Sunday, August 31, 2014

Reality of being Poor Emerges in the Zeitgeist

If you're in the system, you know all of this already.  But for those outside, it's nice to have the media interested enough to write things like this.

The system is not very good at being egalitarian, as it has a hard time both being egalitarian and appearing egalitarian.  It appears egalitarian when everyone gets an 800 fine for the first DUI.  It is egalitarian when judges take into account how much money a person has, if they can work, etc.  This is because the point of the fine is punishment, rehabilitation, protecting society, and deterring others.  800 fines do these things differently depending on the person standing there.  Judges usually try to do proper sentencing, but often have default positions on certain things.

What if they have a past where they still owe fees and fines?  Judges start ordering community service, or jail.  "Graduating sentencing" is the idea.

What's lost is of course a moment to figure out what is going wrong.  A lot of people are getting driving without privileges charges over and over because they are simply deep in debt and you can't live or work without driving in Idaho.  Are they supposed to move away?  The system becomes a destructive loop, and a person who was just down on their luck rapidly finds himself unable to move forward.

Paul Ryan, who I generally find interesting but don't think highly of, just put out a new book (you can google it, I'm not trying to help him sell the thing).  He wants to have social worker/case managers available for all the folks that need help (among other things, but let's be myopic for a moment).

My thought on hearing that was: whoa, I have thought that same thing for years.

Apparently, we're not the only ones to be thinking this is a great idea, but not a lot of Republicans are pushing for it.  And all I see is him being criticized on right and left.  I just want to say, it's a great idea.  Being poor is exhausting, living in poverty is far more work and more stress than being in the middle class.  Having a person who knows what resources are available and can quickly assist a person in doing things would be awesome, particularly if they could do it in that persons office, rather than needing to go to multiple offices and make multiple appointments for everything.

Homosexuality and Criminal Law

So Cali got rid of the Gay Panic defense.  The Gay Panic defense is really just a way to make homosexuality relevant so you can bring it up and hope there are a few homophobes on the jury that will acquit your client.

Generally, I hate to see one of the few accepted defenses to law breaking disappear, but I'm ok with this one.  I would feel bound to use it, and while I'm not usually much bothered by what I do for a living, I could see this troubling me.

You know, Idaho is actually a lot less homophobic than most think.  Most of the cities passed bans on using homophobia to discriminate.  While the Republic Party's platform usually includes various homophobic things, so far, the state seems to be moving inexorably toward not sounding like a bunch of old cranky white guys.

Yeah we did have that lawsuit for the old woman who wanted to be buried with her mother in a state cemetery.  But that was the executive mostly and they have to deal with their base and politics yada yada.

ANYWAY I actually wanted to talk about this.  Because prosecutors claiming that homosexuality is related to pedophilia DOES happen in Idaho.

The story is as old as time: gal is a lesbian, someone claims molestation, clearly her lesbianism means she wants to touch kids!  Duh.

Then the Court of the 4th Appellate District (Cali is big) said f that nonsense:


So by linking appellant’s sexual orientation to the issue of motive, the prosecutor essentially told the jury the reason appellant chose to victimize A.G. is because she is gay.  

We have grown beyond that notion. “[T]he modern understanding of pedophilia is that it exists wholly independently from homosexuality. The existence or absence of one neither establishes nor disproves the other.” (State v. Crotts (Ohio 2004) 820 N.E.2d 302, 306.) While there are some early cases to the contrary (see e.g., People v. O’Moore (1948) 83 Cal.App.2d 586 [equating homosexuality with sexual perversion]), California courts have long recognized that a defendant’s sexual attraction to adults of the same sex has nothing to do with whether they are sexually attracted to children of the same sex. (People v. Giani (1956) 145 Cal.App.2d 539 (Giani).)

In Giani, the trial court granted a new trial to a male defendant accused of sexually molesting a boy, due to the fact the prosecutor elicited evidence the defendant was a homosexual. (Giani, supra, 145 Cal.App.2d at p. 541.) In affirming that ruling, the Giani court rejected the notion that a person’s sexual orientation has any bearing on their propensity to commit sex crimes against children. (Id. at pp. 543-544.) Indeed, the court considered the idea of using evidence of a defendant’s homosexuality to prove they molested a child of the same sex about as farfetched as using evidence of a defendant’s heterosexuality to prove they committed rape. (Id. at p. 543.) It is painful to find this battle still being fought 58 years later.

The Attorney General argues, “Appellant’s sexual preference for females only went to the gender of her victim, not to her predilection for children over adults.” “[T]here is a modicum of relevance concerning appellant’s sexual preference for females given that she and her victim were females.” This argument assumes gay child molesters are more likely to victimize children of their own sex than of the opposite sex. However, “there is no evidence that lesbians are especially likely to abuse girls” as compared to boys. (Becker, The Abuse Excuse and Patriarchal Narratives (1998) 92 Nw.U. L.Rev.1459, 1467.)

