Wednesday, June 26, 2013

Baby girl

A lot of news this week on Supreme Court opinions.

What was lost, in my view, was a possible shift in the favor of parents.  The Court heard argument in Adoptive Couple v. Baby Girl for the Adoptive Couple claiming that the heightened standards created to protect Native American families are a violation of the equal protection clause.  The Court ignored this, and simply read the statute in a kind of stupid way so as not to allow a parent that wasn't around at birth to show up later and get the protections of the statute.

That doesn't make any sense at all.  The statute has jurisdiction based on the baby's status, not the parent's.  I have clients who are under ICWA jurisdiction who are non Native American because their child is.  This decision is really quite stupid.

The point of ICWA was to ensure that where Native American children are taken from their parents- they go to people within the tribe.  Not some white people.  Because otherwise the tribes faced (and some may continue to face) being quickly wiped out by having their kids taken and raised by whites.  Culture dead.  Poof.

Anyway, Scalia's dissent was perfect.

While I am at it, I will add one thought. The Court’s opinion, it seems to me, needlessly demeans the rights of parenthood. It has been the constant practice of the common law to respect the entitlement of those who bring a child into the world to raise that child. We do not inquire whether leaving a child with his parents is “in the best  interest of the child.” It sometimes is not; he would be better off raised by someone else. But parents have their rights, no less than children do. This father wants to raise his daughter, and the statute amply protects his right to do so. There is no reason in law or policy to dilute that protection. 

You see, what should have happened is that the Parent's point that the special protections given Native Americans IS a violation of equal protection.  In fact, ALL PARENTS SHOULD GET THAT PROTECTION.  I know, madness.

You have to understand, you, if you're a parent, have essentially no ability to hold on to your kid if the government wants it.  The laws, at least in Idaho but I'm pretty sure it's the same everywhere, are vague and basically allow the government to take your kid.  Then 48 hours later, you go to Court with a lawyer (in Idaho, elsewhere alone) and you try, with almost no notice of what the case is against you, to get a judge to think there's no reasonable possibility that what the state is saying is true.  Yes.  Prove the negative.  You will find this is next to impossible.  And you will lose your kid for at least a month.  In Idaho, at that next hearing, you get a preponderance standard and the rules of evidence come back like old friends.  And sometimes you win.  But usually the State continues to hold all the cards.

ICWA makes this quite different.  The state has to prove by clear and convincing evidence that there is an imminent threat to the child to remove it from the home.  It's a beautiful, beautiful thing.  And it should be there for all families.

So Baby Girl was a big loss for us all.  But the argument is untouched, and may be made again.

Friday, June 21, 2013

Besaw and Mixed Emotions

So the Court of Appeals of Idaho went and released an opinion today that at first horrified me but then I became rather uncertain of what the Court was really saying.

First, although the Court of Appeals in Idaho has no choice but to review cases, it does not have to publish an opinion.  It also doesn't have to write much.

So along comes Besaw

Besaw is a terrible opinion.  If you look at the dicta.  But the dicta is pointing in many different directions, and the holding is even weirder.

Although Besaw has exposed some troubling information about the manner in which the 
SOPs for breath testing have been developed or amended, we are not persuaded that he has 
demonstrated that the SOP procedures are incapable of yielding accurate tests. Besaw contends 
that the SOPs are so strewn with “weasel words” and “wiggle room” that they lack scientific 
basis and permit testing procedures that will not yield accurate tests, but there is no evidence in 
the record to support that conclusion. To be sure, the emails and memos to and from ISP 
personnel are disturbing, for some comments and suggestions lacked any apparent regard for the 
way proposed changes could affect the validity of the tests. As Besaw alleges, some participants 
seemed to view the ISP’s task as being to thwart all possible defense challenges to the admission 
of breath tests rather than to adopt standards that will maximize the accuracy of tests upon which 
individuals may be convicted of serious crimes and deprived of their liberty. Further, it appears 
that there was a conscious avoidance of any opportunity for suggestions or critiques from 
persons outside the law enforcement community.5
While we do not endorse or condone such an approach to the ISP’s statutorily-assigned duty to define breath testing procedures and standards, we cannot say that the emails in and of themselves, or any other evidence in the record, establishes that the test procedures actually authorized by the SOPs and applied in Besaw’s case are incapable of producing reliable tests.6 Therefore, we find no error in the magistrate court’s denial of Besaw’s motion to exclude the test results from evidence.

