"The Right to be Free from Intimidating Searches & Seizures"

Facts.

Defendant, an hispanic male, was seated in his car, parked in a Motel 6 parking stall, waiting for his cousin who had rented a room inside. Officer Dickerson, who was patroling the lot in his vehicle, saw defendant and pulled in behind him. There had been no reports of any criminality and Dickerson had no specific reason to suspect defendant of anything. He was engaged in what might be called a pure "idle investigation."

According to Dickerson, he did not block defendant's car. The judge believed Dickerson's version of the events, and so it is to be assumed on appeal that defendant was physically unembarrassed from throwing his car into reverse and driving off.

According to Dickerson, he exited his patrol vehicle and walked over to the driver's side of defendant's car. The window was half down and Dickerson shone his flashlight into appellant's face. Dickerson asked what defendant was doing and defendant said his cousin was getting a room. Dickerson then asked if defendant was on probation or parole. When defendant replied that he was not, Dickerson asked for his driver's license.

According to Dickerson defendant "became very argumentative with me about why I was stopping him, why I'm talking to him." Dickerson then noticed that defendant had "fluttering eyelids" which indicated to him "as possibility he [was] under the influence of a stimulant." Dickerson ordered defendant out of the car and conducted further so-called "tests" on the basis of which he arrested defendant for being under the influence. A search of defendant's person, incident to arrest, uncovered a baggie of methamphetamine.

Issue:

Should the evidence of defendant's methamphatine usage be suppressed as the "poisoned fruit" of an unlawful search and seizure?

Argument

Yes. Defendant was unlawfully detained from the moment Dickerson asked if he was on parole and demanded to see his license. An ordinary and reasonable person would not feel free to refuse to answer a police officer's questions about his legal status. In addition, Vehicle Code § 12951 requires the driver of a motor vehicle to present his driver's license to a police officer on demand. Refusal to do so is a misdemeanor, and it is immaterial "whether the engine is on, or whether the vehicle is parked, stopped or in motion." (Adler v. Department of Motor Vehicles (1991) 228 Cal.App.3d 252, 258.) Therefore, defendant was required by law to comply with Dickerson's demands and was not free to go. Since he was not free to go, he was detained from and after the moment Dickerson made his "requests".

However, in court, Dickerson did not give any reasons for the detention. Without articulable facts giving rise to a reasonable suspicion of criminality, a detention is illegal and any observations made or evidence seized during that detention is the "fruit of the poisoned tree" and must be suppressed. (Wong Sun v. United States (1963) 371 U.S. 471.)

Background

As everyone knows, the Fourth Amendment guarantees the right to be free from "unreasonable searches and seizures." An arrest is a seizure of the person and, from time immemorial, has had to be supported by probable cause. Probable cause exists when the police have such substantial and reliable information of specific facts as would indicate to a reasonable person the probability that a crime was committed or that specific evidence of crime will be found in the place to be searched. (Nathanson v. United States (1933) 290 U.S. 41; Illinois v. Gates (1983) 462 U.S. 213, 238-239.)

However, in the 1960's -- the supposed heyday of judicial liberalism -- the Guardians of Liberty began to back-pedal on the probable cause requirement. In Terry v. Ohio (1968) 391 U.S. 1, the Supreme Court ruled that police could temporarily detain persons based on a reasonable suspicion of criminality. The Supreme Court made a big brouha over the fact that a "reasonable suspicion" was something more than a "mere hunch." But it was something pretty close. To be sure, as with probable cause, the police had to point to some concrete fact, some concrete information, as the basis for their decision to detain. But the critical change was that the focus shifted from "facts to believe that a crime has occurred" to "facts to suspect that some sort of criminality might be afoot." A suspicion is always less than a conclusion. In Terry the "reasonable suspicion" was that some young men were seen "loitering" and "possibly" caseing a gas station. The Fourth Amendment bar had been lowered

Under the Rhenquist Court -- the supposed protector of strict constitutionalism -- the bar was lowered still further. Even under Terry it was unquestioned that "[a] detention ... occurs whenever an officer accosts an individual on suspicion that the person 'may be personally involved in some criminal activity..." (In re Tony C. (1978) 21 Cal.3d 888, 895; Terry, at pg. 16, 19 ["when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.") However, in a series of cases beginning with United States v. Mendenhall, (1980) 446 U.S. 544, 554 and Michigan v. Chesternut (1988) 486 U.S. 567, 573 the court began to fashion the doctrine of the Consensual Encounter.

