a subject worthy of regulation, since it is the means by which most criminal convictions are obtained. It happens not to be, however, a subject covered by the Sixth Amendment, which is concerned not with the fairness of bargaining but with the fairness of conviction. “The Constitution…is not an all-purpose tool for judicial construction of a perfect world; and when we ignore its text in order to make it that, we often find ourselves swinging a sledge where a tack hammer is needed.”¹⁰

The real knee-slapper, though, is Lafler v. Cooper.¹¹

In Cooper, the offer was actually communicated.

By incompetent defense counsel.

The short facts are these: Cooper tried to shoot someone in the head. He missed. The target, one Kali Mundy, fled. Cooper gave chase, shooting the whole time. Mundy was hit several times, but lived.

Oh, and all the shots that hit her were below the waist.

So when the offer was communicated, Cooper’s obviously talented and seasoned attorney — somehow ignoring that the first shot, which missed, was aimed at the head — said,

You can’t be convicted for this. All the shots were below the waist. They can’t prove you intended to murder Mundy.¹²

Well, they did. Probably something about the fact that the first shot was aimed at the head, there was a chase, and Mundy caught at least three of the bullets during the chase.

To shortcut this explanation, there were multiple offers made and all were rejected because of defense counsel’s bizarre understanding of the law, the facts, and how they hooked up to not prove intent.

In the end — not to be confused with Mundy’s shot-infested buttock — everyone agreed that counsel made a boo-boo. To obtain relief, then, all Cooper had to do was…well, here’s what the court said:

In these circumstances a defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed.¹³

In arriving at that rule, the Court basically decided that representation at critical stages is a Sixth Amendment requirement. This includes pretrial. This includes plea bargaining, because that usually happens pretrial. And “defendants cannot be presumed to make critical decisions without counsel’s advice.”¹⁴

The fact that a fair trial was later held — this, we will see, gives Scalia conniptions — does not cure the problem.¹⁵ This is because, the Court ultimately holds,

If a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it. If that right is denied, prejudice can be shown if loss of the plea opportunity led to a trial resulting in a conviction on more serious charges or the imposition of a more severe sentence.¹⁶

Moreover, the Court says,

The fact that respondent is guilty does not mean he was not entitled by the Sixth Amendment to effective assistance or that he suffered no prejudice from his attorney’s deficient performance during plea bargaining.¹⁷

The Court thus rejects the idea that

A fair trial wipes clean any deficient performance by defense counsel during plea bargaining.¹⁸

Before I go on, let me be clear about something: As a defense attorney, I am not unhappy with these rulings. First of all, though I hate plea agreements (for all kinds of reasons), I want whatever is best for my clients. That’s what the law expects me to want and, because I think our system is fatally flawed (again, for all kinds of reasons), it’s what I actually want.

So to the extent that I can use these rulings to help my clients, I absolutely will.

But, if you want my frank and uncensored opinion, Justice Scalia’s dissents got it right.

In Cooper, Scalia notes the bizarre upshot of the Court’s opinion:

The Court…concludes that Cooper is entitled to some sort of habea corpus relief (perhaps) [¹⁹ ] because his attorney’s allegedly incompetent advice regarding a plea offer caused him to receive a full and fair trial.²⁰

This, for Scalia, is where the problem comes in. To reverse the order of a couple of quotes in his dissenting opinion,

“[T]he right to effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial.” [²¹ ] [reversal here] [Cooper] is a vast departure from our past cases, protecting not just the constitutionally prescribed [²² ] right to a fair adjudication of guilt and punishment, but a judicially invented right to effective plea bargaining.²³

This, of course, is more than enough to blow Scalia’s mind. But I left something out of the story above, and Scalia is justifiably flabbergasted by that something:

Astoundingly, “the state trial court can then exercise its discretion in determining whether to vacate the convictions and resentence [Cooper] pursuant to the plea agreement, to vacate only some of the convictions and resentence [Cooper] accordingly, or to leave the convictions and sentence from trial undisturbed.²⁴

Yep. What I left out above was that the Court had remanded Cooper and indicated that the trial court could, among other things, decide — notwithstanding the U.S. Supreme Court’s holding of a constitutional violation – to do nothing about it. The sentence, which the Court had said Cooper suffered only because of a violation of his constitutional right to effective assistance of counsel when deciding to reject the plea agreement, could be left in place.

Scalia says — and I have to agree with him — this is extraordinary. 

The idea that the Supreme Court could hold that the remedy – or lack thereof – for a violation of, as they deem it, a constitutional right is left to the discretion of the trial court is so nutty that even Alito is able to sound intelligent:

If a defendant’s Sixth Amendment rights are violated when deficient legal advice about a favorable plea offer causes the opportunity for that bargain to be lost, the only logical remedy is to give the defendant the benefit of the favorable deal.²⁵

In the end, I find myself siding (not for the first time) with a man I detest. Scalia, in my opinion, is a thoroughly despicable human being. But in this case, he has the better argument. The defense attorneys in both these cases fucked up. The Supreme Court did not really fix anything. In the end, though the Court appears to side with the accused in both these cases, I don’t think either man will end up with a “remedy.”

And Scalia is right about something else. Constitutionally-speaking, there is no guaranteed right to a plea bargain. Nor is it going to be any easy task to know when a decision about a plea bargain was strategic and when it was the result of ineffective assistance of counsel. In the end, these decisions help no one. Plea bargaining remains what it always has been:

[E]vil. It presents grave risks of prosecutorial overcharging that effectively compels an innocent defendant to avoid massive risk by pleading guilty to a lesser offense….²⁶

The only reason it survives is because

without it our long and expensive process of criminal trial [sic] could not sustain the burden imposed on it, and our system of criminal justice [sic] would grind to a halt.²⁷

Related posts:

• F**k Justice
• Let’s Make A Deal
• Rant: There Are Days

1. It is the existence of plea bargaining has raised this from “some” to “more than you might imagine.” This is perhaps fodder for another post. I think the fact that plea bargaining exists, combined with the fact that potential sentences are so high, means the police arrest more innocent people. Because they can rest assured that even innocent people will plead guilty if it means “only” losing, say, three years of their lives, rather than five, ten, twenty, or more, and for other reasons that, as I said, are fodder for another post, the police get away with shoddy investigations and snap judgments.
2. The Court was, itself, quoting Barkow, Separation of Powers and the Criminal Law, 58 Stan. L. Rev. 989, 1034 (2006).
3. Missouri v. Frye slip opinion at 6 (March 21, 2012) (alteration in the Court opinion; emphasis added).
4. Although — I promise you — they aren’t really complicated cases, anyway, so there isn’t all that much “analysis” to do.
5. Missouri v. Frye slip opinion (March 21, 2012), p 1. The “second case” will be Lafler v. Cooper, discussed below.
6. That there could be a three-year prison sentence for doing this is just one of many things wrong with criminal laws in the United States.
7. Missouri v. Frye slip opinion at 15 (March 21, 2012).
8. Missouri v. Frye slip opinion (Scalia dissent) at 3.
9. You can't fault a man who knows the proper use of hyphens! Can you?
10. Missouri v. Frye slip opinion (Scalia dissent) at 5. I don’t get the whole “sledge v. tack hammer” thing here, but I assume Scalia somehow focusing on the sledge, rather than the tack hammer. If I read Scalia correctly, there is no hammer at all. It’s up to the legislature to fix this problem.
11. Get it? “Knee-slapper”? “Lafler?” … “Laugher”? No. I don’t apologize!
12. Yeah, yeah. Not a real quote, but — seriously – almost the actual quote.
13. Lafler v. Cooper slip opinion at 5 (March 21, 2012).
14. Id. at 6. And, oh, by the way, would someone please tell that to my clients?
15. Id. at 7.
16. Id. at 9.
17. Id. at 11.
18. Id.
19. That "perhaps" is, uh, perhaps the most bizarre aspect of this case
20. Lafler v. Cooper slip opinion (Scalia dissent) at 2 (March 21, 2012).
21. Id. at 4, quoting United States v. Cronic, 466 U.S. 648, 658 (1984).
22. Rats. I have to retract the praise for his knowing use of hyphens!
23. Lafler v. Cooper slip opinion (Scalia dissent) at 4 (March 21, 2012).
24. Id. at 10. (emphasis added by Scalia).
25. Lafler v. Cooper slip opinion (Alito dissent) at 1 (March 21, 2012).
26. Lafler v. Cooper slip opinion (Scalia dissent) at 12 (March 21, 2012).
27. Id.

