Mercury News editorial: State must fix three strikes law - San Jose Mercury News

Mercury News editorial: State must fix three strikes law - San Jose Mercury News

Blogger Bob's comment: As we struggle to pay the price for incarceration in California (and now in San Bernardino County), the local costs of more prisoners being released early due to overcrowding, maybe we need to start the dialogue [and trim the demagoguery]. Stanford University's Three Strikes Project, led by law professor Michael Romano, is trying to get on the ballot an initiative for the November 2012 ballot [whether the proposition sews the seeds of its own demise remains to be seen and how it may drive tough-on-crime voters to the polls that might not otherwise come out this year may be a concern to some]. The Three Strikes Project's stated aim is to apply the law to only serious or violent third offenders which would save money and steer the law closer to what voters intended back in 1994. The three strikes law has been used by some district attorneys to give life sentences to about 4,000 inmates who committed nonviolent crimes. The price? Per a 2010 state report, the total cost of applying the Three Strikes Law at nearly $20 billion, or roughly $35,000 a year per inmate. No one need go further than San Bernardino County DA's [Mike Ramos] traveling road show video that measures departmental success based on the number of years people are incarcerated--its like the phony assurances the US Defense Department tried to give the public during the Vietnam conflict when body counts were used to try and measure success. We should be talking about policies which improve public safety. Does incarcerating non violent offenders always make us safer. Why can't we do house arrest for convicted felons like Ramos did for the San Manual character convicted of attempted murder--opps I forgot, his Tribe were amongst Mike Ramos' supporters?

REDFLEX CAMERAS--MORE NEWS

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(1) In an article found at www.thenewspaper.com/news/36/3642.asp, it is reported that Reflex lost market share, gave their spokesperson a bonus and promised to "avoid ballot initiatives" by blocking voter access to the ballot and "create positive environment for renewals and expansion" by increasing the use of front groups to support automated ticketing machines"--wow, the Aussies want to screw with our electoral process over red light enforcement cameras?
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(2) In Vista, California, a judge threw out a Redflex camera system based citation where the defense lawyer alleged that "unsupervised civilians access to private DMV information was a violation of 21455.5 because that section does NOT authorize such disclosure"--keep notes folks!!
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Blogger Bob's comments: I won a case in a superior court appellate department on more traditional foundation and hearsay grounds (People v John Macias). I also argued in my briefing the DMV issue but got no where with the three judge panel I was in front of (Powell, Kohn and Brisco as I recall). Too bad the constitution is so badly butchered by some judges and we do not have uniform interpretations. On another note, didn't the City of Victorville authorize the unbridled access to DMV records as well and Angeles Valles and Ryan McEachron signed a new contract authorizing that--great people to consider when you vote for your next Congressman!!

A New One--to try and get a new trial, plead your sentence was too light?? Only in Cook County!!

An Elgin man who pleaded guilty to murder has won a new trial with an unusual legal argument — that his 30-year prison sentence was too soft.

"Benny Deanda Jr.'s position that his sentence was too lenient is almost unheard-of for obvious reasons, but in this case Deanda wanted another trial so he could put on a self-defense case for the 2001 slaying, said his court-appointed attorney Levi Harris.

"Ninety-nine out of 100 times, it would be inadvisable to do it," said Harris, an assistant defender with the state appellate defender's office. "Here, he wanted another shot (at a trial)."

Deanda, 26, now faces up to life in prison if he's found guilty at trial. Harris said his client is aware his sentence could more than double".

Chicago Tribune article link: Convicted murderer wins new trial by arguing sentence too light

WHY ISN'T RAMOS INVESTIGATING NURSERY PRODUCTS & the COUNTY OFFICIALS INVOLVED??

