U.S. Rep. Tony Cárdenas and LA County Children’s Court Presiding Judge Michael Nash, plus representatives of several community and civil rights groups, will hold a press conference at 2 pm on Monday on the steps of Los Angeles City Hall to urge the board of the Los Angeles Unified School District to direct several million in funds toward “research-proven programs that help keep students in school,” as originally intended, rather than reallocating those same funds to provide more $$ for school police.
(NOTE: We first reported on the questionable budget priority issue here.)
At issue is a pot of money designated by California’s 2013-enacted Local Control Funding Formula (LCFF), that advocates say is supposed to be used to “improve education for students from low-income areas, foster youth, and English language learners.” The Dignity in Schools-Los Angeles Campaign of students, parents and civil rights groups, which Cárdenas and Nash are supporting, has proposed that the money go specifically to hire restorative justice counselors and other student supports to increase student engagement, attendance and graduation, and to prevent suspensions that tend to lead to greater dropout stats.
Instead, LAUSD’s current LCFF proposal includes $13 million to be added to the school police budget that Cárdenas and Nash say comes directly from “supplemental and concentration funds” that the California Legislature intended to address inequities in student outcomes.
“Keeping our kids out of the juvenile justice system starts with making sure they’re in school and learning,” said Cárdenas about the LAUSD budget priorities. Cárdenas passed the landmark Schiff-Cárdenas Act in the California Legislature to evenly fund both police and restorative justice efforts in California schools, and has introduced similar legislation in Congress.
“We know our kids get off track sometimes,” he said. “This is the time of their lives where they are learning and making the decisions that will guide their lives. Counselors and mental health services are the only effective way we have found to help them avoid bad decisions and recover from those they do make. This is about our next generation. We must protect them, give them the wisdom we have learned and try our best to turn them into productive, valued members of our community.”
Judge Nash is, if anything, even more adamant on the topic. “The communities intended to benefit from LCFF are in dire need of every supportive resource-based approach available,” he said in a letter to LAUSD Superintendent John Deasy. “I do not see a reasonable nexus between law enforcement and specifically improving the educational experience and outcomes for our most vulnerable student populations.”
We at WitnessLA agree.
PS: It should be noted that studies by the independent Rand Corporation have shown that the Schiff-Cárdenas Act of 2000 has both reduced juvenile incarceration and lowered spending burdens for California taxpayers.
We’ll keep you posted on the outcome of this issue.
The National Registry of Exonerations, put together by the Northwestern University Law School and the University of Michigan Law School, showed 38 percent of youths who were convicted and later cleared had given false confessions, compared with 11 percent of adults.
Experts note juveniles’ brains aren’t fully developed and that teens tend to be impulsive and less mature than adults. Juveniles often don’t weigh long-term consequences of their actions and can be more easily intimidated than adults, and teens have typically been taught to respect authority figures like police officers.
Samuel R. Gross, a professor at the University of Michigan’s Law School and editor of the National Registry of Exonerations, pointed out there’s a high proportion of false confessions among juveniles and suspects with mental disabilities, for some of the same reasons.
“These are people who are easier to mislead [than adults], easier to manipulate, more trusting, more likely to be afraid, more likely to be confused, more likely to not understand what’s going on, and we see that repeatedly in the descriptions people give after the fact of why they falsely confess,” Gross told JJIE.
LAPD UNION LIKES MOVE BY NEW COMMISSION PREZ TO GET BODY CAMERAS BUT URGES WISE USE OF THEM
Monday, the LAPPL—the LAPD’s union—put out a statementregarding the fast track move by new police commission head, Steve Soberoff, to get body cameras for the department’s officers. In essence the union officials are very much in favor of the cameras, but urge wise protocols. (Indeed, like any tool, the cameras may be used well or poorly.)
Here’s a clip from their statement:
The Digital In-Car Camera System has proven to be another tool to improve officer safety and accountability, enhance training and improve prosecution of criminal cases. The review of videos by arresting officers has proven valuable in the documentation of criminal activity and subsequent testimony. However, concerns have been raised as to how the Department uses the videos for administrative purposes, and we are addressing those issues as they arise, so as not to allow “gotcha” mentality or misuse to derail the intended purpose. We believe that our officers have not only a duty to be accurate, but a right to be accurate. To that end, the review of video and/or audio evidence before writing reports, testifying, or submitting to interviews in not only important, but vital to that goal.
While video can be helpful, we should all remember that video images and/or recordings are two-dimensional and therefore are not by themselves complete investigations. The work rules for the deployment and use of body cams must assure our members that they not be used to unfairly or unreasonably scrutinize an officer’s work performance.
CELEBRATING BANNED BOOKS WEEK—BY READING AND CHEERING BANNED BOOKS
Since the not guilty verdict in the trial of George Zimmerman was announced just a few minutes after 7 pm, Pacific Time on Saturday night, there is no shortage of opinions on what the verdict meant and did not mean.
Of all that we have seen and read since Saturday night’s announcement by the all-female jury, among the essays and analyses that we feel adds the most to the collective dialogue are the following:
Amid their frustratingly uneven presentation, Assistant State Attorney Bernie de la Rionda and the rest of the prosecution have pegged their second-degree murder charges largely on the idea that Martin was losing the fight on February 26th of last year, that he shouted for help, and that Zimmerman, a vigilante would-be cop, shot and killed him anyway. In plotting their route to conviction, they necessarily bypass another set of questions. What if he wasn’t losing the fight? What if Zimmerman is the one who called for help? What if Martin did swing first? And, most crucially, is an unarmed black teen-ager ever entitled to stand his ground?