Under the Consensual Encounter doctrine a person is not detained "whenever" an officer "accosts" an individual and starts asking official questions. Oh no. The person so approached is free to leave. If he stays put and answers questions, it is entirely his free choice to do so and no detention had taken place. Of course, the cop is equally free to question, observe and suspect whatever he wants during this consensual chit chat between free and equal citizens of these United States. And should he, quite perchance mind you, observe somethings that triggers a reasonable suspicion in his ever-alert-for-crime mind, well.... he's hardly to be faulted for that, now is he? Oh no... an individual is detained only when he is physically restrained or submits to a "show of authority". The question is whether "reasonable person would have believed that he was not free to leave." (Mendenhall, supra, at 554.) This applies even when immigration agents board your bus and hover over you in your seat. After all, "leave" really means decline to cooperate, and although you can't really leave, you are entitled to cross your arms, stick your tongue out and tell the ICE man to go to hell. (Florida v Bostick (1991) 501 U.S. 429.) If, as it turns out you misjudged the degree of your non-consenting freedom and got the crap beat out of you, well you always had a case you could take to the Supreme Court. (Brown v. Texas, (1979) 443 U.S. 47.)

Like most of what passes for jurisprudence under the Rhenquist Court, the Consensual Encounter doctrine has a patina of reasonableness. But it is only a patina. Like most of the rules cobbled out by that Court, it is a trap for the unwary. The myriads of lesser justices that dot our fair land, are not unaware of this. One dissenting judge in a California Appellate court put it this way:

Yossarian fn. 1 would not be surprised. If an individual does not submit to a legally unprovoked show of police authority, the United States Supreme Court tells us there is no seizure until the person is physically brought to a halt. (California v. Hodari D. (1991) 499 U.S. 621) But if the individual does submit, there still is no seizure in most instances, according to the court. (INS v. Delgado (1984) 466 U.S. 210.) This paradox is explained by the court's continuing indulgence in the fiction that a citizen's submission to police questioning and demand for production of identification (or identifying information) does not amount to a seizure.

(Diss., Cosby, J, People v. Brouser (1994) 26 Cal.App.4th 1280)

In sum, although the historical starting point was whether the police had probable cause to effect a restraint ("seizure") on a person, the end-question now is whether a person would feel free to leave. The Fourth Amendment has simply been inverted inside out.

Nevertheless, even this shameless perverion of constitutionalism has its limits. The test for the existence of a consensual encounter remains whether a reasonable [person] would feel free to decline the officers' request or otherwise terminate the encounter.” (Florida v. Bostick, supra, 501 U.S., at 430) and, here, whether Officer Dickerson “communicated to [defendant] that he was not at liberty to ignore the police presence and go about his business." (Michigan v. Chesternut, supra, 486 U.S. at 569.)

Thus in this case, it was absolutely clear that, as a matter of law, defendant was not free to throw his car into reverse and leave Officer Dickerson standing on the curb in a cloud of exhaust. In fact, defendant was not even free to roll up his window and turn up the Salsa on his radio to ear splitting levels. He was not free to do any of that because, as the person seated in the driver's seat of a vehicle, he was obligated by California Law to submit to the "request" and produce his license.

Of course, the fact that Officer Dickerson flashed his light into defendant's face and persisted in asking official questions even when defendant indicated his desire "to end the encounter" only buttressed the conclusion that a reasonable person would not feel free to decline to cooperate. But the determinative fact in this case was that by law defendant was required to stay and compy with Dickerson's request.

Therefore, a detention took place, and since Dickerson testified to no reason or even suspicion for accosting defendant, the detention was illegal;' and anything observed or seized during an illegal detention is itself illegal.

Court of Appeal Opinion

"Consensual encounters do not trigger Fourth Amendment scrutiny. Unlike detentions, they require no articulable suspicion that the person has committed or is about to commit a crime. The United States Supreme Court has made it clear that a detention does not occure when a police officer merely appraoches an individual on the street...and assks a few questions... Only when the officer by means of physical force or show of authoirty in some manner restrains the individual libert, does a seizure occur"

"Defendant seems to suggest that that any inquiries by a police officer that are ‘related to law enforcement purposes’ are necessarily intimidating. ... We are aware of no authority for the proposition that a police officer’s conversation during a consensual encounter may not be related to law enforcement. .. A reasonable person would not be intimidated by the simply fact that a police officer's inquiries during a consensual encounter were related to law enforcement” (Ibid)

Critique

The Court of Appeal opinion is a shameless piece crap. The court's own recitation of the general rule indicates that it knows perfectly well what the rule is. "Intimidation" is not the issue and nowhere did defendant's argument make any allusion to "intimidation". It did not make any such allusion because (as Justice Cosby explained in Brouser), although we all know that any confrontation with a cop is psychologically intimidating as a matter of reality and fact, it is settled that the Consensual Encounter issue does not depend on actual intimidation.

In addition to crap, the opinion also begs the question. The issue is not what cops can or cannot talk about during a consensual encounter but whether this encounter was consensual in the first place.

As bad as the Court's opinion itself is the fact that under state rules, it can "de-publish" the opinion so that it's hatchet job does not appear in the official reports and so that the general public does not know what garbage is flung about in secret in the name of "justice". This handy device of secrecy allows the courts to deny defendant his equal right of redress with impunity from even public scrutiny.

Once again, thus is law in the Later Empire.

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A Judicial DIME Bomb

Facts:

Using a ~sealed warrant,~ police searched defendant's home and seized small amounts of drugs. Upon being charged, defendant brought a motion in the magistrate's court to traverse and suppress the warrant. After the motion was denied, defendant pled guilty, reserving the right to appeal the denial of his suppression motion.