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Nursery Products (the proponent of the sludge-to-agricultural-grade-composting operation) argues in a declaration filed in Case No. BCVBS 09950 they cannot pay their legal obligations to the Center for Biological Diversity [an attorney fee judgment (reduced to a settlement agreement) arising from the CEQA (California Environmental Quality Act) litigation involving the sludge to agricultural grade compost operation they want to put upwind from Hinkley and Barstow].
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There is apparently a judgment debtor exam scheduled--that should be interesting!!
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The issues as Blogger Bob sees it ???
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1. Why did the County approve this apparently undercapitalized operation dealing with waste products? [if there is a spill or a release of contaminants, they don't have apparently the money, so did they lie in their application to the county, not that Mitzelfelt who told the Sun he wanted to find Nursery Products a location in Hinkley after they got booted out of Adelanto, would care??]
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2. Who is paying for their lawyers to constantly fight this? [since paying legal fees is not what their business lender (reference to a "Small Business Association" loan)can pay--who are the shadowy characters behind this? Isn't it illegal to use surrogates in the permit application process where public health and safety issues are involved and financial capacity is a major issue??
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3. Who is really behind this sludge dumping operation? Someone has to have paid for the multiple sets of lawyers hired and if the HelpHinkley.org and Center for Biological Diversity lawyers' fees were roughly $400,000 for one set of lawyers, who is paying Nursery Products' three sets of lawyers (fees could be in the millions)??
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4. Who on the Board of Supervisors has taken campaign contributions from Meberg, Nursery Products or their lawyers in exchange for their votes (Supervisor Rutherford voted to approve Nursery Products' conditional use permit admitting she had not read the application package or the oppositions to it, so maybe she is just stupid and thinks its ok to require sludge to composting operations to be covered and biofiltered in her part of the court, but not for the High Desert)?
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5. If Nursery Products can't pay their legal bills now, is it a stretch to imagine they can ever run this right!

JUDICIAL ABUSE in GEORGIA...An Interesting Read

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In Georgia, the Chief Judge of the Brunswick Judicial Circuit is being prosecuted for some incredible abuses of power.

Chief Superior Court Judge Amanda F. Williams was charged late Wednesday with "willful misconduct in office" and "tyrannical partiality."

Williams was charged in a 31-page "notice" with 12 counts alleging that Williams violated judicial canons by jailing defendants indefinitely and then lying to cover up her practice to the oversight commission about the practice.

The oversight commission's notice also accused Williams of improperly allowing members of her family to litigate cases in front of her, allowing her social and political relationships to influence her judicial conduct, and improperly endorsing a local candidate for district attorney.

The charges claim Williams issued ex parte orders on substantive legal matters without the knowledge or input of all parties involved in disputes, held hearings in chambers without a court reporter present, improperly jailed people who appeared before her, demonstrated an open bias against defendants and used "rude, abusive and insulting language" in court.

Sanctions—which would be handed down by the Georgia Supreme Court based on the recommendation of the judicial commission panel could range from a public reprimand to removal from the bench.

The breaking story can be found at
http://www.dailyreportonline.com/Editorial/News/singleEdit.asp?l=101319912111
[the DailyReportOnLine.com for Nov 11, 2011 & the Staff Reporter at DailyReportOnLine.com is R. Robin McDonald would can be reached at rmcdonald@alm.com]

Blogger Bob's comment: The article and case is worthy of a read and follow-up; as to the incarceration orders, where were the public defenders? As to the civil abuses, where are the legal aide folks? Endorsing a District Attorney in a race---mmh, that does not happen here when judges in San Bernardino County attend fund raisers for an incumbent? Does it?