The answers to these questions have bearing that is more social than legal, but they’re inescapable in understanding how we got here in the first place and what this trial ultimately means.
Also good is this column by our usual go-to-guy from The Atlantic, Andrew Cohen.Here’s a clip from his take on the trial and the verdict, and the oceans of fears, heartbreak and knowledge of our still-tragically race-fractured nation that they triggered.
Of course the deadly meeting last year between Trayvon Martin and George Zimmerman had at its core a racial element. Of course its tragic result reminds us that the nation, in ways too many of our leaders refuse to acknowledge, is still riven by race. The story of Martin and Zimmerman is the story of crime and punishment in America, and of racial disparities in capital sentencing, and in marijuana prosecutions, and in countless other things. But it wasn’t Judge Debra Nelson’s job to conduct a seminar on race relations in 2013. It wasn’t her job to help America bridge its racial divide. It was her job to give Zimmerman a fair trial. And she did.
Without a confession, without video proof, without a definitive eyewitness, without compelling scientific evidence, prosecutors needed to sell jurors cold on the idea of Zimmerman as the hunter and Martin as the hunted. But when the fated pair came together that night, in those fleeting moments before the fatal shot, the distinctions between predator and prey became jumbled. And prosecutors were never able to make it clear enough again to meet their burden of proof. That’s the story of this trial. That explains this result. That’s why some will believe to their own dying day that George Zimmerman has just gotten away with murder.
And finally there is Monday’s essay by the Atlantic’s Ta-Nehisi Coates. Below is a clip from the opening to get you started, but it demands a full reading:
In trying to assess the the killing of Trayvon Martin by George Zimmerman, two seemingly conflicted truths emerge for me. The first is that is that based on the case presented by the state, and based on Florida law, George Zimmerman should not have been convicted of second degree murder or manslaughter. The second is the killing of Trayvon Martin is a profound injustice. In examining the first conclusion, I think it’s important to take a very hard look at the qualifications allowed for aggressors by Florida’s self-defense statute:
Sheriff Lee Baca, once again, ” embraces” a new round of department reforms pressed on him by an outside watchdog agency—in this case, the U.S. Justice Department’s Civil Rights Division, which has painstakingly documented a pile of problems at the LASD stations in the Antelope Valley, that the sheriff is now cooperating to fix. But where was Baca during the years when all the reported racial profiling, the abusive practices, the civil rights and Constitutional violations that the DOJ has been investigating for two years were going on? Where was he when the string of civil lawsuits were being filed and settled, the resident complaints were piling up, and disregarded…?
Do those questions matter? Or is all simply forgiven?
FORK OVER 12.5 MILLION, SAY THE FEDS
On Monday afternoon, U.S. Department of Justice officials demanded that the Los Angeles Sheriff’s Department, LA County’s Housing Authority, plus the cities of Lancaster and Palmdale, pay $12.5 million to residents of the Antelope Valley who, according to the DOJ, had been subject to repeated and ongoing harassment, intimidation and civil rights violations by members of the LASD, the Housing Authority and a string of local officials.
Monday’s demand from the DOJ was a follow-up to the 46-pages of “findings” delivered to Sheriff Lee Baca on Friday, as part of an agreement for widespread reform in how the department polices the Antelope Valley.
“a pattern or practice of discriminatory and otherwise unlawful searches and seizures, including the use of unreasonable force, in violation ofthe Fourth Amendment, the Fourteenth Amendment, and Title VI. We found also that deputies assigned to these stations have engaged in a pattern or practice of discrimination against African Americans in violation of the Fair Housing Act.”
PATTERN AND PRACTICE IN VIOLATION OF THE CONSTITUTION AND FEDERAL LAW
Specifically, the DOJ accused LASD’s Lancaster and Palmdale station deputies of such violations as:
**Stopping and/or searching African Americans, and to a lesser extent Latinos, far more often than whites, “even when controlling for factors other than race, such as crime rates.”
**The widespread use of unlawful backseat detentions violating the Fourth Amendment and LASD policy.
NOTE: A “backseat detention” is when officers put someone in the backseat of a patrol car for a period of time. The DOJ report describes instances when someone pulled over for the smallest of vehicle infractions—like a broken license plate light.—would be put in the back of a patrol car and then questioned.
In another instance, the victim in a domestic violence situation was handcuffed and given backseat detention “for no articulated reason.”
** A pattern of unreasonable force, including a pattern of the use of force against handcuffed individuals;
**A pattern of intimidation and harassment of African-American housing choice voucher holders by LASD deputies, often in conjunction with HACoLA investigators.
The report then described how:
“….more often than not, multiple deputy sheriffs, sometimes as many as nine, would accompany HACoLA investigators on their administrative housing checks. Deputies would routinely approach the voucher holder’s home with guns drawn, occasionally in full SWAT armor, and conduct searches and questioning once inside.
And so on.