• Do you like reading occasionally irreverent thoughts on law, liberty, tech, and politics?
• Are you a lawyer who has been sued for repeating a news story about an incompetent lawyer?
• Under attack from copyright trolls?
• Maybe you’re a free fall photographer wondering about copyright issues?
• Or perhaps you’re about to throw a party at your condo clubhouse and wonder if you have to pay a licensing fee to play the radio over the speakers?
• Of course, you could just be a big fat blowhard people want to silence.

Regardless, Randazza’s got it covered. 

But you don’t have to just take my word for it: Here’s what others, including a large number of lawyers from the United States and Canada, have to say about Marc Randazza.

• Marc Randazza, First Amendment Lawyer, on the Rush Limbaugh Fiasco (Mike at Crime & Federalism)
• Marc Randazza, Hero (Scott Greenfield at Simple Justice)
• Marc Randazza: First Amendment Badass (Ken at Popehat)
• The Time I Unleashed Marc Randazza On The ABA (Josh King at Corporate Tool)
• Marc Randazza Would Support Me, Right? (Vidocq at Defrosting Cold Cases)
• Righthaven, Liquified (Deviled Text)
• Marc Randazza: The Mark of Excellence (George M. Wallace at Declarations and Exclusions)
• Marc Randazza: 1st Amendment Lawyer Exemplar (Keith Lee at Associate’s Mind)
• Marc Randazza: Super Lawyer, Super Blogger? (Eric Turkewitz at New York Personal Injury Law Blog)
• Marc Randazza: A Sentinel for Free Speech (and other articles about Randazza by Canadian lawyer Antonin I. Pribetic)
• Marc Randazza: Why I Went To Law School (Jordan Rushdie)
• Marc Randazza: First Amendment Badass (Mark Draughn at WindyPundit)

So if you’ve got a legal problem involving copyright, trademark, speech or some other Intellectual Property, First Amendment, Internet, or Entertainment Law issue, ask yourself this: “If we — his fellow lawyers — recognize Marc Randazza as unrivaled in his area of practice, why would you turn to anyone else for help?”

Marc Randazza, Legal Gladiator

Comments

• March 15, 2012, Marc Randazza: First Amendment Badass | Popehat writes: [...] The Time I Unleashed Marc Randazza On The ABA Marc Randazza, Hero Marc Randazza Would Support Me, Right? Righthaven, Liquified Marc Randazza: The Mark of Excellence Marc Randazza: 1st Amendment Lawyer Exemplar Marc Randazza: Super Lawyer, Super Blogger? Marc Randazza, First Amendment Lawyer, on the Rush Limbaugh Fiasco Marc Randazza: A Sentinel For Free Speech Marc Randazza — First Amendment Badass Marc Randazza: Why I Went To Law School Marc Randazza Marc Randazza, The First Amendment's Finest Friend [...]
• March 16, 2012, Marc Randazza, Driving the White Caddy « UNWASHED ADVOCATE writes: [...] Marc Randazza — First Amendment Badass Marc Randazza: Why I Went To Law School Marc Randazza Marc Randazza, The First Amendment’s Finest Friend Rick Santorum v. Marc Randazza: A Dichotomy of Zealotry Praised Be Marc Randazza Marc Randazza – [...]
• March 19, 2012, Aj writes: Mr. Horotwitz, I have a question regarding criminal defense, is there an email address I can reach you at?
• March 19, 2012, Rick writes: There is a "Contact" option in the menubar at the top of every page. You can use that to send me an email. Also, every page has my phone number in the menubar and at the bottom of the page. My phone number also appears on the main page. Please be advised that I do not provide legal advice to non-clients via email. If you have a legal question, you will want to contact the office to arrange an appointment for a consultation in the office.

Related posts:

• The Urologist & The Hair
• Wars on Desires
• For Our Safety

There. I said it. Now you know where I stand.

At the same time, I am a criminal defense attorney who represents people who are often unfairly targeted and unfairly charged in a system that is fundamentally unfair.

Unfair, wrong — hell, let’s call it what it is: EVIL.

But you like it that way.

There is a minor ripple in the blogosphere right now. It was caused by an article in the New York Times: a call to “Crash the System” by having everyone refuse plea bargains and go to trial.

To read the blogs of some of my friends, you’d think some idiot attorney with nothing to lose came up with the idea.

That’s not the case. The author of the New York Times article, a civil rights attorney with a book out which itself constitutes an incredibly-powerful indictment of our criminal system, though she clearly appears to support it, is not the woman who made the suggestion.

The woman was Susan Burton, who knows a lot about being processed through the criminal justice system.

Susan Burton is not an attorney. She is a victim of the system.

And she’s right.

Norm Pattis doesn’t think so. 

Good criminal defense lawyers work to create options for clients in crisis. Plea bargaining is the dark work of the possible, done outside public view, with aims other than justice in mind. The suggestion that individual clients commit what will amount to individual and collective suicide to crash the system is a dangerous pipe dream. No decent criminal defense lawyer will entertain the thought. I am surprised Ms. Alexander did so.

Neither does my other friend, Gideon. 

Because our clients are often guilty and more than that will be found guilty by juries. They will be sentenced more severely than if they’d taken a plea. That is reality. A reality that we, as lawyers, don’t have to live. In this pursuit of wreaking havoc on the system, thousands will end up in jail, their lives ruined, their families’ lives ruined. Our job, primarily, is to serve the interests of a client. There may be times when a client’s desires provide a forum to take a stand against the rigged system. But unless that happens, it is a disservice to suggest that we disregard the consequences of our holy struggle in pursuit of an elusive fix.

I’m going to disagree with both of them. As Bobby G. Frederick notes, apparently agreeing with Susan Burton the Victim of the System,

Some of us complain about the steady erosion of our Constitutional Rights – but how can we complain when no one exercises those rights? Use it or lose it. The norm across the country is to waive our constitutional rights, so why shouldn’t we lose them?

Both Norm and Gideon have some valid points. Both discuss the impact on the freedom of individuals who would fight the system — at least their freedom of movement. Both correctly point out that those who choose to fight for their rights will suffer.

It has ever been so. When the first white Americans — I can’t simply say “first Americans” since the first Americans fought both the British and the first white Americans, and they weren’t fighting to establish the U.S., but to protect themselves — fought to establish this country we’ve inherited from them, they suffered. Hell, they didn’t just risk their freedom: they risked their very lives.

But the suggestion of bringing the system to its knees — crashing the system — is not as crazy as my friends make it sound. I advocated a similar position regarding the juvenile court system in my area to change their policy of shackling all juveniles who came to the court. Before I woke up and — in response to a comment a judge made about not allowing me to do in his court what I’d done in others — drew a line in the sand, it did not matter if a juvenile was 10 years old and charged with a misdemeanor: if he came to the juvenile court, he was coming in shackles.

Once I woke up — once I got pissed off about it — we drew a line in the sand. I was not completely alone in this: other attorneys began doing it, too.

And the system came to a screeching halt. Partly because the court’s approach was ass-backwards, as is the norm with our prosecutors in black robes that run them, they continued allowing the sheriff to bring the kids to court in shackles, and we had to have an evidentiary hearing to get them released. This is exactly the opposite of what California law requires, but why the frack should a trial judge in Fresno, California, care what California law says?

At any rate, hearings that might otherwise have lasted between two and five minutes were suddenly taking anywhere from an hour-and-a-half to three hours to resolve. Again, this is because of the ass-backwardness of the judges, who had a policy of allowing the sheriff one hour after a challenge to try to invent a reason that might justify shackling. Add to that the time for the hearing and cases were not moving.