On appeal, the prosecution moved to dismiss the appeal on the ground that the motion to suppress had not been renewed in the superior court as (allegedly) required.

Issue:

When a defendant enters a conditional plea of guilty in magistrate's court, reserving the right to contest the seizure of evidence on appeal, is he required to renew his motion in the superior court and, if so, does his failure to do so deprive the appellate court of jurisdiction to hear the appeal?

Argument: No

1. Penal Code section 1538.5 subd. (m) explicitly provides "A defendant may seek further review of the validity of a search or seizure on appeal from a ...plea of guilty... provided that at some stage of the proceedings prior to conviction he or she has moved for ... the suppression of the evidence."

2. Subdivision (m) explicitly allows conditional pleas of guilty reserving the right to contest the lawfulness of a precursor search on appeal. The sole requirement is that the legality of the search be contested "at some stage" in the lower court proceedings. There is no requirement that the issue be contested more than once; nor is there any requirement that the issue be raised in superior court proceedings as opposed to proceedings in the magistrate's court. The section does not require any further action "If there is no ambiguity in the language, we presume the Legislature meant what it said and the plain meaning of the statute governs." (People v Snook (1997) 16 Cal.4th 1210, 1215)

3. The alleged "failure" to renew the motion in the inferior courts is not a jurisdictional defect in any event. It is well established that the timely filing of a notice of appeal is the sole and necessary step for vesting appellate jurisdiction in a court of appeal. (People v. Chavez (2003) 30 Cal.4th 643, 650). Appellant's notice here was timely filed and clearly indicated that it was taken from a guilty plea based on denial of his suppression motion. California Rules of Court provide that, in such cases, the notice of appeal is sufficient if it indicates that the appeal is taken from "the denial of a mtion to suppress evidence under Penal Code section 1538.5..." (Rule 8.304, subd. (b)(4).)

4. Under the plain and unambiguous language of the Penal Code and Rules of Court, the court of appeal had jurisdiction to hear the appellant's case and appellant had not forfeited his suppression issue by defaulting on any further procedural requirement.

Appellate Court Ruling:

Stay tuned.

Critique:

Checko, Excited Chickens and a Portuguese Gentleman

Facts

Alejandro R was stabbed during an after-hours melée outside Dominic's Bar. Alejandro testified that as the patrons emptied out of the bar, an unknown female approached him and accused him of damaging her car. During the shoving match that followed, the woman punched Alejandro in the nose and a man came over and hit him in the jaw. Alejandro tried to run away but "they" chased after him and threw him down. Several people were coming at him from all sides at which point he felt that he was stabbed on the left side of his torso. He never saw who stabbed him but, while lying on the ground, heard people saying "Checko did it."

Anna B. testified that she knew defendant by his nickname "Checko". She had been to Dominic's Bar that evening but was still inside when the stabbing occurred. When she came outside the incident was over but she heard unidentified people saying that "Checko did it".

Joyce L. was also present and testified that the fight had been started by a white female who had accused Alejandro R of having kicked her car. The woman began hitting Alejandro who then grabbed her arm and told her to stop. At that point a "bunch of people started fighting and stuff". According to Joyce, defendant wrestled Alejandro to the ground and "that's when they pulled out something and I seen him pull out something." Joyce could not say, however, which side Alejandro had been stabbed on.

At trial over defense objection, the prosecution was allowed to introduce the hearsay statements of the people who were heard to say that "Checko did it". The trial judge allowed the statements to come into evidence under the so-called "excited utterance" exception to the rule against permitting hearsay testimony.

Issue-1:

Was Anna B's hearsay testimony that she heard people saying "Checko did it" properly admitted as an "excited utterance"?

Issue -2:

Even if the testimony was properly admitted under the "excited utterance" exception to the hearsay rule, was defendant deprived of his consitutional right to confront witnesses by not being able to cross-examine the unkown people who had (allegedly) said that he had "done it"?

Argument-1.

Anna B's hearsay testimony was improperly admitted because there was no determining whether or not the statement "Check did it" was made in an excited state of mind and whether the statement reflected something that was actually perceived by the declarant.

Background: The Hearsay Rule prohibits testimony that repeats what somebody else said outside of court; i.e. any testimony that in effect says, "I heard him say...." The reason for the rule is that there is no way to "test" the truthfulness of the alleged statement without being able to cross-examine the person who actually made it. However, courts have allowed many exceptions to the Hearsay Rule. One of those exceptions involve excited utterances. In California, this exception is found in Evidence Code § 1240. That section allows hearsay testimony if the out-of-court statment (1) describes or explains an "event perceived by the declarant" and (2) was "made spontaneously while the declarant was under the stress of excitement..." The theory is that a person who is an excited state of mind does not have time to calculate or fabricate a lie and therefore any simple statements of perceived fact are sufficiently trustworthy to be accepted as true without further cross examination

