You wonder why they hate the police...

This interesting piece in the New York Times claims that newly released data Shows an Increase in Street Stops. That alone is interesting, but here's the bit that gets me:

The 145,098 stops from January through March — up from 134,029 during the same quarter a year earlier — led to 8,711 arrests. That means that in 94 out of a 100 cases, the cops were harassing an innocent person. (Calls into question "reasonable suspicion" doesn't it?) And given that blacks are stopped in wildly disproportionate numbers it explains why there is such a sense of over policing in poor communities of color.

Worth Watching...

Report: 400,000 weed arrests...

Finally a report documenting what we've all known about for years: The absurd flood of weed cases, many of which are charged as misdemeanors rather than violations because the cops coaxed someone into giving up the joint rather than discovering it during a search.

What's the real problem with hundreds of thousands of people getting busted for weed? The fact that enforcement is racially disproportionate. As my dear friend Robin Steinberg, the executive director of Bronx Defenders, put it in Newsday...



'The real issue here is that massive numbers of police officers are being deployed in communities of color -- poor communities of color -- and are staying outside schools waiting for kids to walk home, to go to the bodega, to go to their friend's houses, and then searching them,' she said.

'Those same police forces are not being deployed on the Upper East Side of Manhattan waiting outside privileged, overwhelmingly white private schools to search their backpacks go through their children's pants.'"

As I've often said, if we policed the upper east side like we police the Bronx, there'd be a revolution in NYC inside of a month.

I called that one...

Wesley Snipes Gets 3 Years for Not Filing Tax Returns

Another review...

Weird thing about books is they stick around (even after being remaindered). Another review of INDEFENSIBLE from march of this year. Who knew?

My Latest Op-Ed...

"Pursuing the polluters" ran today in the Los Angeles Times

Prosecutor seeks 3 years in prison for Wesley Snipes

I've said it before and I'll say it again: . Wesley Snipes is going in

Just too funny...

I know this is old, but I just came across it (thanks to blonde justice) and I couldn't help but re-post it.

A Must Read.

This piece is one of the finest bits of expository writing I've come across in a long time. It's an phenomenal times Op-Ed by Taylor Branch called The Last Wish of Martin Luther King.



Just one little tidbit to get a taste of his delicious writing... "we have encased Dr. King and his era in pervasive myth, false to our heritage and dangerous to our future."

Indefensible RIP

Remaindered at last...

Sentence First Verdict Afterwards: Plea Coercion In Brooklyn

Michael Brick’s ambitious piece in today’s New York Times about the wide ranging narcotics prosecutions in the housing projects of Brooklyn omitted some important details which suggest that the “historic conspiracy” referred to by the Brooklyn District Attorney’s office was not the series of drug transactions being prosecuted under the false flag of an overused conspiracy law, but rather one between Mr. Hynes’s office, and a compromised judiciary conscripted in the service of unsustainable prosecutions by fawning press coverage and a lack of simple courage.



While Mr. Brick does imply (by quoting defense lawyers) that the use of first degree conspiracy charges had the effect of “exacting jail terms they might not otherwise have won,” he does a shoddy job of explaining just how the use of bail coerced plea bargains, and entirely omits the fact that bail is a matter of judicial discretion, thus failing to pose the question of why judges continued to set and maintain bail as case after case collapsed.

The omissions reflect Mr. Brick’s thesis that the cases “stumbled at the courthouse steps.” That thesis posits that the system actually works with judges fulfilling their proscribed role as checks on prosecutorial power. In fact, judges were complicit in the continuing prosecution of the cases at each step from arraignment onwards.

Mr. Brick correctly noted that those charged with Conspiracy in the First Degree (Penal Law Section 105.17) had bail set at astronomical numbers. Certainly (though he didn’t mention it) this is in part because 105.17 is a class A-1 felony, punishable by life in prison and subject to the same penalties as a murder. Still there is no statute that requires judges to set high bail, or even, bail at all. In fact, releasing defendants charged even with serious crimes is the prerogative of any presiding arraignment judge, and one of the main things those judges are required by law to consider is “the weight of the evidence against (the defendant) in the pending criminal action and any other factor indicating probability or improbability of conviction.” When juries soundly reject conspiracy charges in case after case, and when the district attorney’s office resolutely refuses to even explain the basis for such serious charges citing secrecy, it becomes incumbent upon judges to refuse to set bail and to begin to release defendants charged in the same manner.