America’s Grand Jury System: A Blueprint for Reform

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A press release by the National Association of Criminal Defense Lawyers announced the release of a report suggesting some reforms for the grand jury system (in particular New York and Colorado). An interesting read with links for follow-up:
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"America’s Grand Jury System: A Blueprint for Reform
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Washington, DC (November 10, 2011) – National Association of Criminal Defense Lawyers ("NACDL") today releases a groundbreaking new report on restoring and reforming the grand jury system-- Evaluating Grand Jury Reform in Two States: The Case for Reform. This research reflects an in-depth study of grand jury reform in two states – New York and Colorado. In conducting this study, researchers Erin Crites, Jon Gould and Colleen Shepard of the Center for Justice, Law & Society at George Mason University studied the experiences prosecutors, defense lawyers and retired judges. Four key reforms recommendation emerge from the research: (i) defense representation in the grand jury room, (ii) production of witness transcripts for the defense, (iii) advance notice for witnesses to appear, and (iv) the presentation of exculpatory evidence to the grand jury.
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In order to return the grand jury system to the independent and legitimate function envisioned by the framers of the Constitution, there is much to be learned from the Colorado and New York systems. This report illustrates how reforms such as having a witness’s lawyer in the grand jury room and requiring prosecutors to present exculpatory evidence to the grand jury are viewed by both sides of the courtroom as increasing the accuracy, effectiveness and legitimacy of the grand jury. In addition, as the report’s findings uniformly demonstrate, NACDL’s proposed grand jury reforms have no harmful effects.
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As former Deputy U.S. Attorney General Larry Thompson wrote in the foreword, “For an accusatory process that on its face emphasizes the role of the citizen, the grand jury is a patently un-democratic body…I say this having sought countless indictments before grand juries and having overseen the Justice Department’s work to promulgate uniform rules for federal prosecutions, including grand jury proceedings. Simply put, the federal grand jury exists today, for the most part, as a rubber stamp for prosecutors.”
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NACDL Executive Director Norman L. Reimer explained, “The Fifth Amendment to the U.S. Constitution provides that ‘[n]o person shall be held to answer for a capital or otherwise infamous crime, unless on presentment or indictment by a grand jury.’ Unfortunately, today’s federal grand jury system, and indeed that of many states, bears no resemblance to the independent body familiar to America’s founders.”
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Evaluating Grand Jury Reform in Two States: The Case for Reform marks an important contribution to the public discourse and efforts to reform a broken grand jury system.
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The full report is available here [http://www.nacdl.org/WorkArea/linkit.aspx?LinkIdentifier=id&ItemID=22943]. A podcast message from NACDL Executive Director Norman L. Reimer is available here [http://www.nacdl.org/multimedia/grandjurypodcast.mp3]".
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Also for more information contact: Ivan J. Dominguez @ National Association of Criminal Defense Lawyers 1660 L St., N.W., 12th Fl, Washington, D.C. 20036 * Tel. 202-872-8600 * Fax 202-872-8690 for further information.

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Is a Life Sentence for Minors Cruel & Unusual Punishment? SCOTUS to Decide It Seems...

The United States Supreme Court agreed to decide a pair of cases[Miller v. Alabama and Jackson v. Hobbs] challenging the constitutionality of life sentences for juveniles convicted in slayings committed when they were 14. The certiori writ claims the sentences of life without parole are cruel and unusual punishment and petitioners seek to expand on the Supreme Court's 2010 decision in Graham v. Florida that held sentences of life in prison without parole are unconstitutional for juveniles who have not been charged with murder.

One of the youths in the new cases accepted by the court, Evan Miller of Alabama, received a life sentence after he and another youth beat a neighbor in 2003 and set fire to his home. The neighbor died of smoke inhalation. In the other case, Kuntrell Jackson of Arkansas was convicted for his part in the robbery and shooting death of a video store clerk in 1999. Jackson has maintained he was the lookout.

Kamla Harris Not Joining New York's AJ Eric Schneiderman's Mortgage Fraud Investigation? Why?

An interesting November 7, 2011 article by Matt Stoller [former Senior Policy Advisor to Rep. Alan Grayson and a fellow at the Roosevelt Institute. You can reach him at Stoller@gmail.com or follow him on Twitter at @matthewstoller] called "50 State Settlement Chatter – $65 Million of Fundraising and the Kamala Harris Network" [found at http://www.nakedcapitalism.com/2011/11/matt-stoller-50-state-settlement-chatter-%e2%80%93-65-million-of-fundraising-and-the-kamala-harris-network.html], if true explains much about the lackluster approach to protecting consumers victimized by mortgage fraud in California.

California Attorney General Harris has positioned herself to either be the champion of consumers or the banking lobby. Commentators have either seen her as a progressive rising star or as another democratic hack.

Understanding how Harris thinks about politics matters as it kinda clues one into what she is likely to do next (or not do).