Today, the default policy in Fresno juvenile courts is reversed: juveniles are brought to court without shackles, unless there is some particularized reason such as fighting on the way to court to justify the shackles.

Nor did it take long to get there.

To be fair, there is a difference between what happened in the juvenile court system here in Fresno and what Susan Burton proposes. For one thing, the juveniles were not risking the same thing as those who would have to fight the plea bargaining system. In one of the shackling motions I handled, there were three co-parts (in juvenile court, we use the term “co-participant” instead of “co-defendant,” which is the term in adult courts; it’s supposed to indicate that the juvenile system isn’t as barbaric as the adult system). The attorneys for the other two co-parts refused to join my motion to remove shackles. As I mentioned, it prolonged things. In reality, they had nothing to lose, except their clients’ comfort and trust. But if I had lost, the only danger was that my client, like theirs, would have remained shackled. When I won, my client was unshackled, while theirs remained in shackles because they had not joined the motion, nor objected to the shackles.

But here’s a question to those attorneys who think their clients are better off with plea bargains: do you really have your clients’ informed consent to plead them out?

Informed consent means that you have fully and completely explained to your clients what will happen to them if they accept the plea agreement. You have a responsibility to ensure that they “get it,” too. None of this “here’s the offer from the district attorney if you take it you get to go home now butcannevervoteagainownagunagainrunforpublicoffice buyahousegetagoodjoboranyoftheotherthingsnormalhumanbeingstakeforgrantedinitialeachoftheseboxesandsignthis form” bullshit.

If you really believe what you say, Norm, you have to explain to your clients who will accept plea bargains other than the fabulous misdemeanor offer mentioned in your blog post what it means to be “marred for life as a felon.” (I don’t know if that was supposed to say “marked” or “marred.” Either one works here and “marred” works better, although you don’t normally hear it that way.)

Pay attention, Gideon, and you’ll notice that the idea did not “originate from the mouth of a non-practicing academic: one who operates only in theories and not in the harsh realities of being in the trenches.” It originated from the mouth of a woman who, unlike you, slogged through those trenches and lives with the consequences of it every day of her life. In discussing plea bargains, do you tell your clients the ways they will suffer — as she did — after the custodial portion of their sentence has been served?

How many people would fight, rather than take a plea, if they knew what the rest of their lives would be like because of their decision?

If you don’t explain what will happen after incarceration, you cannot claim to be looking out for your clients’ interests, because you don’t know whether you are, or are not.

My disagreement over whether the idea proposed is crazy — and possibly over what needs to be explained to people considering a plea “bargain” — notwithstanding, Norm and Gideon are right about this much: the risks are horrendous. For one thing, unless a goodly portion of people refuse plea bargains, they will simply suffer an extended incarceration period without any real benefit. Because as Michelle Alexander pointed out to Susan Burton — and as Norm, Gideon, Bobby, me, and thousands of other criminal defense attorneys would agree — well…

“The truth is that government officials have deliberately engineered the system to assure that the jury trial system established by the Constitution is seldom used,” said Timothy Lynch, director of the criminal justice project at the libertarian Cato Institute. In other words: the system is rigged.

Not only will those who fight back in the absence of an organized and concentrated effort to deliberately overload the system spend more time in prison, they will still suffer the post-incarceration consequences Ms. Burton suffered.

Sadly, the real reason Susan Burton’s suggestion is unlikely to succeed is because too many innocent people have been taught to accept the status quo as unchangeable. This includes those charged with crimes and those who advise them. No longer we, the People — the only appropriate label is “we, the Sheeple.”

This is exactly what the system depends upon. This is exactly what those in power have sought to shape.

And it is all they care about. I do not believe it is an accident that voting is one of the “disabilities” one suffers after a felony conviction. As another academic, Alexandra Natapoff, points out in “Misdemeanors,”¹ there are approximately one million felony convictions in the United States each year. Take away their voting rights and you’ve taken away their ability to fight back as society turns them into a permanently-exploited underclass.

Yet, stop. Think about that. Approximately one million felony convictions each year. And, incidentally, approximately ten-and-a-half-million misdemeanors a year.

Just how fast do you think the system will come crashing down if even a fraction begin to refuse plea bargains?

In the end, the choice is not for timid attorneys to make; the decision on whether or not to accept a plea agreement rests by law, as it should, with the individual client. It may be that, fully informed, a majority of our clients will voluntarily join their ranks, not bothering to fight even what may be unjust charges.

But that’s a choice each client — properly informed — has to make for themselves and not because their defense attorneys are squeamish about the outcome.