In the present case, there were no facts showing that the persons or persons who made the statement actually saw "Checko do it". In addition, there were no facts showing that they were in an excited state of mind when they made the statements. Anna B's testimony that she heard people say "Checko did it" in no way even implied that these people actually saw what they alleged. It is quite possible that the people who made this statement were repeating something that someone else said. By the same token, it is impossible to say that the person or persons making this statement were in an excited state of mind. The picture that comes to mind is that they were running about excited like excited, speaking chickens, but that picture is no more than an unfounded assumption, given that Anna B never testified as what the apparent mental state of these people was and stated that when she came out of the bar and heard the alleged statements, the stabbing had already occurred. Without knowing details about how and when the statements were made it is impossible to make a determination as to their circumstances and reliability. Put another way -- it is impossible to admit hearsay statements of unknown declarants. That is the very evil the Hearsay Rule was designed to prevent.

Argument-2

Even supposing, hypothetically, that Anna's hearsay testimony qualified as an admissible "excited utterance" its admission violated defendant's Due Process rights under the Confrontation Clause as construed by Crawford v. Washington (2004) 541 U.S. 36.

Background: The Sixth Amendment guarantees the right of an accused in a crimianl case "to be confronted with the witnesses against him." (Delaware v. Van Arsdall (1986) 457 U.S. 673, 678). "The right of confrontation and cross-examination is an essential and fundamental requirement of the kind of fair trail which is this country's constitutional goal." (Pointer v. Texas (1965) 380 U.S. 400, 405.) Nevertheless, "fundamental" as it might have been, the Supreme Court allowed "the goal" to be achieved by other means without actual confrontation. In Ohio v Roberts (1980) 448 U.S. 56, the court affirmed that hearsay statements could be admitted without actual confrontation provided a judge screened them and determined that they had sufficient "indicia of reliability". Thus, for example, if a hearsay statement qualified as an excited utterance it would be sufficiently trustworthy to be admitted even if the person who made the statement could not be cross-examined. In this way, the "purpose" of the constitutional right would be assured.

However, in Crawford v. Washington, the Supreme Court reversed itself, stating that "where testimonial statements are at issue the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actual prescribes: confrontation." (Id, at pp 68-69.) Writing for the majority, Justice Scalia paraded a long roll of absurd and inconsistent "judicial reliability determinations". A procedure that produced such inconsistent results could hardly be deemed capable of producing something called "reliability." No -- the Constitution did not prescribe some pie-in-the sky "goal", it prescribed a specific procedure: actual confrontation. Ohio v Roberts was overruled.

But in the law, nothing is ever settled. There are many kinds of statements that are offered to prove different matters and not all of them are testimonial. Statements of two people in a fight threatening one another, or statements given to police or paramedics during an emergency, and statements made during contract negotiations are all examples of non-testimonial utterances which would not always trigger a right to confront the witness. What is "testimonial" for purpose of the Confrontation Clause is, as of now, a land without borders.

Although Crawford left open the precise limits of what qualified as "testimonial" statements, it did review the judicial history of the Confrontation Clause dating back to the early 17th century. Based on these historical precedents, Crawford held that certain types of statements were indisputably testimonial. These included:

1. statements given at formal prior judicial, legal hearings or affidavits;
   
2. statements given to police during criminal investigations or interrogations, and
3. statements "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." (Id. at pp. 51-52.)

The statements in this case clearly qualified as type (3) because they were essentially accusatory. Whoever made the statement was undeniably imputing a crime to "Checko". Whether that was an honest belief or whether it was a calculated attempt to shift blame, the very purpose of the statement was to incriminate defendant. No reasonable person would understand the statement to be anything other than "testimony against" Checko.

In addition, since Crawford was decided, the Supreme Court has amplified on what kind of statements qualified as "testimonial". In Davis v. Washington (2006) 547 U.S. __, the Supreme Court cautioned against concluding that "statements made in the absence of any interrogation are necessarily non-testimonial." (Id at slip pg. 7.) It cited Lord Cobham's letter to Lady Arabella, at Sir Walter Raleigh's Trial, in which Cobham implicated Sir Walter Raleigh in treason against the King.

Sir Walter Raleigh's Trial?

Background: In 1603, Sir Walter Raleigh was tried for treason on the grounds that he had plotted a Catholic overthrow of Kings James I. Found guilty on hearsay testimony, Sir Walter was imprisoned in the Tower and ultimately beheaded. Lord Cook, the prosecutor, later admitted that the case had been a disgrace to English Law and this travesty of justice became the seed for the Right to Confrontation in our Bill of Rights. The Crawford Case relied heavily on Raleigh's Case 2 (1603) How. St. Tr. 16 noting that "the justice of England has never been so degraded as by the condemnationof Sir Walter Raleigh" (Id., at pg. 44, citing (1 Jardines State Trials (1832) 418, here )

Analysis of Raleigh's Case shows that the statements at issue in this case would clearly have been considered "testimonial" for purposes of the Confrontation Clause. At that trial, Lord Cook produced a variety of statements given by witnesses to magistrates during secret closed interrogations. These type (1) statements included Lord Cobham's confession. But in addition to these declarations and to Lady Arabella's Letter, there was another item of evidence that was pure hearsay scuttlebutt, viz:

"The prosecution responded to Raleigh's complaints against being denied an opportunity to confront his accusers not by producing Cobham but by calling a boat pilot named Dyer, who testified that while in Lisbon a Portuguese gentleman told him, "Your king [James] shall never be crowned for Don Cobham and Don Raleigh will cut his throat before he come to be crowned." Raleigh protested this evidence on the ground that, "This is the saying of some wild Jesuit or beggarly priest; but what proofis it against me?" The prosecutor Lord Coke, responded , "It must perforce arise out some preceding intelligence and shews that your treason had wings." (1 Jardine op.cit at pp. 389, 436.)