In Matt Stoller's article he comments:
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"Harris’s decision-making seems to be driven by personal connections and fundraising networks. This is not at all unusual, but it does contrast a bit with other types of public servants, who often see their job as serving the law itself. So what do her personal connections and fundraising networks look like?
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Well, largely she shares them with President Obama, who endorsed her late in 2010 for the AG office. Her brother-in-law, Tony West, was key fundraiser for Obama in California, having helped raise $65 million for Obama in the state, and he is considered a rising star in the Democratic Party. He now works at the DOJ and has expanded the Civil Rights department to take on some elements of mortgage fraud. The DOJ has an internal directive to make mortgage fraud a top priority, but what mortgage fraud means to the DOJ are mortgage modification scams and penny ante borrowers ripping off fly-by-night lenders. West, while not the direct actor in the DOJ’s settlement talks, is in all likelihood involved in pressure on state AGs to sign on to a settlement. And it’s simply inconceivable he hasn’t dealt with his sister-in-law and political ally on the matter. Harris and West are part of a coherent political network, and much of the strength of that network has to do with reinforcing the traditional bank-friendly policies of the Democratic elite and then using that to create political support.
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The first indication that as California AG Harris was more sympathetic to the Obama side of the ledger on banking is that one of her first decisions as AG was to let off Angelo Mozilo without admitting to wrong-doing or personally paying a fine (the small money that went to restitution came from Bank of America shareholders). I suspect the issue is actually more personal to her than legal, not because she particularly cares about finance or foreclosures, but because her friends and allies are very concerned about ensuring that the banks get a release. In their view, this will cause the housing market to clear, the economy to recover, and then help reelection chances".
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While General Harris' supporters point out that she backed out of an immediate settlement a few weeks ago with the banks that screwed millions of Californians, she refused to join the joint investigation by Eric Schneiderman and Beau Biden on the foreclosure fraud crisis. The question has to be WHY?
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Is she afraid of sharing visibility on the subject? Is she worried she will look inadequate in leading her budget ravaged staff that historically is more pro-institution than pro-consumer? Or is she just on the sidelines, trying to figure out what to do? Or is she more closely aligned to the very banking execs she should be joining in the investigation of [For example, she let the mortgage mauraders at Countrywide and its CEO Angelo Mozilo off the hook in February of 2011 when he paid a mere $6.5 million to get out of a predatory lending lawsuit filed by the state of California].
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What is clear is that Kamala Harris is no progressive lie New York's AJ Eric Schneiderman.
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The Kamala Harris history?
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Harris got her start in big time San Francisco politics she was best known as the ex-girlfriend of former long-time Speaker of the California Assembly Willie Brown, who remains a powerful figure in California politics. Harris dumped Brown shortly after he became mayor but he provided key help to her campaign for District Attorney in 2003. It was a tough race against a two-term incumbent. In that race she agreed to participate in a system that mandated campaign finance limits. In the last days of the race when it was clear she had a shot at winning, she ignored the mandated spending limits she had previously agreed to assuming that the fines would be well worth the expense of spending extra money in the home stretch if she won. And she did win. Her career as San Francisco’s District Attorney was marred by allegations of massive mismanagement of the city’s crime lab which was under her jurisdiction. As a result, allegedly hundreds of criminal cases had to be thrown out of court.
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Maybe General Harris could learn from a very tough AG in hard hit Nevada, Catherine Cortez Masto.
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Window dressing politics have to stop. Harris needs to decide if she wants to be a warrior for victims or an apologist for the banking smucks that are still raking us over the coals.

Prosecutorial Abuse in Closing Argument Case of Interest...

The United States Court of Appeals for the Ninth Circuit has issued an Opinion in the matter of UNITED STATES of America v. Arturo SANCHEZ, Jr., Appellant, 2011 WL 5149141, No. 10–50192 (Nov. 1, 2011).

The Appellant Arturo Sanchez was appealing his convictions for importation and possession of cocaine. He asserted that the last statement made by the prosecution in its closing rebuttal argument rendered the trial unfair. The Court of Appeals held that the prosecutor's inflammatory remarks delivered at the end of his closing rebuttal argument were improper and prejudicial and reversed Sanchez's convictions.

On May 26, 2008, Sanchez entered the United States from Mexico at the Calexico, California port of entry driving a 2002 Passat. A narcotics detector dog alerted to the rear side of the vehicle. A search revealed hidden compartments containing 29 kilograms, or 64 pounds, of cocaine.

An Immigration and Customs Enforcement special agent then interviewed Sanchez. Sanchez told the special agent that he knew that drugs were hidden in his vehicle, but that he was afraid of the people who gave him the drugs to transport, and that they knew where he lived in Mexico. At trial, Sanchez took the stand and testified that, although he knew he was driving a vehicle containing drugs, he had done so under duress because the drug traffickers had threatened his family.