And mind you, this is Lansing writing, and she wrote the dissent in Wheeler that inspires us all to try to get the Court to see how bad the SOPs are.

But what is she saying?  The judges know that the ISP, in 2011, was fucked up.  They know that Jeremy Johnston is doing everything he can to make it impossible to keep breath test results from being thrown out by making them impossible to challenge, rather than more accurate.  But, in 2011, they are saying things aren't that bad yet.  And it's 2013.  And things are much worse now.

Further, the Court has now released two opinions with this footnote (in Besaw it occurs twice):

We have not, however, held that these SOPs and manuals actually constitute “rules” or 
that the ISP has “prescribed by rule” testing instruments and methods as contemplated by I.C. 
§ 18-8002A(3); that issue has never been presented to this Court.

So what does it mean?

For now, not much.  But give it a few years and the SOPs of 2013 are going to get a real grilling.

Thursday, June 20, 2013

Tactics and Misconduct

The Idaho Court of Appeals is a weird group of judges.

Every since Perry, their opinions on prosecutorial misconduct have gotten worse and worse.  I would blame the newbies, particularly Gratton, who I doubt has any criminal experience, but Lansing signs on to these things like it doesn't matter.

The first time Gratton claimed that failure to object to prosecutorial misconduct could be a tactical decision and therefore couldn't be fundamental error I really hoped this would be a blip on the radar.

But low and behold, June 14, Gratton is at it again.  This guy really thinks that a trial can't be unfair if the prosecutor does everything humanly possible to inflame a jury and bring in incompetent evidence so long as the dope in the seat next to the defendant is silent.  Because, you see, that could be a tactic not to draw attention to the bad thing the prosecutor did, so, see, that means the misconduct wasn't fundamental error.

That insane circular logic is what our dear judges are cementing as law.  And naturally I'll have a case on the subject before them soon.

This raises the question: When what you think needs to be done is to just flat tell the judge that he's bonkers, what do you do instead?  Judges are so smug in their robes, you have to basically engage them in intellectual puzzles and force them to realize that what their doing makes no sense whatsoever.

But even then, judges will just go on doing the wrong thing.  You'd like to think they have integrity, but rather than "apply the law," they want results.  Screw your client.  He's just a druggie, like the prosecutor told the jury.

As his attorney, sly as a fox, sat by and did nothing.

Tuesday, June 18, 2013

New rule for police interactions: Ramble on about the weather

The Supreme Court did what we all were expecting in Salinas.

They decided that you have to say "I'm remaining silent" to invoke the Fifth if there's no custodial interrogation.  The gruesome twosome wanted silence even with Miranda to be ruled on and allowed as evidence at trial.

This is the result of fantastic mental gymnastics.  If the Constitution does not allow a person to be compelled to be a witness against themselves, then this ruling makes no sense, as the government's question compelled a response, here, silence.  So what Scalia and Thomas are insisting on is that the 5th be read to only mean in the court, even though no police existed at the time the amendment was written, and so their "founders" are really no use to answer the question, unless you acknowledge the broader principle- that the government cannot compel a person to be a witness against themselves- and knowing full well that what is said to a cop will be used later in court, YOU CAN'T SCREW WITH PEOPLE JUST BECAUSE YOU'RE A COP.

Then you have the other three conservatives who simply recall their promise to law enforcement to destroy Miranda, and not realizing that this particular scenario in reality has nothing whatsoever to do with Miranda as a prophylactic but it quite simply the constitutional right being called into play.

And of course what this will lead to is a sudden jump in trainings for cops and prosecutors called "how to get people to shut up, and then convict them for it."

It's easy!  Badger them a bunch.  When they get frustrated and stop talking- WIN.  The prosecutor can proudly march in and say, this guy was not willing to say whether or not he did X.