Comments

• March 11, 2012, Gideon writes: See, I think you're framing the discussion differently. The idea that everyone should refuse to plead and go to trial and thus bring the system to a halt is stupid, dangerous, unrealistic and impossible. The idea that we should not be afraid to try cases and work a little harder for our clients is a valid one. The two ideas are vastly different. I cannot tell a client who has a mountain of evidence against him, who is facing 40 years in jail and whose offer is 3 years to go to trial. That's malpractice. What she's advocating is borderline unethical. Heck, it might even be over the border.
• March 11, 2012, Gideon writes: And yes, I paid attention. And yes, I tell my clients of the consequences of their pleas. That's what good lawyers do. Good lawyers also don't put their interests before those of their clients. Not all clients' interests are the same. It's our job to recognize that and serve them, not make them the poster-children of a nuclear holocaust.
• March 11, 2012, Rick writes: I'm not so sure about that. I think if you want to compare extremes, then you'll possibly win the argument, just like anyone who builds straw men wins. There are a whole lot -- a whole lot -- of people who are charged with crimes for which there is some evidence, possibly even "good" and "strong" evidence, of their guilt for whom nevertheless there is still not a slam-dunk of a win for the prosecution. Too many of those people are convinced to take the agreement because they'll do less time in prison that way. If every one of those cases were fought, that would be enough to bring down the system. But too many people are frightened off because the trade-off, due to aggressive "three strikes" and other "tough on crime" laws, is typically going to be probation, or a short-term in prison, versus a long term. I'm saying these people should fight back, because the truth is that if they don't, their lives are over anyway. Where I live, convicted felons might as well have targets on their backs. No matter how well they do, the police will continually harass the crap out of them and they won't be able to do more than eke out a shitty living ever again. However, Susan Burton -- the woman who actually made the suggestion -- is right: even the guilty people whose cases are slam dunks for the prosecution, if they took up this "cause" in enough numbers, would crash the system. There would be nothing finer in America than to see the criminal system collapse under its own weight. With that, there would be no reason not to refer to it as a justice system. Because that would, indeed, be justice. Those Americans who think what we're doing with the creation of a new exploitable underclass would get exactly what is deserved.
• March 11, 2012, Gideon writes: No, it's not a strawman. It's taking her words - or the author of the opinion piece's: everyone should refuse to plead. And what of the person against whom there is good evidence? Isn't going to trial always a risk? If the client wants to make an informed decision that they should plead despite the 30% chance of success, that's a valid choice for them to make. For us to tell them to forgo that choice so we can "crash the system" is nigh irresponsible. The system crashing - if it even happens - may work for defendant number 2000, but of the 1999 before him? My job is to secure the best possible outcome for my client. If you practice regularly in criminal court, you know that isn't regularly going to come via a trial. It's dangerous to think otherwise.
• March 11, 2012, Rick writes: Once the system crashes, it crashes. I practice in criminal courts nearly every day. Here's the thing about that, too: recently, I've gotten pissed off. Though I tell my clients what I think their chances really are, I also make sure they understand what's going to happen to them after they accept the agreement, including what's going to happen after they are released from custody. I've also started offering really low rates for those who want to fight back with a trial, as I discovered finances were factoring into the equation too much (and people are scared shitless of public defenders and will stupidly hire even the worst attorney before staying with a public defender). Point is, there are people who aren't fighting back, who should, but they are thinking only of "how much time am I going to get." There's more to a felony conviction than the time in custody. I don't see things the same way you do -- neither does Susan Burton, neither does Michelle Alexander, neither does Bobby Frederick from what I can tell, neither do a growing number of attorneys to whom I've spoken. Of course, I happen to support the violent overthrow of the current system, because I think we've reached the point where the only way the system is going to ultimately be brought down is if citizens start shooting those who comprise it, which even most of the people I just named probably think is wrong. (I believe we are going to reach that point in my own lifetime, because a portion of our country is actively working to subjugate the rest by using the legal system to strip them of all their rights, while a bigger portion stands by and allows it. The exploited portion is eventually going to get tired of it and realize that when they shoot at each other, they're shooting their allies instead of their enemies. One day they will learn: their real enemies wear uniforms.) The system is, as I put it in my post, EVIL. And it needs to be brought down by whatever means are possible. Each person charged with a crime has to make their own choice after being fully informed of what they are up against. I don't think you're doing your job if you think "less time" is still the "best possible outcome." Ten years, twenty years, what's the difference if when you come out you have to live under a bridge or in a sewer pipe, as increasing numbers of people in America are doing already? Tell your clients what their life will be like after they are released and see if that doesn't change the equation.
• March 11, 2012, Gideon writes: Hey, look, I can make broad sweeping assumptions too! If you're telling clients to go to trial who have no business going to trial, or telling them to go to trial because you want to crash the system and not because it's in their best interests to do so, you're being unethical. Simple. Sure, you want to bring down the system. By whatever means necessary. And those means now seem to include the welfare of your clients. You're either being intentionally obtuse or practicing with blinders on if you don't think that in the vast majority of cases, "the best possible outcome" is "least time in jail". What good are collateral consequences if they're going to spend 30 years in jail instead of 5 or 2? Stop playing with other people's freedom for your war.
• March 11, 2012, Rick writes: I actually don't make decisions about plea bargains. My clients do.
• March 11, 2012, Alice Harris writes: Fascinating discussion. What we have to remember, and what makes the system keep working, is our ethical responsibility to our current clients. It might be brilliant & supremely effective to crash the system with trials of every case, but the individuals would be sacrificial lambs. Not a good outcome. The ethical thing for the public defenders & other criminal defense lawyers is to be wise enough to set the right cases for trial, to file demands for speedy trial when we know the state can't prove their case, and to settle the cases that need to be settled with pleas. Equally critical is to tell our naive clients the truth about the consequences of entering the plea that will get them out of jail today AND the consequences of going on probation when they have no job, no driving license, no stable place to live, no public transportation and a drug addiction! IMHO we don't set nearly enough cases for trial, but we have to try the right ones.
• March 11, 2012, Gideon writes: Rick: You don't and you shouldn't. But lest you forget, it's your job to give your client advice, not just lay out the options. And if you're advising trial when they should be pleading, it's a bad move. Alice: I thought that's what I've been saying since this morning.
• March 11, 2012, John Regan writes: Frankly I can't see how anyone would even seriously consider this idea unless lawyer strikes had been tried and failed. Nobody seemed to like that idea, though, even though it's done in other countries. Certainly the New York Times took no notice. In a lawyer strike there is no risk to the client, only to the lawyer. Gums up the system just as badly if done in any numbers at all. I wouldn't play Russian roulette with someone else's life, or encourage them to do so. I can relate to the frustration, though.
• March 11, 2012, John Kindley writes: I had a young 20 yr-old client who was offered a choice between pleading to a felony with no jail time or pleading to a felony with future misdemeanor treatment after six months in jail. He took the jail. I guess it was a no brainer but it still took some guts to accept the jail, and it's sad that not only the government but society in general is so prejudiced against felons as to make this a wise decision.
• March 11, 2012, John Kindley writes: Just one major problem with this boneheaded Idea: most criminal defendants believe in the justice system more than their lawyers do. They have no interest in crashing the system.
• March 12, 2012, Rick writes: Well, I guess the best thing is to just keep imprisoning more people than all of Europe combined. We'll hang onto our record for refusing to deal with mental health problems, racism and poverty in a rational fashion and instead just lock up people we don't like or otherwise want to deal with. The day will come when the system will crash violently, instead of because of being tied up in too many cases. I just hope we remember that we had a hand in bringing that about when it happens. P.S. Meanwhile we're ruining more than a million lives a year with the current system.
• March 12, 2012, Joshua writes: One-year summary probation is great. A small fine with no probation and no jail term is even better. But they all show up as "misdemeanor petty theft" on a background check. I work in South LA. All my clients have a criminal record. A substantial number of them had imposition of sentence suspended and were given probation. Some went to prison. Others spent a few days in jail. The so-called "collateral consequences of a criminal conviction" do not depend much on how many days one spends in jail or if s/he went to prison. Do you really think that employers will delve into the particulars of a job applicant's sentence? For most employers (and now increasingly landlords), it's enough that the applicant has a record--of any kind. Title VII supposedly protects against this type of blanket discrimination. In theory. PS: I don't think Michelle Alexander is advocating for this. Susan Burton is, as Rick points out. And Susan Burton isn't asking criminal defense attorneys to do the persuading. She wants to persuade the community to stand up and fight. Yes, with individual sacrifices. I fear, however, that well-meaning criminal defense attorneys--in the name of zealous advocacy and best interest of the client--stand in the way of a new civil rights movement.
• March 20, 2012, Mark Hough writes: I fully agree wit the author of this topic/report, whatever. Plea bargaining is a fix for the prosecution. The bottom line is this. Either your guilty or you're not. The system is full of innocent people who were really given no other choice other than to plead guilty. Also, Plea bargaining is a "Fraud" because you do not always get what you bargained for. I know I am a victim of the same. I gave up on this corrupt system along time ago. My focus is on those who partook in my prosecution. Revenge is sweet.
• March 23, 2012, Such a Deal! | RHDefense: The Law Office of Rick Horowitz writes: [...] I wrote just a short time ago, I am not a big fan of plea agreements. I have always considered them, as [...]

Related posts:

• Such a Deal!
• Let’s Make A Deal
• Immigration, Deportation & Criminal Defense

1. Natapoff, Alexandra, Misdemeanors (February 24, 2012). Southern California Law Review, Vol. 85, 2012; Loyola-LA Legal Studies Paper No. 2012-08. Available at SSRN: http://ssrn.com/abstract=2010826

With regards to medical marijuana dispensaries, there may finally be a little pushback from the appellate courts, even if they don’t make much more sense interpreting the law than the trial courts. 

If there was ever any doubt the Legislature intended to allow medical marijuana cooperatives and collectives to dispense marijuana, and we do not believe there was, the newly enacted [sic] section 11362.768 has made clear by its repeated use of the term “dispensary” that a dispensary function is authorized by state law.¹

So far, so good.

The core of Evergreen contains within it something we — that would be me and other medical marijuana defenders — have been trying to tell cities and counties for some time now: they cannot ban what State law expressly allows. The law expressly allows medical marijuana dispensaries to exist; an outright ban on dispensaries  by local governments conflicts with State law and is therefore not possible.

Unfortunately, the core of Evergreen contains a very bizarre interpretation of the Medical Marijuana Program Act which, I suspect, means that Evergreen will not long be a citable case. For two reasons, actually, I expect the California Supreme Court to take it up for review. And, as anyone who knows how the law works can tell you, that means the case will no longer be citable as law and we’ll have to wait to see what the California Supremes say about it.

Which could take awhile.

It is the secondary core element which causes the problems I think will result in a Supreme review. The secondary core element of the new law — and trust me, this is actually new law, created by Evergreen – for dispensaries is this:

[W]e conclude off-site dispensaries are not authorized by California medical marijuana law because nothing in the law authorizes the transportation and possession of marijuana to stock an off-site location.

If that’s not clear enough for you, here’s another quote:

We discern no intent in the MMPA to authorize dispensaries to operate independently from a cultivation site.

How they get there involves an interesting leap of faith, some twisted logic, and — for a court that did not want to get into the pre-emption problem because the issue was not properly before them² — the task of separating dicta from what might actually be part of the (again, twisted) argument in support of this holding.³

Before I go farther into that thicket, however, let me explain why I think the courts are having a tough time “interpreting” California’s medical marijuana laws.

