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, <> (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.

Undeniable Proof the SAPD is Awful

September 5, 2013: The Court of Appeals hands down State v. Schall.  Shawn Wilkerson of the State Appellate Public Defender (SAPD) was arguing, and won a small but important victory.  When the state claims a defendant committed a felony DUI requiring proof of prior DUIs, and some of those DUIs are from out of state, the state must show at the preliminary hearing that the DUIs from out of state are conforming convictions in terms of the law violated.  DUI differs a bit from state to state, so this is important.  The state, which merely needs to prove there is probable cause to believe the felony was committed, had argued the conviction which often says ".08 DUI" or something is good enough.  The Court of Appeals said no, bring a copy of the law and argue it.  Or lose.

State requested the Supreme Court look at it, and it granted the petition.

On August 20, 2014, the same day that Doug Phelps would argue Wulff to the Court and find that everyone agreed that McNeely likely killed implied consent (bless him)- this happened.  Shawn Wilkerson, fresh from his win less than a year ago, strides to the platform and shows his mastery of the law and the Court of Appeal's opinion.

Oh no, no he doesn't.  Actually, he flounders, freaks out, and shows a total lack of understanding of the law, the system, everything.  He basically concedes that preliminary hearings are useless and he has no idea why we have them.  What's the difference between a felony and a misdemeanor?  He doesn't know.

Question: How did he win in front of the Court of Appeals?  Probably this way.

Update: Having thought better of the negativity I unleashed, I have decided to remove the insulting section here, but my opinion of the SAPD is unchanged to the extent that I believe they do more harm than good currently and are violating the rules of professional conduct by not properly serving their clients.

Tuesday, August 26, 2014

The SRBA: It's finally over!

For folks who aren't from Idaho, the SRBA probably has some significance other than the Snake River Basin Adjudication.

How nice for you.

For Idaho, it has been 30 years of litigation.  It has produced almost a half of our appellate judges.  It was once deemed the "full employment for lawyers act."  It was pretty crazy amazing from a criminal defense lawyer's perspective.  Civil law is weird.  Money is weird.  Dealing with property rights man to man is weird.


The reason I mention it is because I have on a few occasions used SRBA opinions in arguments.  The SRBA is probably one of the better gauges for what Idaho Appellate judges will do in existence.  I'm not saying mention the SRBA every time you argue, but... maybe?

You can read about its demise here.  You can check out the history here.

The Snake River for out-of-staters is the massive river that wraps through southern Idaho (like a snake) emptying eventually into the mighty Columbia, after heading through Hell's Canyon, the deepest canyon in the US.  It is generally found down deep embankments and taunted early settlers on their way to Oregon dying of thirst in the desert.

But then FDR came and spent a bunch of money turning that desert into an agricultural zone using the Snake.  And then people got mad about water rights, and then this thing happened.

I think the most important thing to remember is this is the case where the judiciary put the smack down on the Legislative and Executive, who in turn promoted those who had sided with them while District Judges and placed them on the Supreme Court and Court of Appeals.

Those judges are, in my lowly opinion, dangerous.  But they're still growing and learning, and perhaps the fact that the SRBA was successful, despite the justices occasionally throwing out laws and solutions wholesale as violations of the state Constitution (this happened, read about it), will teach them that its ok to be loyal to our charter.

Maybe.  Anyway, if you're a lawyer in Idaho, you really ought to learn about it.

Friday, August 22, 2014

Hypocrisy and the First Amendment

Every time someone in this country is told they can't say something by anyone, you get a bunch of tinfoil hat folks screaming about the Constitution and the First Amendment.

Let me explain this very slowly to you:

It has literally no effect on you.

I say literally because it is written to have no effect on you, but we talk about rights so much people seem to think the document created something they own and the Supreme Court sometimes agrees.

It's a mess.  Don't get me started.

But even from the illiterate view, the Constitution does not say that no one can make anyone shut up, ever.  Just the government.

So A&E is mad about duck dude hating gays, that's not a First Amendment issue.  Savvy?