The hearsay statements of the pilot Dyer are strictly analogous to Anna B's statements in this case. In both instances, the witness was repeating the accusation of some unknown declarant. The Supreme Court in Crawford and again in Davis relied heavily on Raleigh's Case as the basis for its ruling on what the Confrontation Clause requires. This ancient and seminal precedent of Anglo-American law, shows that defendant in this case has a constitutional right to confront his unknown accusers, and admission of the hearsay testimony that "Checko did it" was constitutional error.

Although Joyce L. did testify that defendant stabbed Alejandro, her testimony was vague and equivocal, with repeated reference to things done by "they" and "them". Where constitutional error is inovlved it must be shown beyond a reasonable doubt that the error did not contribute to the verdict. This cannot be shown in this case, since it is likely that given Joyce's vague testimony, the jury was fatally influenced by the seemingly "corroborating" hearsay statements that Checko did it.

Court of Appeal Opinion

The Court of Appeal ruled that Anna B's heasay qualified as an excited utterance under the rule of People v. Provencio (1989) 210 Cal.App.3d 290 which held that "the fact a declarant's identity is unknown does not preclude admission of a spontaneous statement." (Id, at p. 302.)

With respect to the Crawford Confrontation claim, the Court of Appeal held that the issue had been waived because defendant's attorney did not object to the hearsay statement under "Crawford" by name.

Critique

Reliance on Provencio, at this point, is very questionable jurisprudence. Even under the pre-Crawford rules, it is simply absurd to think that the circumstances of a statement's utterance can be examined for excitability, perception and trustworthiness where the people who made the statement are unknown.

Provencio is an example of hard cases making bad law. In that case an on the scene witness identified the defendant by sight as the person he saw fleeing a house that had been burglarized. In addition he was allowed to testify that he heard unidentified children yelling "there goes Angel" (the defendant's name). The Court allowed the hearsay statement on the ground that "modern" law only required that the statement at issue be "excited". That is wrong, Evidence Code § 1240 has at all times required a two pronged showing which is impossible without knowing who saw what.

In all events Provencio is distinguishable. In that case the unknown children were not accusing Angel of anything. They merely identified him by name, as a person known as "Angel". They did not identify him as the burglar. It is common sense that people normally do not go about mis-naming someone. A person known as "John" is not usually pointed out as "Sam". In this unique situation the childrens' statements did have "indicia" of reliability. But they were also irrelevant given that the witness at trial identified the defendant as the person he himself had seen that night. Here, the hearsay statement levelled an actual accusation of criminal conduct, which no one (except possible Joyce) had actually seen.

The Court's refusal to hear the Crawford issue is another deplorable case of letting the prosecution off on a technicality. It is true objections at trial are supposed to be specific in order to prevent game playing on appeal. But how specific depends on the state of the law. Where the law itself is unsettled (as in this case where there was no complete definition of "testimonial" statements) it is normally sufficient to make a general objection. This is particularly the case where, as here, the subject matter of the objection involves constitutional issues of great general importance.

But that's just my opinion.

©Justin Law, 2009.

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Spectral Evidence & Spectral Appeals

Facts.

After getting out of prison for burglary, Jack (defendant) shacked up with Fae, who ultimately became pregnant by him. Shortly after giving birth to Jack’s son, the two got into a heated argument when Jack drove up to the house and called out for Fae who came to the porch. The two were yelling back and forth when Jack threw some photos out the car window and, drawing his hand across his neck, said he would “level” Fae’s family. As Fae called 911 she yelled back, “You do that.” Sometime later, the police arrived and took a report. They told Fae she should nail her door shut to protect herself. Taking their advice, she did. Eventually the prosecution filed charges against Jack for criminal threats.

At trial, Fae testified to the above and, in addition, that Jack’s threats had made her afraid for her safety. To corroborate the reasonableness of her alleged fear, she was allowed to testify that: defendant had told her he had disemboweled an inmate in prison in order to retrieve drugs hidden in his stomach and that he had killed his ex-wife’s lover and dumped the body in a lake. Fae stated that knowing these things, caused her to take Jack’s statement that he would “level” her family seriously.

There were no reports, prior convictions or evidence of spousal abuse by defendant. Prison records did not contain any reports or information concerning an alleged disembowelment. Nor were police investigators ever able to find evidence or corroboration of a murder involving the dumping of the body in the local lake

The jury returned a verdict of guilty and appellant was sentenced, under Three Strikes, to life in prison.