Sheriff’s spokesman Steve Whitmore said the department disagrees with the findings completely, but is cooperating with the DOJ. “We stand resolute that we have not discriminated against members of the public. We haven’t seen any racial profiling.”
SO WHERE WAS THE LASD LEADERSHIP ON ALL THIS??
Curiously absent from the discussions of the DOJ’s findings is the observation that the responsibility for this alleged entrenched pattern of corrosive behavior on the part of department members in the Antelope Valley ultimately must come back to supervision and leadership. The DOJ investigated for two years, but there were plenty of earlier red flags—the piles of resident complaints that were routinely ignored, a bunch of high ticket civil lawsuits that alleged discomforting abuses, the reports of Special Counsel Merrick Bobb, who warned that matters were not well in Antelope Valley.
And then there were the tattoos:
Some Antelope Valley deputies wear tattoos or share paraphernalia with an intimidating skull and snake symbol as a mark of their affiliation with the Antelope Valley stations. Though there are varying interpretations of what these tattoos may symbolize, they provide an undeniable visual representation of a gulf between deputies and the community, and are an unfortunate reminder of LASD’s history of symbols associated with problematic deputy behavior.
As noted above, the DOJ and the LASD have reached preliminary agreements to make signicant changes to policing in the Antelope Valley, which include recruiting more African American and Latino officers to the area, participating in community outreach in order to engage residents in a “collaborative relationship,” revising training and use of force polices, and more.
Whitmore told the AP’s Greg Risling that the department now has an exhaustive process to determine whether deputies need to come out during housing inspections. Deputies also carry complaint forms when they are on patrol. The forms are also available at the front desk of the two stations.
In other words, as it was with the jails. Sheriff Lee Baca is now responding to external pressures to correct what needs correcting—all of which is, of course, good. But where was he (and other department leaders) earlier? Why were years of warnings ignored? Why does it take radical action on the part of the DOJ or the FBI or the press or a Citizens Committee on Jail Violence to force the changes that should have been put in place long ago?
As many of you may have heard by now, 19 firefighters were killed Sunday night battling an out-of-control wildfire, located about 80 miles northwest of Phoenix.
The 19 were members of a team of highly-trained wildland firefighters known as the Prescott Granite Mountain Hot Shots (pictured above), one of the elite Interagency Hotshot Crews (IHC) that are deployed as needed to major wildland fires throughout the nation.
The deaths of the Prescott hot shots is the second worst such incident in U.S. history, and the worst firefighting loss of life since 1933.
When firefighters or police officers are killed, it tears a particular kind of hole in the community—both locally and in the larger community. Thus, while WLA doesn’t genrally report on wildfires, in this case….attention must be paid.
Feeling incredible shock and grief over the deaths of the 19 firefighters killed in Yarnell,Az wildfires. Please pray 4 their families.CB
AND IN OTHER NEWS…
OFFICER LAWSUITS AGAINST THE DEPARTMENT DEMONSTRATE NEED FOR CHANGES AND REFORMS SAYS LAPD’S INSPECTOR GENERAL
The LAPD’s Inspector General, Alex Bustamante, issued a sharply-worded report that critiqued the department’s failure to institute reforms to reduce the number of officers suing department—and collecting big $$ payouts—as a result of various claims of ill-treatment at the hands of the LAPD.
Alex Bustamante, the inspector general, calculated that the city has paid $31 million over the last five years to resolve employment-related cases in which members of the LAPD contended they were victims of discrimination, harassment, retaliation or other misconduct. That was almost one-third of the $110 million paid in all LAPD lawsuits, including those involving allegations of excessive force and traffic accidents, the report found.
In a set of recommendations, Bustamante called on the department to implement a mediation program devised by the LAPD, city attorneys and officials from the union representing rank-and-file police officers.
The Los Angeles Police Comission will discuss Bustamante’s report on Tuesday.
And while we’re on the topic, it would be good to know what percentage of the Los Angeles Sheriff’s Department payouts are to settle with department members.
It should also be noted that, in his report, Bustamante said that, in the last 5 years, the LAPD has paid out $110 million in lawsuits, 31 million of which is cops suing the department.
On Thursday, the court (with Chief Justice John Roberts writing the majority opinion), ruled 5-4 that the proponents who came forward to defend Prop 8 after it was struck down by a lower court did not have the proper standing to bring the case to the High Court. So, in effect, the lower court ruling was allowed to stand.
The ruling has brought hundreds of same-sex couples to courthouses and city halls across California. As we wrote Saturday, it’s “wedding weekend in San Francisco” and other places.
This weekend, Kennedy (to whom appeals of decisions from California are directed) was asked to put a stop to the weddings. Prop 8′s supporters, as our colleagues at KQED reported, argued that because they have 25 days in which to ask the Supreme Court to reconsider its ruling, the marriages should be on hold for at least that long.
Kennedy disagreed. So, the marriages can continue.
TRAVIS COUNTY, TX, EXPERIMENT COULD SET THE STAGE FOR JUVENILE JUSTICE REFORM ACROSS THE STATE
Travis County, Texas, (which includes Austin within its borders) has decided that it can do a better job in helping its law breaking kids turn their lives around, by making use of intensive therapy and other rehabilitative programs.
Brandi Grisson writing for the Texas Tribune has the story. Here’s a clip:
“…We will no longer commit kids to the state,” said Jeanne Meurer, a Travis County senior district judge. “We will take care of all of our kids.”