What happened in Brooklyn, though is precisely the opposite. For years and years, despite the District Attorney’s office’s utter failure to secure even a single conviction on Conspiracy 1 charges, judges continued to set and maintain high bail knowing full well that it would take a year or more for cases to come to trial, and that when they finally did, almost no defendant in their right minds would refuse a “time-served” or get out of jail today plea offer. In short, judges were the silent partners in an Alice-in-Wonderland like sentence first, verdict afterwards regime. Had they done their jobs, and refused to set bail based on unsustainable charges, prosecutors would quickly have tired of the legal charade they have used for years to railroad potentially innocent people into pleading guilty to unprovable cases founded on questionable and sometimes virtually nonexistent evidence.

Letting the judiciary off the hook for their complicity does a disservice to readers, and perpetuates the myth of a well functioning system of criminal justice. In fact, as even the most cursory look reveals, co-opted judges, all to eager to appear tough on crime and unwilling to exhibit the courage necessary to take an unpopular stand, have long ago become prosecutorial partners in the tragic dismantlement of the constitutional safeguards we all rely on to protect us from an increasingly overreaching government.

I'm a Philandering Blogger...

So in addition to posting my own thoughts about things here (where my personal reflections on writing, being in hollywood, and doing the show get a bit of air), and Huffington Post (Where I occasionally post random legal and other musings), I've been asked to participate in a very smarty-pants legal blog at Slate.



The blog is called "convictions" and the contributors include genuine heavyweights--guys like Balkin, Barron, Kerr and Dellinger. (The complete list is here and a list of my posts so far is here.) Mostly I'm there to dumb down the conversation and get everyone away from their ethereal battles about theories of judging, or the unitary executive. As readers here know, my tastes are far more pedestrian, and my concerns far more reified--hence my last post about how wildly screwed up sentencing for acquitted conduct is.

Anyhow, just thought I'd explain where the absent verbiage has gone.

TNT spins out dynamite TV...

This from today's Los Angeles Times. It was the front page of the calendar section...

RIP Popeyes

Loved that Chicken...

The creator of one of my favorite restaurants died today--of cancer of the salivary gland. That seems fitting for the man who created Popeyes.

Hot off the presses?

Do me a favor: Compare Adam Liptak's article in the NYT Today in which he reports on Samuel R. Gross's upcoming rejoinder to Justice Scalia's opinion in Kanas v. Marsh,


Gross.

with this piece from the Boston Globe published in 2006 (by me). I think Professor Gross does some fine work, but the fact that his rejoinder is coming out now--literally years after Marquis's crap was published, and years after it was cited approvingly by Scalia--just confirms all my unfortunate feelings about the sclerotic nature of much of legal scholarship and almost all legal academic publishing.

The Wire and Jury Nullification...

While the last episode of "The Wire" may not have wrapped up as many of the plotlines as some closure-loving commentators may have liked, the final act of the writers-captured not on screen but on the pages of Time Magazine-may represent the high water mark of a politically engaged Hollywood.

In the magazine this week, David Simon and his staff take dead aim at this country's war on drugs and conclude that "If asked to serve on a jury deliberating a violation of state or federal drug laws, we will vote to acquit, regardless of the evidence presented." Citing the legendary example of John Peter Zenger, they declare jury nullification in drug cases to be an act of righteous civil disobedience.



The problem is that in taking their pledge to nullify, the authors have gently finessed a rather difficult and practical point-in order to acquit or hang the jury, they'll have to lie to get on the jury in the first place. This is no small omission. Many people will take comfort in Zenger's example but far fewer will be willing to intentionally shield their convictions from official scrutiny once a Federal judge or state prosecutor starts asking them directly. It's hard to lie as a juror, and particularly hard to do so in open court, but without the lie there will be no nullification.

In fact, the jury selection in drug cases around the country increasingly resembles the kind of "death qualification" that capital juries go through. So common is the revulsion to our misguided drug war that judges and prosecutors routinely ask jurors if they have a principled objection to it, following up with questions specifically designed to expose anyone who would have a moral or political objection to voting to convict. Avoiding disclosure often takes more than just failing to raise one's hand in response to a general question. More and more, specific jurors that prosecutors suspect for one reason or another may harbor anti-drug way sympathies are directly queried about their views making withholding look very much like outright deception.

The problem with all of this, of course, is that in the end, more and more juries are comprised not of a fair cross-section of the population, but rather by conservative folks who have no compunction about convicting someone of a drug crime regardless of the of the eventual sentence. And generally speaking those same jurors are more likely to view the evidence in ways that are favorable to the government in a drug prosecution, increasing the likelihood of conviction.

In the end, taking the pledge that Mr Simon proposes may be a wonderful thing when it comes to raising awareness of the terrible injustices perpetuated every day in drug cases around the country. But if called down to the courthouse, a more moderate position will most likely be the more effective one.