Issue:

Was Fae’s evidence of alleged past crimes by defendant properly admitted as corroboration of her fear?

Argument

1. Fae’s hearsay evidence of supposed prior murders by defendant was improper self-corroboration. The purpose of corroborative evidence is to provide some independent verification of a witness’s testimony, and here the supposed “corroboration” came from the witness herself.

2. While Fae could testify that appellant made the threat to “level” her family, and while should could testify that she was made afraid by this statement, it was nothing but bootstrapping to allow her to give evidence of other alleged crimes in order to substantiate that her fear was reasonable.

Background: Criminalizing “threats” runs the risk of penalizing free speech which often makes threats or exagerrated statements as jokes or for rhetorical effect. To draw the line between legitimate and criminal speech, the court’s require several things: (1) that the person addressed actual feel fear and (2) that the fear be objectively reasonable. It is not enough for a person to simpy say that they were afraid. It is not even enough for them to actually have been made afraid. The fear has to be actual and reasonable -- the kind of fear a normal, average, person would feel in the same situation. The evidence of defendant’s alleged past murders was offered to prove that Fae’s fear was reasonable. But this evidence came entirely from Fae’s mouth with no independent verification at all. How do we know she wasn’t make it up?

3. Caselaw has universally held for close 300 years that evidence of past crimes is extremely prejudicial, in that it biases the jury against the defendant, and predisposes them to convict him, without examining the strength of the actual evidence on the present crime, simply because being a criminal he “probably” did it.

Appellate Court Ruling.

The court refused to reach the issue and let the sentence stand because, it said, there was no evidence in the record as to what proposed testimony was before the trial court when he made his ruling allowing the evidence.

Critique.

The court’s claim that there were insufficient facts in the record to adjudicate the claim is not substantiated by the record itself.

Prior to trial, the parties argued over whether Fae’s evidence of alleged crimes should be admitted. The reporter’s transcript shows them arguing over various numbered items that the prosecution wanted to introduce and listed in a written motion. With respect to Fae’s evidence, either the court or one of the attorneys referred to the item number in the list, giving a brief verbal description; e.g.. Okay, now, item number 3 - this business about him telling her that he disemboweled somebody in prison to retrieve the drugs....; and, Lets go to item number 9, that he told her he had killed his ex-wife’s lover and dumped the body in the lake. etc.

Notwithstanding these descriptions the Court Appeal asserted that it could not really evaluate what went on at the hearing without having a copy of the prosecutor’s written motion, even though the written motion itself was not part of the normal appellate record.

The court’s reasoning is inadequate. For the transcript as it stood to be insufficient, one would have to suppose that the trial court and counsel were engaged in creative fantasizing. The issue on appeal was not whether they were engaged in creative fantasizing but whether Fae was. To avoid that issue, the Court of Appeal would have us suppose that court and counsel were talking about something entirely different than what they are reported to have discussed.

As bad as being denied a full appellate review on the merits, the court’s ruling leaves spectral evidence alive and well in California.

At the Salem Witch trials back in the 1650’s, Sarah Goode, Sarah Osborne and others were accused of being witches and engaging in witchcraft; among other things, inducing a wart on one of the victims and so on. The victims were young girls aged 9 and 11. To substantiate their claims the victims were allowed to introduce “spectral evidence” -- this evidence consisted of them falling on the floor in court, shrieking and pointing hysterically at the witch’s spectre floating about the courtroom. Of course no one else could see it. But the evidence was admitted anyway.

Why? Because the judges, being well trained in both theology and the English Common Law ruled that the Devil could not use a person’s shape without that person’s permission and therefore when the victim claimed to “see” the ghost of a specific person, it was evidence that the defendant was in league with the devil. In modern lingo, the witnesses were allowed to self-corroborate.

Welcome to the 17th Century. In California the hollow spectre of an appeal has allowed spectral evidence to fly again.

But that’s just my opinion.

The Steak Thief

Facts

1. Defendant, a man in his late 30’s was convicted of stealing a steak and assault with a knife. The video cameras showed him pocketing the steak and exiting the store whereupon two body-builder guards in plain clothes grabbed him. Defendant pulled back and the guards fell upon him and pummeled him into a bloody mess. If unprovoked, such a beating would expose them and the store to civil liability; but the guards claimed that defendant had pulled a knife on them. Although defendant had a knife on his person the video of the incident did not show him pulling it out or attacking anyone with it.

2. At trial defense counsel allowed the jury to hear evidence that defendant had been previously convicted of burglary and child-endangerment. The jury returned a verdict of guilt and defendant was sentenced to two consecutive life sentences in prison on account of his prior “strikes”. Under this sentence, defendant’s parole date is scheduled for sometime after he will have been paroled into the next world.

Issue:

Was defendant deprived of his constitutional right to effective assistance of counsel on account of his lawyer’s decision to let the jury hear about the prior convictions?