The prosecutor delivered his closing argument, followed by the defense counsel's closing argument. The prosecutor then commenced his rebuttal with remarks about the law of duress. At the end of his rebuttal, the prosecutor stated that the defense counsel was asking the jury to believe Sanchez's duress claim even though Sanchez had said nothing about fearing for his family's safety to the customs officers. The prosecutor then said: " Why don't we send a memo to all drug traffickers, to all persons south of the border and in Imperial County and in California—why not our nation while we're at it. Send a memo to them and say dear drug traffickers, when you hire someone to drive a load, tell them that they were forced to do it. Because even if they don't say it at primary and secondary, they'll get away with it if they just say their family was threatened. Because they don't trust Mexican police, and they don't think that the U.S. authorities can help them. Why don't we do that?"

Sanchez contended that the “send a memo” statement made by the prosecutor during his closing rebuttal was improper argument. However, Sanchez did not raise this objection before the district court and thus the court reviewed for plain error. Under the plain error standard, the court could only reverse Sanchez's conviction if the “send a memo” statement was improper and substantially prejudiced the defendant's trial. Even if both prongs of the test are met, the plain error doctrine authorizes the Courts of Appeals to correct only particularly egregious errors that seriously affect the fairness, integrity or public reputation of judicial proceedings. United States v. Young, 470 U.S. 1, 15 (1985).

The Court stated that prosecutors may not urge jurors to convict a criminal defendant in order to protect community values, preserve civil order, or deter future lawbreaking. The evil lurking in such prosecutorial appeals is that the defendant will be convicted for reasons wholly irrelevant to his own guilt or innocence. Similarly, prosecutors may not point to a particular crisis in society and ask the jury to make a statement with their verdict. Nor can prosecutors comment on the potential social ramifications of the jury's reaching a verdict. Further, it is improper to make statements designed to appeal to the passions, fears and vulnerabilities of the jury.

The prosecutor's “send a memo” statement urged the jury to convict for reasons wholly irrelevant to Sanchez's guilt or innocence. The point of the “send a memo” statement was that if the jury acquitted Sanchez based on his duress defense, the verdict would in effect send a message to other drug couriers to use that defense themselves. By his “send a memo” statement, the prosecutor was encouraging the jury to come to a verdict based not on Sanchez's guilt or innocence, but on the “potential social ramifications” of the verdict, and this was improper argument.

Under the plain error standard, reversal is appropriate only if the prosecutor's improper conduct so affected the jury's ability to consider the totality of the evidence fairly that it tainted the verdict and deprived the defendant of a fair trial. The Court noted that there was no curative instruction given to mitigate the prejudice of the “send a memo” statement. Even so, curative instructions fail to neutralize the harm of improper statements by a prosecutor when they do not mention the specific statements of the prosecutor and are not given immediately after the damage is done.

Here, before closing arguments, the district court gave an instruction that arguments, statements, questions, and objections by lawyers are not evidence. Then, immediately before the prosecutor's “send a memo” statement, the district court reminded the jury to follow the jury instruction on the legal requirements of duress, and not to consider the lawyers' statements as evidence. However, advising a jury that lawyers' statement are not evidence is not equivalent to advising it to consider only the facts of the immediate case, rather than the possible societal consequences of its ruling. Moreover, once the “send a memo” statement was made, the district court did not address that specific statement, and gave no curative instruction. A generalized jury instruction that the statements of counsel were not evidence was not sufficient to dispel the level and type of prejudice generated by the prosecutor in this case. Thus, the district court failed to neutralize the harm caused by the prosecutor's “send a memo” statement. Even in the absence of objections by defense counsel, the trial judge must be alert to deviations from proper argument and take prompt corrective action as appropriate.

Blogger Bob's comment: Let's see what the SCOTUS does with this! It makes sense to shift the burden in such cases to the court when the prosecutor steps over the line in closing argument but with that said, could the inaction be explained by so many of the bench officers being former prosecutors?

NEW FEDERAL SENTENCING COMMISSION REPORT

A copy of the new Federal Sentencing Commission Report on "mandatory minimums" is available at http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202520988995