Now, sadly, to that tinfoil hat crowd a number of attorneys have joined: Scott Greenfield, his mentee Horowitz, and some other assholes.

Of course, Greenfield and said assholes are smart enough not to actually claim the First Amendment applies. Only Horowitz seems to claim this and makes the bizarre additional claim that the First Amendment ended slavery. But as a group, there's that tinfoil hat tendency to claim all Americans can say whatever they want and no one can stop them because it's a free country.  Hell, they'd welcome a law that made it unlawful to make other people shut up.

Or would they?

Greenfield routinely silences people on his page and then writes long, rambling columns about how sad it makes him that stupid people comment on his work.  Pot calling the kettle, but whatever.

Sometimes, some people really need to shut the fuck up.

So, as Horowitz claims, did the First Amendment win the Civil War and end slavery?

No,the First Amendment A. did not apply to the states and B. did not mean what we now say it means.  Because A. Fourteenth Amendment was not passed till 1868, and B. free market of ideas crap doesn't even show up till like 1953 (though you can date the idea back to Holmes in..1918).

Hell, states constantly banned abolitionist publications.  BECAUSE THEY COULD.

Granted, without a First Amendment, had Congress/President ever agreed to ban abolitionist writings they might have.  I'm not so sure that would have saved slavery though.  Because, you know, the historical reasons slavery ended.  Read a book.

Would it be nice if attorneys learned about things before they babbled like idiots on the internet for their adoring dipshit public?


But I won't tell them to shut up, since frankly, we're criminal defense attorneys, so no one important is listening anyway.

Wednesday, August 20, 2014

Juvenile Shackling in Idaho

Court of Appeals released State v. Doe today.  Over one dissent, the Court held that juveniles cannot be shackled at evidentiary hearings without an order of the court/finding of necessity.

Kind of a huge fucking deal.

Better, the Court goes on to say it thinks kids shouldn't be indiscriminately shackled at all, and asks the rules committee to look into it.

Idaho.  It's a pretty weird place.

Monday, August 18, 2014

Nightmare Government: Town Outlaws Giving Water to Thirsty Families

The thing about Idaho is it is a very conservative state.  Small government state.  Or so it was.

You can find some interesting articles about it, but if you're from out west, you know Californians are destroying every state around them.  Mostly, its urban liberals mucking up places like Idaho.  But in Idaho, it's urban conservatives.  Ultra religious, ultra law and order, ultra conservative.  They are tone deaf, insane, and ravenous.

So I suppose I should be unsurprised that this happened.

But I am kind of surprised because, holy shit.  Water?  

Bless Mr. Freitas for fighting.  The Court of Appeals released a rather harsh opinion.  Here are my two favorite parts:

Here, Freitas fails to acknowledge or address the state’s legitimate interest in retaining control of the authority delegated to the city to exclusively provide domestic water services. He also fails to recognize that the municipality’s ability to effectively collect delinquent water fees is undermined by circumvention of the penalty for failing to pay those fees--disruption of service. Although the water provided to the third party is still being paid for, the water previously provided to the third party for which that third party has not paid remains unpaid and the incentive to pay that debt is reduced. This threatens the city’s ability to provide low-cost water services.5 Thus, the municipality, and thereby the community it serves, is harmed and the municipality may take steps to prevent that harm, including criminalizing the causal conduct. As a result, the ordinance is not arbitrary. Instead, it is the result of a legitimate exercise of the city’s local police powers granted under Article XII, Section 2, of the Idaho Constitution and I.C. § 50-323 in regulating the provision of domestic water services for the peace, good government, and general welfare of the city residents. Accordingly, the ordinance is facially constitutional and the district court did not err in so finding.

So, a city has a legitimate interest in preventing a family from having any access to water in their home if they can't pay the bill.

Imagine this:

I can't pay a debt on time, so by law, I cannot get a loan from ANYONE.

I can't pay my electric bill, so you're a criminal if you loan me a flashlight.