Argument

1. The U.S. Constitution guarantees the right to effective assistance of counsel at trial. (Strickland v Washington )

Background: The right exists, because most people do not understand the complexities of law and legal procedures. In addition, no one is on top of things when they are locked up or under the stress of being prosecuted. If a defendant does not get competent representation, his conviction will be reversed because our system is based on adversarial testing and, when one party has not been effectively represented, there was no real “test” or “trial” and the verdict cannot be deemed reliable. The rule is similar to recognizing that a world heavyweight boxing title doesn’t mean much if the competition was bantam class.

2. Every English and American court for over 200 years has recognized that evidence of prior criminal conduct is “inherently prejudicial.” [Many Citations]

Background: The issue at any trial is whether the prosecution has evidence that stands on its own two feet to prove that the accused did what he is charged with having done. The issue is not whether he did something bad before, because that case is over and done with. However, most people when they find out that a defendant has committed a prior crime, tend to think “Ah so..... well he probably did this one as well....” Perhaps, but “beyond a reasonable doubt” means more than “probably”. Just as importantly, once evidence of prior wrongdoing gets in, we can no longer tell whether the jury really put the evidence in this case to the test. Did they really give it a hard look on its own merits, or did they make up the difference with a “well..... probably...”?

Because prior convictions are “inherently prejudicial” they can be brought up in very few and limited situations. For example, if a defendant testifies, plays the angel and says he never did nuthin’ wrong in his life, he can be impeached with the fact that he did. Otherwise, the existence of prior convictions are relevant only for sentencing purposes and so the defendant can demand that any evidence of prior convictions be heard by the judge alone, away from the jury; and virtually every defense attorney will make that demand.

3. The California Supreme Court has ruled that the chief duty of defense counsel is to work to exclude by all legal means any evidence that is damaging to the defendant. After all who needs to be "defended" by someone who just stands by and watches you get steamrolled?

4. Therefore, given the lack of video evidence of an assault and the guards’ motive to confabulate a protective story, the decision to let the jury hear of the defendant’s prior convictions was prejudicial incompetence.

Appellate Court Ruling

The appeals court affirmed the judgment, holding that counsel had not been ineffective because (1) he had not made a decision whether or not his client would testify, and if the client were to have testified, he would have been subject to impeachment with his prior convictions. In addition (2) counsel could have had a valid tactic in hoping that the jury would engage in “nullification” and refuse to convict out of pity once they knew defendant was subject to three strikes.

Critique

1. The court’s first rationale for affirming an otherwise outrageous sentence was ill conceived. A valid tactical decision cannot be based on another tactical decision which has not even be made. I have my thumb my ass, is not effective performance.

2. Furthermore, before a defendant can be impeached with prior convictions he is entitled to a hearing at which the judge will weigh how much of the record the jury can hear. (The Castro/Beagle Rule) In most cases, the number of convictions and their details are limited. The jury will be told that the defendant was “convicted of a felony” because this is sufficient to take away any false halo. But the jury doesn’t need hear that he disembowled his 80 year mother because these details would inflame them. Thus, in this case, the competent procedure would have been to first resolve the possible impeachment issues.

3. The appellate court’s second rationale is equally misbegotten. The principal defect is that defense attorney is prohibited by law from arguing punishment. He cannot say, that his client should be acquitted because the punishment he would be subjected is too severe. The law itself prevents him from using this tactic. It is an utter contradiction for an appellate court to rule that counsel had a valid tactic in adopting a tactic that the law explicitly prohibits.

4. It is true that juries have the power to nullify -- that is, to acquit someone notwithstanding the evidence because they disagree with the law or the possible sentence. That is one of the reasons we have juries -- to protect us from The State Gone Mad. But in this case the jury never heard that the prior convictions were life-sentence “strikes”. Precisely in order to preclude the possibility of nullification on this basis, the prosecutor successfully excluded all references to “strikes”. Thus, not only was defense counsel barred from arguing the point, the jury never even heard what kind of sentence defendant was subject to if convicted. We don't even know if the idea of punishment or the degree of punishment even entered their minds. What we do know is that they heard of defendant's prior record and that every court for 300 years has accepted that such information is highly prejudicial.

5. Last but least, the more sociological question has to be asked: what kind of deranged society sends people to prison for life on account of a petty theft, even if accompanied by a technical assault in which no one was actually injured? When I began practicing law as a prosecutor, the case would have been plea-bargained down on the ground that the defendant had gotten the shit beat of him and that was pretty much punishment enough.

6. Instead we are now in the absurd situation where the "criminal justice system" is furiously shoveling miscreants into Moloch's Maw, while a governor who vetoed a People's initiative to amend the Three Strikes Law, is having to discharge 22,000 inmates because the Mad State of California can't afford the $30,000.00 a year it costs to keep them locked up.

But, that's just my opinion....

test

rest

Supreme Shame

This week, the United States Supreme Court covered itself with indelible, shame. It prostrated itself before the Imperial Executive's invocation of raison d'etat and denied judicial view to a German litigant who had sued the C.I.A. for kidnapping, false imprisonment and torture.