You might think that the number one reason California courts are having a tough time interpreting medical marijuana law in California is because the medical marijuana laws in California are poorly written. There is some truth to that, but that is not the real reason. To a certain extent, in fact, the medical marijuana laws are only “poorly written” because of the real cause of the difficulty the courts face.

The real difficulty here is that the authorities do not want marijuana decriminalized. At all. Not even for medical reasons. Not even for those Americans whose suffering is unequivocally shown to be relieved by marijuana. These authorities, which include everyone in the federal government, nearly all those in California’s local governments, many of those in California’s state government, and almost all (but not all) law enforcement agencies, don’t want people using marijuana. They did not pass laws making medical marijuana readily available to seriously ill Californians. The voters did.

And, as we should all know by now, the only time anyone gives a shit what the voters want is in the run-up to an election. Even then, they simply tell people what they want to hear; in the normal course of events, nothing substantive ever comes of it.

The medical marijuana laws for the State of California qualify as “poorly written” only because their authors were not precogs; they failed to recognize the extent to which the authorities would go in resisting the decriminalization of medical marijuana. One of the earliest examples — demonstrating that even the courts would only grudgingly support the will of the voters — came in the case of People v. Trippett, where the court suggested that someone could be charged with a felony for transportation of marijuana if they carried the weed down a hallway to a patient’s room.⁴

Ok. Maybe that’s strictly-speaking true, but only for someone bound and determined to harass medical marijuana users and their supporters. Anyone with a lick of common sense is going to say, based on the obvious intent of the electorate, that the medical marijuana laws don’t envision that possibility.

As I said, the drafters were not sufficiently-developed precogs.

This same attempt at a literal reading of California’s medical marijuana laws pervades law enforcement. “Well, the law says x,” where x is some specific word, or phrase. “The law does not say y,” where y is some obvious implication of x – utilizing the kind of common sense that is common to everyone who considers the stated purposes of California’s laws in a non-adversarial manner. If you take an honest look at why the voters passed the laws they passed, and apply the laws with that in mind,  you don’t end up with stupid results like charging a caregiver with felony transportation for carrying marijuana from the kitchen to the patient’s bedroom.

“But the purposes are not the law,” you will hear the authorities (including courts) say. “If the People had wanted y, they should have made the law say y.”⁵

Supreme Court Justice Antonin Scalia is often called a “strict constructionist.” In several speeches I’ve listened to, he states:

I am not a strict constructionist. I never use that term. I think strict constructionists give a bad name to those of us who are originalists. The Constitution should not be construed strictly. It should not be construed sloppily. It should be construed reasonably. If you were a strict constructionist, you would presumably think that Congress has the authority to censor handwritten mail inasmuch as all that the First Amendment protects is the freedom of speech and of the press. A handwritten letter being neither speech nor press, it may be cen–of course that’s not what the First Amendment means. “Speech” and “press” are stand-ins for the full range of human expression. And it doesn’t matter whether the expression is in handwriting, or semaphore, or Morse code, or burning a flag.⁶

What the Fourth Appellate District is doing in Evergreen is abandoning any reasonable interpretation of the statute in favor of a perverse and inconsistent “strict constructionism.” This is particularly clear from the language in the subsection titled “Procedural Posture, Evergreen’s Contentions, and Civil Code Section 3482″ of the Evergreen opinion.⁷

Statutory immunity for an alleged nuisance arises “only where the acts complained of are authorized by the express terms of the statute … or by the plainest and most necessary implication from the powers expressly conferred, so that it can be fairly stated that the Legislature contemplated the doing of the very act which occasions the injury.⁸

In that subsection and in the next one titled “Standard of Review,” the court repeatedly uses words like “exactly what was lawfully authorized” and “scrutinize the statutes” and “powers expressly conferred.”⁹ The court also states:

[W]e ascertain the Legislature’s intent “with a view to effectuating the purpose of the statute, and construe the words of the statute in the context of the statutory framework as a whole….”¹⁰

They then go on — in a strict constructionist fashion as opposed to any reasonably interpretation — to decide that the Legislature made dispensaries legal, but only when the dispensary exists at the grow site.

Reduced to its essence, this statewide plan envisions locally-grown, locally-accessible medical marijuana. As we explain, that does not mean medical marijuana patients or their primary caregivers are confined to individualized efforts to grow a supply of their own medicine. Rather, they may band together with others to meet their need. But they must do so locally, in local cultivation projects, with distribution tethered to the cultivation site. ((Id. (emphasis added).))

Ultimately, the court says,

[W]e conclude a dispensary may be located at the site where its members collectively and cooperatively cultivate their marijuana.

And, furthermore,

Marijuana stocked at an off-site dispensary inevitably would exceed the amount authorized for any single medical marijuana user because, simply put, opening a dispensary as an outlet for only one person would be pointless.

The court does not explain how that analysis differs if the amount of marijuana stocked at the on-site dispensary exceeds the amount authorized for any single medical marijuana user. Apparently, the court believes that its analysis of Health and Safety Code section 11362.775 means on-site dispensaries are exempted from this analysis, but off-site dispensaries cannot be.

This is not completely outside the realm of possibility if, as I have already noted, you try to impose a strict constructionist, anti-medical-marijuana view on California’s medical marijuana laws, instead of following a reasonable interpretation. Read through the court’s opinion a half-dozen times, as I have, and you almost begin to believe it.

Yet that this is not a reasonable interpretation is shown by the fact that no other individual — not even law enforcement officers or local government officials who look for every loophole to shut down dispensaries — and, more importantly, no other court has come to this same analysis.

Therein lies another reason I believe this case will ultimately be taken up for review. It pretty much has to be taken up by the California Supreme Court, if for no other reason than to address the split in authority this case creates.

The split in authority comes because just about a week before Evergreen was decided by the Fourth Appellate District Court, the Second Appellate District Court reached a different conclusion in another case — Colvin – regarding the protections provided by the Medical Marijuana Program Act of 2004.¹¹

Simply stated, Colvin co-owned and operated two geographically separated medical marijuana dispensaries. At least one of those dispensaries is located at a grow-site, based on the facts stated in the case, but as I will show in a moment, that does not prevent Evergreen from constituting a split of authority.

The sites in Colvin deliberately keep small quantities of marijuana at the dispensaries to discourage robberies. Colvin had just left one of the dispensaries where he presumably dropped off some marijuana and was transporting one pound of marijuana to the other dispensary when he was stopped and arrested on the transportation charge.

The Second Appellate District Court held,

The court found that Colvin was a qualified patient and that he was operating a “legitimate” “dispensary.” [footnote deleted] If Colvin, a qualified patient, was operating a legitimate medical marijuana cooperative, then he “shall not solely on the basis of that fact be subject to state criminal sanctions under” section 11360 (transportation or sale of marijuana).¹²

The Second Appellate District Court also stated:  

It is unclear what the trial court meant when it said that Colvin’s transportation of marijuana was unrelated to the cultivation process and was outside what section 11362.775 allows. There was no evidence that Colvin’s transportation of one pound of marijuana was for anything other than Holistic. To the extent the trial court ruled as it did because it believed that only cooperative or collective cultivators of marijuana can transport the product, Colvin/Holistic is a cultivator: Holistic has three onsite “grow rooms,” which the LAPD visited. Fourteen members of Holistic also grow marijuana for Holistic offsite. All of the marijuana Holistic distributes is from a cooperative member; none of it is acquired from an outside source. Thus, even under a reading of section 11362.775 limiting transportation of marijuana only to cooperatives that cultivate it, then Colvin was entitled to the immunity.¹³

At first blush, this paragraph might appear to erase any problems regarding a split of authority between Colvin and Evergreen. It does not because the clear statement of the Fourth Appellate District Court in Evergreen is that someone like Colvin, transporting marijuana away from the cultivation site when that marijuana was not for his personal use alone, would not be protected by Health & Safety Code section 11362.775.