I can't pay my water bill, so you're criminal if you GIVE ME A GLASS OF WATER.

Oh wait, that's what this case is about.

My other favorite part:

Freitas fails to specify how, under any of the several provisions he invokes, the ordinance is unconstitutional. Instead, he provides several statements about the value of charity followed by conclusory assertions that charity must be protected under the state and federal constitutions. These assertions are unsupported by cogent argument or relevant authority applicable to the facts of this case. A party waives an issue on appeal if either authority or argument is lacking. Zichko, 129 Idaho at 263, 923 P.2d at 970. Accordingly, we will not address this argument further.

A couple points here:

1. What authority "relevant to the facts of this case" do they expect?  NO OTHER GOVERNMENT IN THE ENTIRE COUNTRY FOR THE LAST 200+ YEARS HAS BEEN THIS INSANE.
2. Seeing as how he was claiming charity is protected by state and federal constitutions, he's required to prove it's a traditional value around since those documents were adopted.  That substantive due process for you.  Either judges buy it or they don't.  Obviously, this set didn't.
3. This would have been a watershed moment for the judicial branch and these fuckers totally let it go by.  Why?  Seriously.  

This case is the biggest black eye I've seen our appellate courts receive from the public since cases where they let really bad people go.  You've got the IFF writing articles and getting them published all over the state.  I mean.  Self inflicted wound guys.  Why do this to yourselves?  

I get the opinion for the most part.  I don't find the ordinance as clear as I think the constitution requires, certainly not if it's intended to apply as it does here.  I'm of the "if a government wants to outlaw something totally normal it needs to do it in neon letters" crowd.  

Bad news bears man.  Bad news.

Friday, August 8, 2014

The other IAD

It's not a roadside bomb.

It's the Interstate Agreement on Detainers.  A super boring name for something that all states have signed onto requiring states to bring someone to trial within 6 months of a demand to be brought to trial made by a prisoner in another state.  The "detainer" is any kind of hold another state makes on a prisoner.  In a prison.

This law sounds, super awesome.  Imagine me using hand gestures for that.  Super.  Awesome.

Here's how it works though:

Prisoner is in local jail and finds out about this, somehow pencils it together.  RESULT: laughed out of court.

Prisoner is in prison.  Cannot get prison to figure out what he's talking about.  Time goes by without him filing the proper paperwork.  RESULT: dies in prison.

Prisoner is in prison.  Prison officials give him paperwork to ask that his detainer be quashed.  RESULT: probably dies in prison.

Prisoner is in prison.  Somehow manages to file proper paperwork.  RESULTS:

1. Local DA is like huh? signs papers, demands trial.  Sheriff never does anything.  DISMISSED! Woooot

(DA could just let it go, but.. nah)

2. Local DA is like huh? signs papers, demands trial.  Sheriff comes and gets you.  Now shit gets interesting.

So many new variables!  You've heard of speedy trial rights, you didn't know that mostly they just end in a dismissal without prejudice, going to jail all over again, and repeating your hell.  But with the IAD on your side, dismissal MUST be with prejudice.  Shit. Just. Got.  Interesting.

You're in Idaho.  You go to court.  Do you want a preliminary hearing?  You use a prelim to test your case, possibly to get charges.. dismissed.  WITHOUT PREJUDICE.

WHAT DO YOU DO???  You might win.  If you win, now the state will crush your tiny baby soul by REFILING CHARGES.  All the work you did: fucked.  Your six month clock: dead.  You: die in prison.

Next: to take a deal.

The state is all: agree to horrible deal, stupid idiot trapped in hell with no real choices.  You're all: what?  you have one month to try my case.  Puh-leeez.

But then: judges realize the DA is a fucking moron, and fast track your case.  You don't really think the witnesses the state needs will show since they have like a week to pull it off.

WHAT DO YOU DO????  Will they crash and burn?  Or convict your stupid ass?  Why did the state have to push you this far?

Oh I dunno, probably because they lose nothing by screwing with you.

The IAD: making shit get all crazy since 1970.