In the fact of everything going on right now, the conservatives on the court apparently aren't getting the message that the current party is supposed to be anti-government.  But then, I never know with conservatives.  How the hell does anyone think they can be anti-government but pro-cop?

Sunday, June 9, 2013

"No such agency" doing a great job of keeping out of the headlines

How long ago did that Boston thing happen?  I feel like it wasn't that long ago, but it has apparently totally vanished from our collective memory.

I'd have thought you'd get this NSA scandal and everyone would start doing the hand count to doom, you know, "FIRST (hold up pointer finger and point at it with your other pointer finger) they shut down a major city to get one guy that wasn't even a threat, SECOND.." etc.  But nope.  NSA scandal apparently is not related in America's mind.  Maybe it's because the media was pretty sure we all were ok with closing down Boston.  ("That place blows anyway.") Or maybe it's because the media moguls have drawn a line as to what we're allowed to not be ok with and what we can be ok with.  Nah.

I'm also kind of amazed how long it took for anyone to refer to the last time we found this out under the Bush Administration when the Times leaked it.

I'm not particularly surprised that conservatives are enraged and Democrats are called "civil libertarians" or something weird like that if they care.  Are you actually bothered by the lack of privacy?  Then you're in this subgroup that doesn't make policy in this country anymore.  Also, the Supreme Court evidently no longer thinks the Constitution means what you think it means, so your DNA is going into a master database with your Social Security number.  Yeah, the acronym is SS.  Weird right?  Funny coincidences abound.  Now open your mouth for the swab.

Everyone else that cares is mostly just freaking because Obama is supposed to be a muslim communist that wants to sell our women and enslave our men as revenge for slavery EVEN THOUGH SLAVERY IS WHAT GOT BLACK PEOPLE TO THE GREATEST NATION ON EARTH AND WITHOUT IT THEY'D BE STARVING IN AFRICA!  And the inane ranting goes on.  Big sigh.

I guess I'm bothered, personally, by the fact that the government as a whole, all three branches, have agreed that our liberty has shrunk a ton and we just have to deal with it.  But I'm also at a point in my life where since things are going well I'm unlikely to get up and start some social protest movement to do something about it.  I'm kind of counting on the ACLU to do it's damn job.  But since the Supreme Court doesn't care, that's not going anywhere fast.

And realistically, I'm not in a place that is the focus of a lot of government stuff, some sure, but not a ton.  Ruby Ridge kind of put the feds in their place.  Of course, with this area having been taken over by the conservatives from socal thanks to decades of white flight, Ruby Ridge would likely turn out different if it happened again today.

I mean the trial, not the event.

Anyway, assuming the only way to get our freedom back is democratically, that means we have to vote in people that will actually stop what is happening.

Vote!  That's the message.  Vote your heart out.  And hope they actually do it instead of simply farming it out to a private company to do for them.

Tuesday, June 4, 2013

The exhaustion that is Idaho

I spent most of today putting together a cheat sheet on penalties for various crimes.  My favorites were the 20 years I can spend in prison for messing with an agriculture research center or sabotaging a tree.

I spent a few minutes trying to figure out why the police can record people and play it in court without committing a felony.

And that's sad, because you'd think I'd assume the law was well-written enough that the police wouldn't be constantly committing a felony.  After all, our Terrorism statute literally describes what police do as terrorism but then in a separate statute grants them all immunity.  Thank goodness.

But see, since I started working in this state I've noticed that dumb things happen.  Very dumb things.

The first thing I noticed was that our courts have decided there's no issue with not presenting the other side with your rebuttal witnesses.  Nothing in the discovery law or rules allow this.  In fact, neither did the original case law.

But our good ol' Court of Appeals misread our Supreme Court and cemented this practice, which as of yet has not made it to the Supreme Court for review.

The second was when the Court of Appeals, out of nowhere, decided that rather than people being allowed to use reasonable force to defend themselves from unlawful police action- they may not use force at all.  Peaceful force only.  Or the cop that is raping you with his nightstick can still arrest you for battery on certain personnel.