This year, legislators approved a law to allow the county to commit juvenile offenders to local detention facilities instead of sending them to large institutions operated by the Texas Juvenile Justice Department. If the Travis County model is successful, it could set the stage for the next steps in reforming the juvenile justice system — sharply reducing the size of the agency and the number of detention centers.
“Travis County’s experience doing this will tell us what’s possible,” said Michele Deitch, a professor at the University of Texas at Austin and an expert on jail conditions.
Since Texas deals with many of the same complex youth populations in its facilities as does California, what Travis does should be worth watching.
Immediately following the release of the Supreme Court ruling on Prop. 8, court watchers, advocates, and constitutional scholars were trying to sort out what, in a practical sense, the ruling meant fo the legality of gay marriage in California.
Wednesday mid morning, California Attorney General Kamala Harris issued a statement that pretty much answers the question.
Here’s a clip from her official statement.
Attorney General Kamala D. Harris today declared that the United States Supreme Court’s historic opinion in Hollingsworth v. Perry means that every county in the State of California must now recognize the right of same sex couples to legally marry and asked the Ninth Circuit Court of Appeals to lift its stay and allow same-sex marriages to take place.
“The Supreme Court’s historic ruling in Hollingsworth v. Perry means that same-sex couples have the fundamental right to be legally married in all of California’s 58 counties,” said Attorney General Harris. “The Court agreed with our argument that opponents of same-sex marriage lacked the legal standing required to bring the issue to the court. Same-sex marriages can legally resume in California as soon as the Ninth Circuit Court of Appeals lifts its stay on the District Court Ruling. I ask that the Ninth Circuit lift this stay immediately, because gay and lesbian couples in California have waited long enough for their full civil rights.”
In an earlier letter to Governor Jerry Brown, Harris advised that, should the challenge to Prop. 8 be found to have no standing (as was the case), the State Department of Public Health should instruct county clerks and recorders in all 58 counties to resume issuing marriage licenses to and recording the marriages of same-sex couples.
Bottom line, same-sex marriages will resume as soon as the Ninth Circuit Court of Appeals lifts its stay on the District Court ruling.
It appears that no other action is required.
Let the wedding bells ring!
Photo by LABaseballFan courtesy of Wikimedia Commons
HOW WILL THE SUPREMES RULE ON GAY MARRIAGE? WILL THEY BE BRILLIANTLY GAME-CHANGING OR DINOSAURISHLY GHASTLY? OR SOMETHING IN BETWEEN? HERE’S ONE RUMOR-LADEN SPECULATION
While we wait for the Supreme Court’s rulings on the two gay rights cases, California’s Prop 8 and DOMA (Defense of Marriage Act) the speculation and the worry about the various possible decisions, and combinations of decisions, is starting to rev up again.
One story we recommend is by UCLA law school prof and Constitutional expert, Adam Winkler, writing for the New Republic. Yes, the essay is a bit in the “What if truly horrible things happened?!!” vein, but it’s smart and thoughtful, and worth your time. Here’s a clip:
Ever since the Supreme Court heard two major gay rights cases in March, the conventional wisdom among court-watchers is that we’re likely to see a split decision. The Court, according to most experts, will probably strike down the Defense of Marriage Act and issue a narrow ruling, perhaps on procedural grounds, on the California Proposition 8 same-sex marriage case. That outcome would be an incremental but important step forward in the progress of gay civil rights. Although gay marriage would not yet be recognized as a fundamental right, the Court would establish that the federal government can’t deny gay couples that are already lawfully married access to federal benefits, like social security or spousal tax exemptions.
Yet what if the Court doesn’t strike down DOMA? This past weekend, I visited Washington, D.C., and spoke to well-placed lawyers about the prospects for DOMA. Surprisingly, I heard speculation that the Court would defy the conventional wisdom on DOMA. No one said the Court was likely to endorse the law. But there was serious concern that the Court would do in the DOMA case exactly what the conventional wisdom says the justices will do in the Proposition 8 case: avoid a definitive ruling by deciding the case on procedural grounds. If the speculation is true, the DOMA case could end up a major setback for the gay rights movement. And it could put the Obama administration on a crash course toward a constitutional crisis.
Now rumors about pending Supreme Court decisions should be taken with a whole shaker full of salt. The Court, known as the tightest ship in Washington, rarely leaks. Yet last term’s rumors that Chief Justice John Roberts had changed his vote in the Obamacare case at the last minute were borne out. Especially given the enormous stakes in the DOMA case, perhaps it’s time to consider what might happen if the justices were to kick the case without a final ruling on the merits of DOMA’s constitutionality.
The scuttlebutt focuses on the conservative justices…
PS: Adam Winkler was one of my esteemed panelists at this year’s LA Times Festival of Books so I can personally attest to his general smart-osity and stellar analytical abilities.
OAKLAND EMBRACES PROMISING SCHOOL REFORM MODEL TO ADDRESS INTERGENERATIONAL PROBLEMS STUDENTS FACE IN THE VIOLENT AND COMPLICATED CITY
The Oakland Unified School District has committed to an ambitious plan to implement full-service “community schools,” equipped with staff trained to support students’ social, emotional and health needs, as well as their academic growth.