Of course the true ideologues may be able to look a judge or prosecutor in the face and claim they'll convict when they won't, but this is far harder in practice than it seems in theory. There is something about the majesty of the process that makes lying difficult. The solution then, is a bit of existential trickery: Don't decide yet. Make no pledges you'll feel the need to disclose, insist that you will listen fairly to all the evidence presented, tell them honestly that you care passionately about the law, and that you'll withhold decision until you've heard the entire case. Get yourself on that jury. But when closing arguments are through and the judge has instructed you on the law, do precisely as Mr. Simon urges. "think for a moment on Bubbles or Bodie or Wallace. And remember that the lives being held in the balance aren't fictional."

Why I'm here...

It's been a confusing few weeks here in hollywood. Disorienting, taxing, if often wonderful. Surfing in the morning with pods of dolphins breeching and leaping delightedly over the waves is hard to beat. And then there is the relentless sunshine and the delightful distractions of eating well, meeting people and having fun in a new city. The work is exciting too. Breaking stories and working for the first time with a group of talented writers is a challenge I've warmed to. And of course, working for Steven B is a dream.

But in the quieter moments, stuck in LA traffic, or listening to the comforting white noise of the waves, I do wonder about the legitimacy of this entire enterprise. It's so far from the lives I used to touch, the people I used to know, the succor I used to provide that it's hard to reconcile with my life long goal of living well by giving more than I take (and of course being me, taking abundantly). There is an immediacy that is lacking. The artistic enterprise as end in itself has never been a particularly persuasive philosophical point of view, and I don't think I'm much closer to adopting it then I was when I came out here. All of which begs the question of what is the point of doing what I'm doing?



I haven't answered the question for my self, but two things in the papers today helped a lot. The first was this spectacular piece from the creators of "The Wire." It leverages their work in a radical and inspiring opinion piece published this week in Time.

In it they say "This is what we can do — and what we will do. If asked to serve on a jury deliberating a violation of state or federal drug laws, we will vote to acquit, regardless of the evidence presented. Save for a prosecution in which acts of violence or intended violence are alleged, we will — to borrow Justice Harry Blackmun's manifesto against the death penalty — no longer tinker with the machinery of the drug war. No longer can we collaborate with a government that uses nonviolent drug offenses to fill prisons with its poorest, most damaged and most desperate citizens."

It is a manifesto of Jury Nullification written by people who for five years have brilliantly helped to shape the public understanding of the drug war. And it's the sort of convincing statement it takes a platform like theirs to publicize.

The other piece was the NYTM's cover story this week. It discussed the outsized (and rather absurd) influence of pop culture on real philanthropy, the way in which celebrity, even of the fleeting or secondary sort nonetheless provides opportunities for real world influence, particularly in the philanthropic universe. The artistic enterprise as radical reform.

The sun is setting, Catalina is swathed in an luminescent pink haze. The last surfers are staggering wet, and happy from the lineup. Even taken together, I'm not sure these articles provide me a convincing answer, but on day marked by reflection and sometimes even bafflement, they sure felt like good omens.

I spun the wheel

I was going to blog a bit about the astonishing stupidity of the ADA who picked the jury in the islander case, but instead I'll simply say: Tonight I spun the wheel on the Price is Right!


Yes, that wheel.

"I can learn!" whines Wacko Judge

Remember wacky judge Cheryl Aleman? The one called an "Evil Unfair Witch" by Sean Conway? (Conway--a hero to readers like us-- also described her “ugly, condescending attitude” and exposed how she forced lawyers to choose between unreasonable trial dates or waiving the right to a speedy trial.)


The Evil One...

Well Conway may have been brought up on charges before the Bar Association for his pointed remarks, but ah, blessed justice, Aleman has been FOUND GUILTY AT TRIAL

Yes it's true, and the Judicial Qualifications Commission recommended the state's highest court should punish Alemán for what it said was "arrogant, discourteous and impatient" conduct. Thank heavens we have people like Conway to point out and publicize the shortcomings of arrogant judges like Aleman.

So just how evil and witchy is she? At trial the comission found that Alemán, unfairly threatened to hold defense attorneys in contempt of court and set unreasonable time limits for lawyers to prepare important court documents.

In particular, in Alemán's first death penalty case, she turned down requests from the Broward Public Defender's Office to disqualify herself during jury selection and gave the attorneys, one of whom had campaigned for her election opponent, 15 minutes to write a complicated legal argument. When they missed the deadline, she threatened to hold them in contempt. Charming.

And what's her response? She doesn't even want a reprimand and thinks she should get reimbursed for the costs of her defense. Why? 'Cause she's "teachable"

Teachable my ass. She's presided by her own account over 10,000 cases--that's ten thousand cases too many. There have been more than enough victims of her presence on the bench already.

Judge Aleman and her colleague and defender Eileen O'Connor bring shame on Broward County and on the judiciary. They both should have been removed from the bench long ago.