And now my current headache.  "Implied consent" is a country-wide state practice of requiring drivers to submit to breathalyzers or be punished.  You read the cases, and the Supreme Courts all say "this has nothing to do with the Fourth because the Fourth is unrelated to DUIs- Schmerber said so!

But McNeeley says that's really not the case, so.. um..

But in Idaho, our Court of Appeals (again) decided to misread the case law (badly.. like.. violating the professional rules badly) and say that Implied Consent is to a Fourth Amendment search.

And so, just like that, the state legislature was granted the ability to force you to give up your Fourth Amendment rights if you wanted to drive.  And then, ten years after the fuck up, the Supreme Court held the same- CITING TO THE OPINION WHERE THE COURT OF APPEALS GOT IT SO FUCKING OBVIOUSLY WRONG.


And when I get to the Supreme Court, I will stare at them.  And I'll say, "well, since you're an elected judiciary, I'm going to assume I've already lost, so let's both just spend fifteen minutes in silence, contemplating the death of our freedoms.  Because when a state government can make its citizens waive their rights just to do something as universal as driving, the Bill of Rights is dead."

This is why my job is depressing.  It's not just the screw ups that send the innocent to prison, it's having a front row seat for the death of America and all it stands for.

Saturday, June 1, 2013

Sovereign silliness

Sovereign citizens crack me up.

First of all, as a defense attorney, I rarely meet them.  They'd have to actually come to court and I'd have to be forced to sit through their rant.  Because they do not request attorneys.

Once in a while, a wiley judge will force a PD on them as a guide.  "Here you go crazy person, this charming guy in the shabby suit will help you."  And then, if you're super lucky, he never talks to you.  But if he's in jail, don't count on it.

Essentially, sovereigns believe a host of crazy things, but on the basis of that they do what I think is perhaps something more people should do: they just fuck everything up.

They file pages and pages of nonsense in their cases.  It boils down to: ok, law looks to me to be a bunch of magic words.  So I'll just write something with different orderings of magic words, and see what happens.  Can't be that much worse than what lawyers do.

Every once in a while, they're right.  The order of the words is recognizable to a judge as an actual thing and the judge has to respond.  Most of the time, the judge says, "well, it appears you're doing X, and I can't say that makes any sense at all."

Anyway, sovereigns do not crack up law enforcement because some of them also kill cops, which is generally not a good way to keep from being on the government's watch list.

Someone today posted something about some folks at Independence Hall passing out flyers.  The article was unhelpful in terms of figuring out what they were being told to do different.  It appears they were required to get a permit, but we don't know if they had to pay for the permit.  Your First Amendment rights can be limited when the government can come up with a very good reason- in this case- probably something about keeping Independence Hall from being overrun with loonies and littered with flyers.  Who knows, maybe the law isn't constitutional.

But the trouble is after these people tell the officers they have a First Amendment right to do what they're doing, they then start telling the officers they have "natural rights" to walk in the park that cannot be infringed by any government.

Say what?

First, natural rights are fun as a concept but you can't actually quote them unless you're in front of the Supreme Court trying to convince it to expand what's incorporated in the 9th or 14th Amendments.  Natural rights include whatever you want, but usually they're considered to be basic things like breathing, sleeping, eating, and hanging out with folks.  They're not usually going to include being in a particular place- in fact- that concept of natural rights would negate a pretty core element of property rights- the ability to keep people you don't like off your yard.  The government, when it has the property, gets to also keep you off.  Pretty standard.  No judge will ever say there's a natural right to be on property that doesn't belong to YOU.

Second, if you start telling a police officer you have natural rights and the government can't infringe on them, then you sound like a sovereign.  And if you sound like a sovereign- expect to get tasered, because the cop sure as hell isn't interested in waiting for you to shoot him in the head.

My advice to y'all that think you know enough about your rights to quote them to cops: you don't.  Remember your 5th Amendment right to ask for a lawyer and refuse to talk to them, but leave your various theories for why what you're doing isn't against the law for the courtroom.  A judge will have far more patience and is far less likely to beat you about the head.