It would be unright to say that with "a stroke" the Supreme Court undid the very principle of legality upon which this country was founded. The Court was so utterly supine that its "act" of declining to hear an appeal from a lower court dismissal of the suit consisted in assuming a posture of complete judicial passivity and indifference to its own raison d'etre. A crown agent all but walked into the Atrium of Justice, pronounced two words and the court vanished itself like so much water receding into sand.

There was a time when every eighth grader understood that judicial review was the sole bulwark against the evil of secret state security courts like the dreaded Star Chamber. What made the Star Chamber infamous was not that it was irregular or arbitrary. On the contrary, like any inquisitorial court, the Chamber was governed by precise procedures designed to insure the reliability of its judgements. Except, that is, for those special procedures later embodied in the Fifth and Sixth amendments of the Bill of Rights which have been considered necessary to insure fundamental notions of fairness.

What procedures? Nothing more than the right against self-incrimination, the right to be informed of the charges, the right to confront and examine one’s accusers, the right to produce evidence in self-defense and the right to a speedy, full and fair hearing with the assistance of counsel in open court.

Why "fundamental"? Because the justness and necessity of these rights is either self-evident or it is not. These rights are "axiomatic" because they cannot be proved right or wrong. They comprise the Constitutional Faith on which this country was founded. There are arguments that can be made -- and that have been made even by certain Harvard and Yale professors -- in favor of secret proceedings, interrogations in the dark and torture. They are even "reasonable" arguments based practical calculations of risks and benefits. But, for all that, they are not "what we are about." And "what we are about" -- as a People of a certain political faith -- is reflected in the Bill of Rights and the principle of Judicial Review.

There was a time when every eighth grader had read the story of Lord Coke's confrontation with King James I when the Chief Justice approached the Throne and announced that the King himself was subject to the Law. James grew "mightily wroth" and moved to strike Coke who was ushered away. But it was a judicial shot across the bow of executive power. Three years later, in 1610, Coke handed down the decision in Dr. Bonham's Case. The problem in that case was that Bonham was not much of a doctor and had been tried, convicted and fined by the Royal College of Physicians for practicing without a license. Coke and two other judges ruled that the College could not act as a judge in a case in which it was also a party, even if Parliament had given it the "right" to do so. In rendering judgement, Coke announced that "the common law doth control Acts of Parliament, and sometimes adjudge them to be void ... as when an Act of Parliament is against Common right and reason, or repugnant...." By "the common law" Coke unmistakably meant the judiciary. As Chief Justice Marshall would put it near two hundred years later, in Marbury v Madison, "It is emphatically the province of the judiciary to say what the law is."

"What the law is..." is not a question of mere legality. After all, in Bonham's Case Parliament had passed a law authorizing his trial and conviction by the College of Physicians. But for Coke that was not enough because, in his view, that law was "against Common right and reason." To say as much was something of a judicial pun or feint of pen. Because it would have been logically nonesense to state that a law was illegal, Coke subordinated the common law to something higher -- to something he called "common reason". It is this subordination of legality to higher, concepts of due process, reason and fairness that is the foundation of Anlgo-American constitutionalism, and this subordination of law to reason necessarily entails an ultimate subordination of the Executive to the Judiciary.

Later in his career, after consistently making life difficult for his sovereign, Lord Coke went on to draft the Petition of Right one of a long line of English antecedents to the US Bill of Rights. Building on the principles announced in Magna Carta, Coke declared that all men -- not only Lords, Barons and Peers of the Realm -- had a right against arbitrary state actions and exactions. The petition declared unconstitutional certain actions of the king, such as levying taxes without consent, housing soldiers in homes, setting up martial law, and having men imprisoned, disinherited or put to death "without being brought to answer by due process of law."

Lord Coke's career illustrated that judicial review, constraint on executive power, constitutionalism and individual rights, are all strands in one seamless garment. Each implies the other and without any one the fabric unravels. Ultimately, these principles protect our right to breathe free and unshadowed by fear -- fear of unwarranted arrest, night-time detentions, renditions to dark and unknown places and torture. It was not for nothing that the bronze doors to the Supreme Court depict Lord Coke barring King James from sitting as a Judge.

Not for nothing? This week, a crown agent, in effect, pushed through these very doors and with two words -- "National Security" -- barred the Justices from sitting as Judges and denied a man the right to have his case heard in court. This was a case in which the United States Government violated every known principle of "due process" by abducting, imprisoning and torturing a man without even telling him why and on what basis it was subjecting him to such a nightmare. Like all tyrants, the Government condoned itself with the usual spew about safety and necessity. And hiding in their Mausoleum of Justice, Coke's wretched descendants did nothing. There will doubtlessly be those legal hacks who will try to explain away the Court's judicial decadence by blathering about "ripeness of issues" or the need to await the "appropriate vehicle" in the "correct procedural posture." Bullshit.

Tuesday October 9th was a funereal day for the little that was left of five hundred years of constitutionalism. Odious in the eyes of those who apprize liberty, the scum on the court have earned their place in the gutters of history.

©justinlaw, 2007