Raising the Curtain on "Raising the Bar"

So according to this interesting article, TNT Plans Dramatic Increase in Original Programming, Setting the Stage for a Major Primetime Shift And guess who is right in the middle of that schedule... The article provides a cool overview of their thinking and overall plans.

Meanwhile, I'm still getting used to the atomized ways of Los Angeles. It's just not like NY where you can call friends and meet for a drink on the corner, or just swing by someplace where something is happening. Here it takes planning and driving and freeways.

That said, I'm having some fun. Heading to dinner at Fraiche in Culver City tomorrow. It's a place Frank Bruni ranked in his top 10 nationwide. So though I don't often agree with him, I'll be interested to see.

Here we go...

Until a friend of mine forwarded this to me (thanks ANB) I had no idea it all looked so real. Better get back to work...

All about parity...

Parity...

So this is why the only proper way to insure funding for PD's offices is to pass a law (concomitant with the creation of any state-wide system) which requires PD funding to be directly correlated to the budget of prosecutor's offices. That way when the prosecution gets more money the defense gets more money. Otherwise you wind up like Georgia.

YouTube - Hearsay Exception

The Road to Perdition...

Seat 4D. That’s in the first class compartment. The one where you sip cocktails before take off. Where the nuts say “Gourmet Nuts” on them, where a fabulously gay steward notices that you’re reading a script and is just dying to hear about your new project.

I kind of can’t believe I have a new project. My new project is to fly to LA and learn to write a television show.

In the line at the Budget Rent-A-Car a very handsome young kids asks me if “I’m in the industry?” I don’t really know what to tell him and as I stammer, he says “You must be an attorney.” “Yes” I say relieved. “An Attorney.” Such clarity there. An attorney, an Industry attorney. I’m still kicking the question around in my head, telling myself I need to get used to being “In the industry” when the woman in front of me veers off to a beckoning agent, and I am left alone at the front of the queue. One sharp “Next!” and I’m handing over my license and credit card, looking to make short work of the transaction. “I don’t need the insurance, and I’ll return it full.” I say in my practiced bored car-renting voice. “Great” says the chipper woman, swiping my card. “You have reserved an economy…” “Yeah, that’s fine…” I say hoping to avoid a lengthy upsell. “But would you mind if I put you in a convertible?” “A convertible…” Strangely, I actually think about it. I actually ponder for a moment the allure of a sunny LA day in a rag top before killing that particular reverie. “Thank you, that’s very sweet but…” I say demurring. “Oh, it’s the same rate” she says. “And it’s a lot of fun to drive.” I look at her blankly as she slides the keys to an essentially new Nissan two seater across the counter at me. She smiles again. “Welcome to LA!”

Welcome indeed.


I’m already sunburned.
We drove the ragtop up into the mountains, where under the beating sun, we donned masks, grabbed guns and played paintball.

Paintball is like war for fat people. I make a large target.

Down in the valley, we stop for breakfast or lunch or brunch at some crazy cool place advertising BBQ. Turns out they don’t smoke any meat there, but they do have a hell of a breakfast ham. The waitress is very sweet, and she brings me a diet coke fit for a blue whale. I turn my head to nod a thank you to her, and on the wall behind me, I notice a signed picture of a grinning MPG—it’s a publicity still from a show I don’t know. I nudge RGS, “Hey look—we know him.” She nods at the strangeness. Somehow we know the guy whose picture is up on the wall at some random restaurant in some previously unknown valley. We know that guy.

Welcome to LA.

Also, The bed in the guest house is the biggest thing I’ve ever seen.

Welcome indeed.

Gosh, what a shock!

A prosecutor who deleted a bunch of e-mails in violation of a subpoena, and whose other e-mail messages included endearments to his executive secretary, sexual and racist jokes and pornographic videos. It it really a shock that this jack-ass was not just a prosecutor, but a tough-talking militant guy who has incarcerated folks for a living since 1977? Just another disgrace to a generally disgraceful profession.


The Now Disgraced Prosecutor Charles Rosenthal.

Busted...

An excellent Expose of Bush's Hardheartedness

It's a piece called Begging Bush’s Pardon which documents just how awful the administration has been on the compassionate part of conservatism--presidential pardons.


A Pardon Notice from the Roosevelt Administration

How Likely Are Sex Offenders to Repeat Their Crimes?

Like many hysterical folks over the last few years, Fox News (like the Wall Street Journal) has said of child molesters, “Not only are they almost certain to continue sexually abusing children, but some eventually kill their young victims.”

As it turns out, the numbers don’t bear this out. Not even close.

Kick at your peril...

On the day he took office, Jan. 14, State Representative Douglas Bruce, a Republican delivered a swift kick to the knee of a photographer for The Rocky Mountain News who was snapping his picture during a ceremonial prayer. Bad Idea.

Needle Threaded

We're a go!