The Center for Investigative Reporting has a large story on what Oakland is attempting. Here’s a clip that will give you an idea of what they’re up to. But for those interested in school reform and strategies to shatter the so-called school to prison pipeline, you’ll want to read the whole thing.
…..Enrollment in traditional Oakland public schools has plummeted by more than 16,000 students since 2000, according to district officials, as foreclosures have forced families out of the city and charter schools have siphoned off students. During the same period, the district has cycled through six superintendents and narrowly avoided bankruptcy only through a state takeover that ended in 2009.
Now, under growing public pressure to improve student safety and achievement, the district is attempting to reinvent itself by turning its 87 schools – including Fremont – into what are known as “full-service community schools,” equipped with staff trained to support students’ social, emotional and health needs, as well as their academic growth.
The concept is one that has been around for decades but is now gaining traction in districts across the U.S. as other reform efforts run up against problems related to poverty. The embracing of community schools is a stark shift from the “no-excuses” movement, which held that schools should be able to push all students to success no matter what their background. That idea dominated education reform for much of the past decade.
Community schools are just the opposite. At its core, the concept represents an explicit acknowledgement that problems with a child’s home life must be addressed to help the student succeed academically.
“There’s actually a lot of agreement that we need to work on both improving schools and addressing poverty,” said Michael Petrilli, executive vice president of the Thomas B. Fordham Institute, a conservative education think tank based in Ohio and Washington, D.C. “Particularly, as reformers get into the work of trying to run schools and make the system work better, they see in black and white just how important addressing the larger social problems is.”
Marty Blank, director of the nonprofit Coalition for Community Schools, which connects organizations and school districts doing community school work, estimates that at least 50 school districts around the country are launching similar initiatives. Chicago is home to more than 175 community schools. Portland, Ore., has 67 and Tulsa, Okla., 31. New York City, with the nation’s largest school system, has 21 community schools, and that number might grow soon, depending on this year’s mayoral election; the United Federation of Teachers is pushing for the city’s next mayor to adopt the strategy….
And where is LAUSD on this kind of sweeping reform?
Well, I guess it is weirdly encouraging that LA Schools have committed $30 millionto buy nearly every kid in the district an iPad. But such wonderful learning tools require the practical and philosophical infrastructure to go with them. We believe Superintendent John Deasy is attempting to move in that direction. However the district as a whole has yet to even vaguely contemplate the kind of game changing commitment that we’re seeing in Oakland.
MICHAEL HASTINGS: MAKING NOISE AMID THE SILENCE
Fearless journalist Michael Hastings died in terrible fireball of a car wreck at approximately 4:25 a.m. on Tuesday, in the 600 block of North Highland Avenue. Hastings, 33, was the guy who did that 2010 interview/profile with General Stanley McChrystal for Rolling Stone, “The Runaway General,” which resulted in the general resigning his post as the supreme commander of the U.S.-led war effort in Afghanistan, after McChrystal and his staff openly talked smack about the foreign policy team in the Obama White House.
Yet, Hastings was not a sensationalist, as he was sometimes portrayed by detractors following that news blasting profile, according to colleagues—and those of us who read his work carefully—he was someone who wanted to write stories that mattered, stories without spin, stories that were fearless, stories that illuminated. Stories that were true.
Moreover, Hastings had earned the right to pursue those stories. He wasn’t the guy who showed up on scene with the spiffy, newly bought flak jacket. He’d paid dues. As Rolling Stone reports in its obituary:
For Hastings, “…there was no romance to America’s misbegotten wars in Afghanistan and Iraq. He had felt the horror of war first-hand: While covering the Iraq war for Newsweek in early 2007, his then-fianceé, an aide worker, was killed in a Baghdad car bombing…..
As Jon Lee Anderson wrote of Hastings on Wednesday in the New Yorker, we will miss “….his readiness to make noise amid agreed silences.”
He was, friends and colleagues all agree, an enormously likable and gentle man. He was also a startlingly fine actor who left behind him an array of wonderfully-crafted characters. One of those characters was…indelible.
In a 5/4 decision on Monday, the Supreme Court ruled that law enforcement officers can take one’s DNA if one is arrested for a serious offense, a decision that elicited howls of protest from certain quarters. However, the primary howl of dissent came, not from the liberal justices or advocacy organizations, but from Justice Antonin Scalia.
(For the record, all three liberal-leaning female justices voted in the minority block. Breyer voted with the majority.)
And, be advised, Scalia didn’t just write a dissent, he insisted on reading it aloud—with much drama, lots of well crafted and colorful verbiage, and general passion.
Writing for the minority, Scalia was joined by three liberal justices. But his 11-minute oral statement – a departure from the usual practice in which only the majority opinion is read aloud – was classic Scalia. It relied on his “originalist” interpretation of the U.S. Constitution and employed forceful rhetoric as clever as it was heated. He declared that the majority’s rationale “taxes the credulity of the credulous.” An adroit writer, he sprinkled in words from decidedly non-legal contexts, such as “hash” and “genuflecting” and mixed in references to American revolutionary Patrick Henry and the biblical Leviathan.
The latter came at a moment of high drama in the white marble courtroom when Scalia concluded: “It may be wise, as the court obviously believes, to make the Leviathan all-seeing, so that he may protect us all the better. But the proud men who wrote the charter of our liberties would not have been so eager to open their mouths for royal inspection. I dissent.”