Nowhere else does the MMPA address transportation, except in section 11362.775, which allows for transportation of medical marijuana in collective amounts at the cultivation site, as discussed. ((Evergreen, supra. (italics in original; underlining is mine).))

Evergreen says cultivators are protected while transporting marijuana only around the grow site. Colvin says they are protected while transporting marijuana for the collective when the collective itself is a “legitimate medical marijuana cooperative.”¹⁴

Ergo, we have a split of authority.

Now, it is possible that the California Supreme Court will take Colvin on review, leaving Evergreen intact. I don’t think that’s the best course of action myself, but I’m not — unfortunately for medical marijuana users — a California Supreme Court Justice. (Nor am I ever likely to be appointed to a judgeship even at the lower court levels.) The California Supreme Court may like the strict-constructionist-anti-reasonable-interpretation approach to medical marijuana law better.

Even if they do, though, I think they are better off taking up Evergreen. The logic of Evergreen is sloppy and tortuous and full of dicta. I would argue that’s because it is a strict constructionist approach — and a dishonest one at that. There is no more reason to believe that the Legislature intended to restrict cooperatives to cultivation sites than there is to believe they did not intend such a restriction. The Fourth Appellate District Court imposes its own view, inferring such a restriction by essentially “reading between the lines.” But the view of the Fourth Appellate District Court essentially ignores both the purpose of California’s medical marijuana laws and the way cooperatives, or collectives, normally operate — and I’m not talking about “medical marijuana collectives”; I’m talking about “collectives.” Period.

The bottom line on this is essentially the same as what I wrote in my article “When Law ENFORCEMENT Doesn’t Like the Law.” When it comes to medical marijuana and dispensing under the law, the authorities would rather dispense with the law. The more resistant the powerful elite — including the judges of our courts — are to the desires of the voters, the more carefully the law must be written because we cannot count on the courts to do a reasonable interpretation.

“Strict construction” is the last bastion of the tyrant.

Comments

• March 4, 2012, Carole writes: Rick, I'm so surprised that you missed correcting the grammar error in the second line. It should be "...know more than I,..." and not "...know more than me...". You do it again later, but I didn't go back to find it. I'm shocked! Kiss, kiss, love you - I didn't write this comment for posting, so please erase it, don't display it.
• March 4, 2012, Rick writes: I hate to be the one to tell you, but you were incorrect in your post — and I didn't catch it until now so I don't know if I should remove it, but I feel like I can't because of my driving need to educate certain writers for whom I have a great deal of love (and who should appreciate my use of "whom" in that last phrase). Which makes the whole thing more interesting anyway. At any rate, as I will argue below because I am a prepositionist, you are wrong. ;) The rule is that "me" is the correct form of the personal problem when used as the object. English teachers in certain parts of the country (the south and east, if I remember correctly) teach students to incorrectly to say "I" in constructions like that because they thought it more proper. In actuality, it sounds pretentious. If you read the article I linked above, though, you will know that this is a fight which has been fought for a long, long time. And, as I said, I happen to be a prepositionist. (Seriously.) I really do know this stuff. :) And that's the sort of thing that allows you to make — or break — your own rules, as I did in the first paragraph when I used (to good effect, I think) an incomplete sentence, which is also a no-no.
• March 4, 2012, Christian Noll writes: Police have always used their discretionary powers to suit their political needs, or that of their friends. "Justice" rarely has much to do with it. This from vtdigger.com Once again our besieged fourth amendment. http://vtdigger.org/2012/03/02/house-panel-approves-bill-that-would-give-police-indirect-access-to-drug-database/
• March 4, 2012, Carole writes: I hate to be the one to tell you this, but I am not incorrect. All you need to do is add the implied verb to the end, and you can immediately see that "...know more than I do..." is correct, and that "know more than me do..." is not correct. Notwithstanding your attempt at an excuse by calling yourself a prepositionist, and the fact that, indeed, it does make me sound a bit pretentious, the use of "I" is the correct choice. However, we must agree to disagree, as this fight has been fought for decades between folks much wiser than you and I (see how I've done it again? Just go ahead and add the verb "are" at the end, and you'll agree that it could never be "you and me". In the sentence.) I don't know if the certain writers you wish to educate are reading this series of posts, and frankly, since I asked you not to post this, I'm surprised that I am reading this here. What I said before was just in fun. What I really wanted to comment on earlier, but time got away from me, was the topic of medical marijuana. I do not have a prescription for this and do not use it. I have serious issues with nausea, appetite, and thus problems with proper nutrition, following more than a year-long battle with cancer, which has included four surgeries, many various treatments, and so much medication I need to carry lists in order to remember what they are and discuss them with my medical team. I have not taken any steps toward getting a prescription for medical marijuana, even though it might be very beneficial for me in my condition, due to the issues you have discussed at various times in your blog. I have great sympathy for the people who really need this, the people who grow it for themselves and others in need, and the people who operate dispensaries, and find it .(...I'm looking for the right word..."frustrating" doesn't scratch the surface but will have to suffice...) frustrating that police will continue to ignore laws that they find inconvenient. Or we could go back to discussing how wrong you are in using "me", when clearly it is "I" that is correct. ;-)
• March 4, 2012, Carole writes: PS - I thought you were able to review and approve a comment before it was posted - yes/no?
• March 5, 2012, Rick writes: Once I've approved a poster in the past, they can post without needing approval in the future. So you posted the comment. I didn't see it until hours later. By that time, I was concerned that if I took it down, it would look like I was censoring commenters and discourage others from posting. Unless something is clearly spam, or obviously quite nasty, I leave it up, as I'm sure you've noticed in the past. Since your comment wasn't in either of those categories, and gave an opportunity for us to have some fun (at least, I think we had fun!), I left it up. Again, I didn't want some people who might have seen it to think that because you said I made a misteakanation that I took it down. Anyway, as you and I both agree that this argument has been going on for a long time, we're going to have to agree to disagree. So, in the end, I think you agree with me. ;)
• March 5, 2012, Carole writes: Tricky!
• March 8, 2012, Aj writes: Mr. Horowitz, Second year law student down here at Mississippi College, currently interning with the Federal Public Defenders and planning on practicing Criminal Defense after graduating. Found this blog, and gotta say I am addicted, and learning a ton. Keep up the great writing, and best of luck with your continuing practice Aj
• March 8, 2012, Rick writes: Thanks very much for your kind words. I wish I had more time for writing blog articles and it's encouraging to know people are getting something from it. It gives me the encouragement to keep writing. Best of luck to you in your studies. Soak up what you can from the Federal Public Defenders! THAT'S a great opportunity for you!
• March 9, 2012, Aidian writes: I dunno, the decision in evergreen does sound a little tortured, but it actually does seem in line with my (layman's memory of) both the text and the intention of Prop 215 & SB420 (I love that the enabling legislation was SB420... f***ing priceless!). Those measures allow collectives and dispensaries, sure, but by collective they mean something like "several medical marijuana patients setting up a garden together" not "the corner pot store." Then AG Jerry Brown's office issued guidelines on the topic in 2008: http://bit.ly/yhYvwz I would suggest that while the Evergreen court may have taken strict constructionism to a whole new level, defending the wild west of 'medical' marijuana as legal requires an equally tortured stretch in the other direction.
• March 9, 2012, Rick writes: I don't know how you can say that when the legislation clearly states "dispensaries" are legal, using that term, and nothing in the legislation states "and those dispensaries must be located at the garden" (to add your term). Surely if the legislators wanted the dispensaries to be located only at the garden, they could have said so. Furthermore, until now, no one -- not any other individual, not any municipality, and not any other court -- has taken the legislation to mean that the dispensary could only be located at the grow site. Given how hard the municipalities wish to limit medical marijuana dispensaries, you'd think if the legislation indicated this limitation was possible, the municipalities would have jumped on it. This is particularly true in places like LA, where I assume it would make it more difficult to put a dispensary in some of the districts where they are currently located. Yet, as I point out in the article (and this comment), until now no one has come up with this idea. That the legislators were very able to say what they meant is demonstrated by what the law says about "making a profit." The language of the statute indicates that the statute itself does not "authorize" the making of a profit. As the bill's sponsor points out, the phrasing was very deliberately chosen. No legislation ever authorizes any business in California to make a profit. It doesn't have to: businesses exist to make profits. The wording in the legislation came about because there were proponents for both the idea that profits could not be made and for the idea that profits could be made. The legislators wanted to support neither side and therefore worded the legislation to indicate that the legislation itself, by itself, did not indicate that a profit could be made. But, as Vasconcellas points out, that doesn't mean a profit cannot be made. And, in the normal way of business in California, that means that profits can be made: it's just not specifically "authorized" by the legislation. That is, the legislation doesn't add (or subtract) anything regarding profits. If the legislators could be that careful in their choice of words for profit-making, I'm pretty sure they could have added "dispensaries must be at the grow sites only," if that's what they meant.
• March 9, 2012, brenda A. Linder writes: Relevant points and observations. Although the Vasconcellas letter has not as of yet received a great deal of attention, I think the issues raised in that letter will be the next area of debate in the courts. The next time local authorities "raid" a dispensing collective under the guise of looking for evidence of "profiteering" I suspect the Vasconcellas letter will be at the center of the operator's defense. By the way, I would love to comment here more often but I understand this is the primary place of business of the Internet Grammar Police.
• March 15, 2012, Medical Marijuana writes: In the US alone, enforcement of cannabis prohibition costs taxpayers around $10 billion each year. If it was taxed and controlled like alcohol, cannabis sales could generate an estimated $6.2 billion in yearly tax revenue. Cannabis has also been shown to ease symptoms of people with HIV/AIDS, cancer, multiple sclerosis and many other medical issues. It has been successfully used to TREAT nausea, appetite issues, glaucoma, muscle spasms, and many other types of pain. In 2010, nearly 45,000 Americans were serving time in state and federal prisons for nonviolent cannabis possession. In that same year, over 700,000 Americans were arrested for the same crime. The estimated total cost to the taxpayers is $9,000,000,000 The arguments for weed are endless: (1) It's impossible to overdose and there is no hangover; (2) People don't get violent when they are on weed like they do on alcohol; (3) Its smoke is not carcinogenic (cancer-causing) like cigarette smoke (and even if that were an issue you can eat it in brownies or use a vaporizer) (4) It's cheaper than alcohol; (5) It's much safer to drive on than alcohol; (6) Many successful people have smoked or still do smoked weed (many Presidents of the United States, famous scientists such as Carl Sagan, and countless musicians, writers and artists; (7) It's not physically addictive (it's really only addictive in the sense that fun is addictive, fun is addictive in many things besides weed), some people get addicted to television for example); (8) It's no more of a gateway drug than alcohol (most pot smokers eventually end of quitting having over done any other drug besides alcohol).
• April 24, 2012, One Step Over the Line? Sweet Jesus! | Fresno Criminal Defense writes: [...] If the STATE Legislature cannot place limits on the amount of marijuana because of the CUA, neither can any LOCAL governments. State law trumps local ordinances. For more on that, see my article “Dispensing (With) Law: Strict Constructionism & Medical Marijuana.” [...]