The point the Giani court made before the lawyers in this case were born is no less true today. Trying to draw a connection between a child molester’s sexual orientation and a preference for children of one gender or the other is problematic to the point of counterproductivity. “Many child molesters cannot be meaningfully described as homosexuals, heterosexuals, or bisexuals (in the usual sense of those terms) because they are not really capable of a relationship with an adult man or woman. Instead of gender, their sexual attractions are based primarily on age.” (Herek, Facts About Homosexuality and Child Molestation, at p. 3, <http://psychology.ucdavis.edu/faculty_sites/rainbow/html/facts_molestation.html> (as of Aug. 3, 2014) (hereafter Herek, Homosexuality);see also Murray, Psychological Profile of Pedophiles and Child Molesters (2000) 134(2) The Journal of Psychology 211, 215 [an important factor in child sexual abuse cases is “the availability and vulnerability of children rather than a particular sexual attraction”]; McCloskey, et al., Adult Perpetrator Gender Asymmetries in Child Sexual Assault Victim Selection: Results from the 2000 National Incident-Based Reporting System (2005) 14(4) Journal of Child Sexual Abuse 1, 2 [female sex offenders choose child victims of both genders with equal regularity]; Freund, et al., Erotic Gender Differentiation in Pedophilia(1991) 20 Archives of Sexual Behavior 555 [sexual arousal study indicating pedophiles are far less likely to choose their victims based on gender than are other adults in selecting their sexual partners].)

That being the case, we do not believe the evidence of appellant’s sexual orientation was relevant to her prosecution. Period.


You have to love it when a court gets sassy in an opinion.

Anyway, as some of us still find ourselves confronted by these tactics, I think this is a pretty good opinion for attorneys to be aware of.  And who knows, could be the AG appeals it and we get a Cali Supreme Court opinion on the issue.  Can't see that turning out well for the state either, but I could see an AG thinking, let's just push this all the way and be done with it.  Either it's going to be a thing, or it needs to be wiped out statewide.

Amen to that.

Wednesday, August 27, 2014

A Reminder of What it Means to be an Attorney

Slate has this article about Jason Wright, the JAG that has defended Khalid Sheikh Muhammad, maybe the most hated man in our hemisphere.  He's being forced off the case by JAG, and has now left the Army just to remain on for at least a short bit.

Think about that.  Would you give up your life for one project you're working on?  If you're an attorney, one client?

Yeah, you might.  Some wouldn't.  But as Wright points out, he has a duty to his client, and that overrides the rest.

As an aside, I heard from a JAG friend that JAG just let go something like 200 attorneys.  They are claiming it is for budget reasons.  I think it's an attempt to cover up what they did to Wright.  Expect extreme spin.

I point this guy out because today, my blog got flooded with views.  This is a tiny, PD blog in Idaho.  It does not have a lot of viewership normally.  Today, that went haywire.  And I have to assume it is because various people were discussing my last post about the SAPD.  A PD in Ada County named John even commented that essentially my criticism was nonsense because 1. I did not provide a way to properly perform at oral argument and 2. I have an anonymous blog.

I've said this before, but I'll say it again: The SAPD is made up of attorneys and they have the same duties to their (our) clients as we do.

So, when they decide to not pursue a "nonfrivolous" argument, that's an ethical failing.

Frankly, I know the SAPD folks, and I never had much against their actual skills till lately as the evidence has begun to pile up that the work product is becoming garbage.

The obvious retort, besides making ad hominem attacks and asking me to explain how to do oral argument (step 1: PREPARE), is they are facing insane workloads and cannot be expected to function well.

Scott Greenfield recently wrote a perfectly good response to that bullshit argument so you can just go read it.  Look, you have a duty to your client, even if he is a crack addicted schizophrenic who rapes babies.  You don't get to phone it in, and claim you're just too overworked and underpaid to do your duty.  That goes for the SAPD, too.  If they can't handle the load, they need to take a stand and start refusing cases.

I'm kind of surprised that the mood about the SAPD is so protective.  Do you PDs recall this (the bill, not the post itself)?  Remember when she told us she had our back?  And she failed.  She failed horribly.  A CEO in her position would have stepped down.  I know we're used to failure in our business, but when you actually make our situation worse, it's time to say, hey, I tried, time to let someone else step up.  That would also have sent a message to the Governor and legislature: You can't put one of us on your bullshit councils, ignore us completely, fuck us, and expect us to smile and bear it.  We will simply stop participating in your charade and sue you.

After all, we're attorneys.