Only a few times each term does a justice read a dissenting opinion aloud. It typically happens in a close, hard-fought case, when a dissenter is especially angry and wants to call attention to a decision he or she believes especially unwise…..
The police may take DNA samples from people arrested in connection with serious crimes, the Supreme Court ruled on Monday in a 5-to-4 decision.
The federal government and 28 states authorize the practice, and law enforcement officials say it is a valuable tool for investigating unsolved crimes. But the court said the testing was justified by a different reason: to identify the suspect in custody.
“When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody,” Justice Anthony M. Kennedy wrote for the majority, “taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.”
Justice Antonin Scalia summarized his dissent from the bench, a rare move signaling deep disagreement. He accused the majority of an unsuccessful sleight of hand, one that “taxes the credulity of the credulous.” The point of DNA testing as it is actually practiced, he said, is to solve cold cases, not to identify the suspect in custody.
But the Fourth Amendment forbids searches without reasonable suspicion to gather evidence about an unrelated crime, he said, a point the majority did not dispute….
Scalia’s dead right, of course. And, although WLA is agnostic on the issue in general, we too are bugged by the legal underpinnings of this ruling. Given how long it typically takes to get DNA results back, the majority’s rationale is a major stretch for the average felony arrest. And we don’t like it that the majority used this squishy and not-terribly supportable line of reasoning as a way to get around any Fourth Amendment problems.
The good news is that the ruling for swabbing will help solve more crimes. And, with luck, fewer innocent people will be convicted. But, it sets a weird precedent.
So, yes, go Antonin! Thank you for not going into your minority status quietly.
NEW REPORT SHOWS CRIME AND VIOLENCE IN SCHOOLS ARE DOWN SINCE 1992, BUT BULLYING HAS REMAINED DISHEARTENINGLY STEADY
Last Friday, the Bureau of Justice Statistics released a new report that looks at violence and safety in schools and the numbers tell a complicated story.
For example, victimization of students at school by theft and violent crime dropped precipitously from 1993 to 2011 with a high in ’93 of around 165 students per thousand, to only around 35 students per 1000 in 2010.
When it comes to homicides in schools, the numbers were high in 1992, and then again in the 2006-07 school year, but steadily declined after that.
The number of kids who’d brought a weapon to school in the last 30 days has gone down quite a bit since the early 1990s. But still, 5 percent of students have brought a weapon to campus at least one day in the last 30 days (down from more than 12 percent in 1993.)
Yet, while violence and crime in schools dropped, bullying did not.
In 2011, 28 percent of kids between the ages of 12 to 18 reported being bullied at school, with the numbers slightly higher for girls at 31.4 percent, than for boys, at 24.5 percent.
There has been, as one might guess, much more in the way of safety measures put into place since the early 1990s (security cameras, restricted access to campus during school hours, etc.). And yet, while the percentage of schools with security guards, or school police, has remained about the same since 2005 (after rising a bit in 2007) the number of armed personnel on campus has dropped.
Nebraska’s juvenile justice system will have a new focus on rehabilitation thanks to a bill signed into law Wednesday by Gov. Dave Heineman.
Legislative Bill 561 (LB561), introduced by state Sen. Brad Ashford (I-Omaha), will allocate $14.5 million towards several new services, as well as a grant program to aid counties in treating juvenile offenders.
The bill decreases the state’s dependency on juvenile detention programming, placing a greater emphasis on youth rehabilitation. The new measure also transfers juvenile offender supervision over to Nebraska’s Office of Probation Administration, which is subordinate to the state’s Supreme Court. Prior to the legislation taking effect, Nebraska’s juvenile populations were instead overseen by the state’s Department of Health and Human Services.
MIRANDA AND DZHOKHAR TSARNAEV: WHEN WE’RE SURE THAT SOMEONE HAS DONE SOMETHING TERRIBLE, WHEN MUST WE READ HIM HIS RIGHTS?
Of course we want the feds to have gotten everything possible our of Dzhokar Tsarnaev before he started clamming up. But is that merely an emotional position or a legally justifiable one? (Do remember, that the rights we give away in exceptionally moments often tend to stay given away.)
Dzhokhar Tsarnaev talked for 16 hours before he was read his rights. Emily Bazelon of Slate thinks that’s too long. Here’s a clip from her discussion-provoking essay on the matter.
According to the AP, Dzhokhar Tsarnaev answered questions for 16 hours before he was read the Miranda warning that he could remain silent and could ask for a lawyer. Once Tsarnaev was told that, he stopped talking. (So much for the idea that everyone has heard Miranda warnings so many times on TV that they have become an empty ritual.) The AP also reports that the investigators questioning him were “surprised when a magistrate judge and a representative from the U.S. Attorney’s office entered the hospital room.” The investigators “had planned to keep questioning him.”
Wow. That’s bad no matter your point of view. If you think Tsarnaev doesn’t deserve the normal protections American law affords criminal suspects, then you’d want the FBI to keep at him as long as they chose. Or if, like me, you’re worried about how far the Obama administration’s Justice Department has stretched the limited “public safety” exception the Supreme Court has allowed for questioning suspects about ongoing danger without Miranda warnings, 16 hours sounds expansive.