Related posts:

• In The News
• When Law ENFORCEMENT Doesn’t Like the Law
• Practice Areas – Front Page

1. City of Lake Forest v. Evergreen Holistic Collective, 2012 Cal. App. LEXIS 239 (February 29, 2012).
2. Qualified Patients Assn. v. City of Anaheim, 187 Cal. App. 4th 734, 755, 115 Cal. Rptr. 3d 89 (2010).
3. “Dicta” are words spoken or written by courts which may appear to have something to do with their ruling, but which actually do not. Since they are not relevant to the holding of the court in a particular case, they do not count as law and are not often helpful in arguing future points in other cases. “An observation unnecessary to the decision of a court does not constitute binding precedent.” (Consumers Lobby Against Monopolies v. Public Utilities Com., 25 Cal.3d 891, 902, 160 Cal. Rptr. 124, 603 P.2d 41 (1979).
4. People v. Trippett, 56 Cal. App. 4th 1532, 1547, 66 Cal. Rptr. 2d 559 (1997).
5. Maybe that’s why they cannot understand the United States Constitution. The Founders, rather deliberately, did not spell out every single eventuality that might implicate constitutional consideration.
6. Justice Antonin Scalia at about the 44-second mark in this discussion (may require iTunes to access) with Chris Matthews before a group of 200 students.
7. I’d give you better cites on this, but the United States Postal Service — which needs to be finally put down so something better can take over — refuses to deliver my copy of the Daily Appellate Report in a timely fashion. If I’m lucky enough to actually receive the DAR, it will arrive anywhere from one to ten days late. It also doesn’t arrive in order: I will, for example, receive February 17th’s copy before I receive February 10th’s copy. Hopefully, you will read the opinion yourself and be able to find what I’m referring to using the sectional pointers, etc. I apologize for the United States Postal Service’s incompetence, but I have no power over them. Believe me: I’ve lost hours trying to straighten this out. Ultimately, they just quit taking my calls.
8. Evergreen, supra, citing Zack’s, Inc. v City of Sausalito, 165 Cal. App. 4th 1163, 1179, 81 Cal. Rptr. 3d 797 (2008)(emphasis added).
9. Id. (emphasis added).
10. Id. (emphasis added).
11. People v. Colvin (February 23, 2012). You’re going to have to find the point cites yourself. I’m currently writing from home and using Lexis instead of the DAR. The Lexis version is 2012 Cal. App. LEXIS 200. The Google Scholar version is here.
12. Colvin, supra.
13. Id. (italics in original).
14. Colvin, supra.

When working the cases, the hardest part is not that one human being might be abusing another and then is essentially being allowed to escape punishment because the “victim” won’t testify. Not at all. 

No, the hardest part is watching the State of California, through the prosecutor, the judge — or all too often, both — batter the “uncooperative victim.”

Before those of you who see no irony in making it illegal to abuse women, except when you’re the one wielding the weapon, jump down my throat, let’s stop and actually think about this first.

For this discussion, we can even ignore the fact that the State sometimes charges people with crimes they didn’t commit. Maybe the accused person is an abuser. Maybe the accused person is not. Or maybe the accused person actually did something “wrong,” possibly even illegal, but not as serious as that with which he or she has been charged. And in “domestic violence” cases, there is a high percentage of “I’m-going-to-fuck-you-because-you’re-divorcing-me-and-it-will-help-me-in-my-custody-battle” allegations. But as I said, let’s ignore all that.

In fact, let’s go a step farther. For purposes of this discussion, let’s actually assume the State got it one-hundred-percent right. Let’s assume the accused person actually did that for which he — or she, because I have had cases where the alleged abuser was female — is charged. All of it.

But the victim — and now we’ll remove the quotes, because we’re pretending the accused person is actually guilty, even though we haven’t had a trial — doesn’t want to testify.

This is a problem.

Actually, there are many problems here. Obviously, as I said near the beginning of this article, there is the problem that one human being is abusing another. (Remember, we decided for the sake of this discussion to assume the person really did what he or she was accused of doing.) This is a problem which, as sad as it may sound, is not for a defense attorney to deal with during the pendency of the case. To make it even sadder, this is a problem with which an impartial judge, following both the spirit and the dictates of the law, should not be concerned during the pendency of the case, either. In our adversarial system, only the prosecutor comes close to having a responsibility for dealing with this societal problem. It is the prosecutor’s job to attempt first to prove that a wrongdoing has occurred; that is, to seek conviction. Then to seek the appropriate punishment of the individual who committed the crime.

Let me repeat that last part: “to seek the appropriate punishment of the individual who committed the crime.”