It’s true that Miranda offers protection only after the fact. Technically, the rule is violated not when investigators fail to give the warnings, but when they try to introduce in court a confession or other facts a suspect revealed before he was read his rights. It’s also true that given the mountain of evidence against Tsarneav, he could be convicted without his own statements. But that may not be true with the next terrorist suspect—or the next hated man for whom the government decides to stretch the public safety exception. The Justice Department is setting a precedent here. And how does that precedent directly involve public safety, when all of law enforcement reassured the public that safety had been restored once Tsarnaev was captured Friday night, and that the authorities strongly believed he and his brother, Tamerlan, had acted alone?
Read on. There’s a lot more.
CAN I SAY I’M SORRY? IS THERE A PLACE FOR APOLOGIES IN CRIMINAL COURT?
This research paper on the value of—and legal difficulty with—apologies by defendants in criminal court, by Professor Michael Jones of the Phoenix School of Law, covers an interesting question.
Here’s the abstract:
This paper is written for the purpose of addressing the power and possibility of early apologies in the criminal justice system. As constructed, our criminal justice system rewards defendants that learn early in their case to remain silent, and punishes those that talk. Defendants that may want to offer an apology or allocution for the harm they’ve caused are often required to wait until a sentencing hearing, which may come months, or even years after the event in question. This paper proposes that the Arizona Rules of Criminal Procedure be modified to provide an exception for apology to criminal defendants. Apologies can play an invaluable role in the healing process for victims, defendants, family members and others tied together by the unfortunate events of a criminal prosecution. This paper seeks to further the comprehensive law movement approach that promotes a healing process for those involved in the criminal justice system.
(A thank you, once again, to the excellent Doug Berman of Sentencing, Law & Policy, for flagging this paper.)
THE KOCH-BROS, THE LA TIMES, AND A NOT-SO-MODEST PROPOSALS
Now that the shock of the Koch duo’s possible purchase of the LA Times and other Tribune Corp papers is nearly a week old, a whole second wave of reactions has been surfacing, some of them….odd.
Take, for example, this somewhat untethered column by the Washington Post’s Steve Perlstein in which Perlstein breathlessly suggests that he knows a sure fire way that the LAT employees can save the paper from the marauding Koch-sters.
Everyone should quit. (Right, Steve. That’d show ‘em.)
“If the Times journalists,” he writes…
….”….decide collectively to walk out the door one day, the readers and advertisers are almost certain to follow.
“A new owner, of course, could hire new journalists, and certainly there are plenty of them out there looking for a job. But it would take time to attract them, get them working as a team and weed out the inevitable clunkers…
“And in the meantime, competing news organizations would be quick to pick up Tribune’s stars and use them to lure away readers and advertisers at a time when circulation and revenue are already under pressure. Hell, in the age of the Internet, the rebellious journalists could easily start their own news organizations and grab a good chunk of their old readership within weeks.
This is a rare moment for Tribune’s beleaguered journalists. For the first time in a long time, they actually have leverage. They’d be crazy not to use it….”
Washington Post columnist Herold Meyerson spent years as a political journalist in LA, so it’s understandable that he would feel moved to weigh in on the possibility of the Koch brothers as buyers for the LA Times, and about the necessity of remembering that a newspaper isn’t just a business; it’s also a civic trust.
Here’s a couple of clips:
On May 21, Los Angeles voters will go to the polls to select a new mayor. Who will govern Los Angeles, however, is only the second-most important local question in the city today. The most important, by far, is who will buy the Los Angeles Times.
The Times is one of the eight daily newspapers now owned by the creditors who took control of the Tribune Co. after real estate wheeler-dealer Sam Zell drove it into bankruptcy. Others include the Chicago Tribune, the Baltimore Sun, the Orlando Sentinel and the Hartford Courant. The Tribune board members whom the creditors selected want to unload the papers in favor of more money-making ventures.
Fans of newspapers are a jumpy lot these days. And in the past couple of weeks, their apprehension has gone through the roof with word that right-wing billionaires Charles and David Koch are looking to buy all eight papers.
Being human beings, all newspaper owners have politics of their own. Since the 19th century, however, most haven’t gone into business primarily to advance a political perspective. Profit, professional and civic pride, and recognition have largely motivated them. It’s hard to see how any of these factored into the Koch brothers’ calculations.
In their very brief no-comment on the sale rumors, the Kochs took care to note, “We respect the independence of the journalistic institutions” owned by Tribune, but the staffs at those papers fear that, once Kochified, the papers would quickly turn into print versions of Fox News. A recent informal poll that one L.A. Times writer conducted of his colleagues showed that almost all planned to exit if the Kochs took control (and that included sports writers and arts writers). Those who stayed would have to grapple with how to cover politics and elections in which their paper’s owners played a leading role. It’s also unclear who in Los Angeles, one of the nation’s most liberal cities, would actually want to read such a paper, but then the Kochs don’t appear to view this as a money-making venture.
Though slimmed down from its glory days, the L.A. Times remains a great newspaper, as its recent stories on increasing employer surveillance of blue-collar workers illustrate. But the paper that, under the reign of publisher-owner Otis Chandler in the 1960s and ’70s, moved to the apex of American journalism has suffered a string of indifferent-to-godawful owners, ranging from Mr. Chandler’s cousins to Mr. Zell — that rare journalism mogul who actively hated journalism and journalists….