Too often, however, in our modern system of law — we cannot say “in our modern system of justice,” because we no longer give a damn about “justice,” if we ever did — these things are forgotten. The primary reason for this, of course, is the judge. It is because judges no longer care about the real aims of the “justice” system that the system itself no longer exists. Judges have largely forgotten that their jobs are to be impartial and to ensure that the process through which the case is tried is fair and comports with “justice.” This is why so many innocent people go to jail these days. Through the failure of the judges, the system has become unbalanced. Through the failure of the judges, the justice system has ceased to exist.

But I digress. And we agreed to assume the accused people we are talking about here, for the sake of this discussion only, are guilty.

So we can also pretend, for the moment, that the judge is irrelevant. Almost. As Shakespeare said in melodramas of old, “We shall return to that anon.”

The job of the defense attorney and the prosecutor isn’t changed by the question of whether the accused did or did not commit the crime with which he or she is charged. The defense attorney’s job is to force the prosecutor to prove the case beyond a reasonable doubt. The prosecutor’s job is to “seek justice.” In this case, where, as I said, we are going to pretend the accused person is actually guilty, that means the prosecutor’s job is to prove his case and obtain a conviction so that the accused person will be found guilty and can be appropriately punished under the law.

And so we are back to what I said above, before the digression: The prosecutor is ”to seek the appropriate punishment of the individual who committed the crime.”

What happens all too often in these cases, however, is that the person who was beaten, usually a woman, refuses to cooperate in the prosecution of the person who beat her. This creates a real problem for the prosecutor because, unless someone else actually witnessed the beating, there will be no one to testify that the accused person, the person who is responsible for beating the woman, actually did beat the woman. This means the accused person — and remember, in this scenario we are discussing here, that person really did beat another person — cannot be convicted, and goes free.

Usually angry, but occasionally just focused upon the task of obtaining justice, the prosecutor then turns around…

…and starts beating the woman.

Not literally, of course, although I’ve seen a prosecutors or two who appeared as if they would love to literally beat the victim — no, instead the prosecutor initiates the process by attempting to browbeat the victim who does not wish to testify. Every effort is expended to convince, cajole, and, finally, to coerce the victim into testifying by locking them up if they refuse.

As David Wiksell noted,

Domestic violence victims incarcerated for refusing to testify are re-victimized by the very institutions responsible for protecting them. Incarcerating the victim may also dissuade other victims from reporting these crimes. As domestic violence is already an under-reported crime, the harmful effects of incarceration most likely outweigh any positive gains. [Citations deleted.]¹

There is something less savory than irony to the idea that, in order to obtain justice, and because society wishes to protect victims, the prosecutor should then further victimize victims.

Recognizing this, our Legislature began, in 1991, to tinker with the law to create limits to what prosecutors could do to victims as the prosecutors were busily re-victimizing them in their bloodlust to convict the accused.

The first thing the Legislature tried took into account that victims who refused to testify frequently did so because of the fact that they were, after all, abused. Thus, the Legislature decided that instead of incarcerating victims for refusing to testify, we should try a little “re-education”: the court could “require the victim to attend up to 72 hours of a domestic violence program for victims or require the victim to perform up to 72 hours of appropriate community service.”² If re-education failed to have the appropriate result and the woman still refused to testify, then she could be re-victimized by incarceration.

This, of course, is still barbaric. It’s like “saving” the diabetic by chaining him up and carefully controlling for him, when he will not, the timing of his meals and insulin. Or like treating “cutters,” by slicing them open.

Ultimately, the Legislature came to recognize this. Sort of. They became convinced that not only are the emotional reactions of victims of domestic violence similar to those of sexually abused person, who were already protected from incarceration, but oftentimes domestic violence victims were simultaneously victims of sexual violence at the hands of their abusers. New modifications to the law were enacted with the support of the California Partnership to End Domestic Violence and the California Public Defenders Association. The California District Attorneys Association and the Committee to Reinsitute the Inquisition opposed, but the Legislature nevertheless said that victims of domestic violence may no longer be incarcerated — or even sent for re-education — for refusing to testify.

The bloodlust of the prosecution will not be abated, however. Current law leaves intact the possibility of charging victims with contempt and imposing fines. While this may not seem as draconian as incarceration, the fact is that most victims of abuse are poor women, without resources. They are often uneducated and scared, not to mention scarred.

Which is where the judges come in. (I promised we would return to them.)

In a rare moment of not treating the opposite sex as objects of his own lusts, Governor Schwartzenegger, added a signing statement when signing the bill that stopped the incarceration of victims:

“Some have argued that incarceration of domestic violence victims is an important tool in compelling victims to testify,” Schwarzenegger said in a signing statement accompanying SB 1356. “However, I believe that the victims in these cases have suffered enough.”

The decision to testify “should be made by the individuals most impacted by these crimes,” who often experience “psychological trauma and fear of retribution from the abuser or the abuser’s family members” similar to sexual assault victims, the governor wrote.

As I noted above, victims of domestic violence are similar in many ways to victims of sexual assault. Often, they are simultaneously victims of sexual assault, which may not always be reported or recognized because of the “intimacy” — I suppose more accurately, we should say “privacy” — of their relationship to the abuser.³ These are people who have been repeatedly abused, degraded, and dehumanized.

Judges should exercise their discretion to stand in the way of allowing the State — through the prosecutor’s faux pursuit of “justice,” which is really nothing more than the normal “win at any costs” mentality that has taken over the age-old prosecutorial function of actually seeking justice — to further abuse, degrade, and dehumanize victims. As the California Supreme Court has stated, judges are not required to fine victims who refuse to testify.⁴

Yes, this means that some abusers will go free. Some will have other opportunities to abuse their victims.

But at least it will no longer be the State itself which batters and victimizes them.

Comments

• February 26, 2012, Carole writes: Well said, Rick!
• February 26, 2012, John David Galt writes: This abuse by the state is only one of many things wrong with the "Violence Against Women Act." In fact, everything it says is wrong, both factually and morally. I'll try to keep this as short as I can while covering the major points of the Act: 1. "There is an epidemic of violence by men against women." Simply not true and never has been: this is propaganda by man-haters and the "rescue" industry. 2. "Hitting a woman can never be justified." In fact, all the common situations that can possibly justify hitting someone else (they hit you first, they stole from or threatened you, etc.) are morally as good against a living partner as anyone else. This is not to say that hitting back is a good idea; it almost never is, and not only because it can be against the law. 3. "Women don't make false accusations." False; in fact it's very common, all the more now that this law allows them to lock you out of your home and take away your civil rights without even having convicted you of anything first. It's unconstitutional for the federal government to be making laws on this topic at all (not an enumerated power). It's unconstitutional for them to be funneling our tax money to political advocacy groups in the guise of "rescuing" women. It's unconstitutional for them to force state and local police to adopt policies of "always arrest someone" and "don't let victims recant." This violates the rights of the accuser as well as the accused. It's unconstitutional for them to strip a man of his gun rights without first convicting him of a crime (anything less isn't due process). If the loss of guns were only pending trial for assault, that might be acceptable. In short, by this one act, Congress not only shredded their oaths, they declared war against men as a class. Why are we not fighting back?
• February 27, 2012, SueinNM writes: Ah, Rick. See you've been visited by one of the MRA misogynists who think white males are the most persecuted minority in America. Poor you. Oh, poor men, who rule most of the world!
• March 3, 2012, Bunny writes: Mr. Galt sounds a lot like Rush Limbaugh (see the internet for extensive coverage on Limbaugh's" slutty" comments this week). Neither one of them seem to have any facts, documents, statistics to back their respective contentions. Mr. Galt do you have any factual basis for the thoughts you've set forth above?

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• A Broken Fence
• And The Money Just Squirts Away
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1. David Wiksell, ”Review of Selected 2008 California Legislation: Civil Procedure: Chapter 49: No Jail for Victims of Domestic Violence.” 40 McGeorge L. Rev. 333, 333 (2009).
2. California Code of Civil Procedure § 1219(c) [1991 version]. This version of section (c) was deleted in a later revision of the code.
3. Wiksell, id. at 335-336.
4. People v. Smith, 30 Cal.4th 581, 624, 134 Cal.Rptr.2d 1, 68 P.3d 302 (2003).