PROP 8 CHALLENGER ATTORNEYS DAVID BOIES AND TED OLSON AFTER TUESDAY’S HEARING
It is still something of a miracle that Constitutional attorneys David Boies and Ted Olson—who fought against each other in Bush v. Gore—have been the lawyers who made this case against Proposition 8 possible.
Here’s their post hearing press conference.
Their clients, Sandy Stier, Kris Perry, Jeff Zarrillo and Paul Katami spoke as well— along with Kris and Sandy’s sons. It is hard to understand how anyone could object to their marrying each other. Very, very hard.
Here, as promised, are a couple of the more intriguing essays and reports on Tuesday morning’s hearing on the constitutionality of California’s Proposition 8.
DOMA—the Defense of Marriage Act case—is Wednesday.
WHAT ABOUT THE CHILDREN? PROP 8 AND PROCREATION
Amy Davidson from the New Yorker focuses on the fertility issue—or whatever it was that Prop 8 attorney, Charles Cooper was nattering on about regarding fertility and marriage.
Here’s a clip:
This is what we’ve come down to: a lawyer arguing, before the Supreme Court, that a ban on same-sex marriage should be upheld in the interest of discouraging elderly heterosexual men from cheating on their similarly aged female partners with younger women who might get pregnant. At least, that is what Charles Cooper, the lawyer for the proponents of California’s Proposition 8, seemed to be saying in his very odd exchange with Justice Elena Kagan. She had pointed out, amid his talk of the “historic traditional procreative purposes” of marriage, that infertile couples have every right to marry.
JUSTICE KAGAN: If you are over the age of 55, you don’t help us serve the Government’s interest in regulating procreation through marriage. So why is that different?
MR. COOPER: Your Honor, even with respect to couples over the age of 55, it is very rare that both couples—both parties to the couple are infertile, and the traditional—
JUSTICE KAGAN: No, really, because if the couple—I can just assure you, if both the woman and the man are over the age of 55, there are not a lot of children coming out of that marriage.
MR. COOPER: Your Honor, society’s—society’s interest in responsible procreation isn’t just with respect to the procreative capacities of the couple itself. The marital norm, which imposes the obligations of fidelity and monogamy, Your Honor, advances the interests in responsible procreation by making it more likely that neither party, including the fertile party to that…
His thought was interrupted by an exchange between the Justices, in which Scalia made a joke about Strom Thurmond—presumably referring to his marriage to a twenty-five-year-old when he was sixty-eight, and not to the daughter he fathered, at the age of twenty-two, with a woman whom it was, at the time, illegal for him to marry in his home state of South Carolina. And then, back to Cooper:
MR. COOPER: Very few men—very few men outlive their own fertility. So I just—
[EDITOR’S NOTE: Why, why, why did no one ask Mr. Cooper at this juncture if postmenopausal women should be forbidden to marry? Why??? A glorious opportunity, lost, LOST, I tell you!)
JUSTICE KAGAN: A couple where both people are over the age of 55—
MR. COOPER: I—
JUSTICE KAGAN: A couple where both people are over the age of 55.
MR. COOPER: And Your Honor, again, the marital norm which imposes upon that couple the obligation of fidelity…. It’s designed, Your Honor, to make it less likely that either party to that—to that marriage will engage in irresponsible procreative conduct outside of that marriage. Outside of that marriage.
Read on. Please, read on. (How can you resist? I mean, really???!)
ONLY SCALIA AND ALITO SEEMED TO CONTINUE TO BACK PROP 8, SAYS UCI LAW SCHOOL DEAN ERWIN CHEMERINSKY
Oh, may he be right! Maura Dolan at the LA Times has the story on Chemerinsky’s opining on the Supremes possible opining. (Plus some counter opining by Prop. 8 advocates.)
Here’s a clip:
One leading law professor said he saw little support on the U.S. Supreme Court for keeping Proposition 8, California’s ban on gay marriage.
Erwin Chemerinsky, dean of the law school at UC Irvine and a constitutional law professor, said a reading of the transcript showed that several justices were particularly concerned about standing, especially Chief Justice John Roberts and Justice Ruth Bader Ginsburg.
If the court dismisses the appeal on standing, the ruling by a federal district judge would probably stand.
“There might be a majority to leave the district judge’s opinion in place,” Chemerinsky said. “On the other hand, it is also possible the court could reach the merits. Only two justices—Samuel Alito and Antonin Scalia—seemed clearly supportive of Proposition 8.”
Gay marriage foes expressed confidence that the U.S. Supreme Court could uphold the state’s ban on same-sex unions after hearing arguments Tuesday.
“I think we are going to win this case,” Andy Pugno, lawyer for Proposition 8 campaign, said. “We definitely represented the winning case today and the justices asked good thoughtful questions and we were able to say everything that we wanted to get in front of the court today.”
Pugno, counsel for Protectmarriage.com, said he was unimpressed by the arguments in favor of lifting the voter-approved ban on same-sex marriages in California.
Chemerinsky thinks that both Kennedy and Roberts are swing votes, not just Kennedy. I tend to agree—both based on pre-hearing logic re: Roberts and his legacy, and based on Roberts’ behavior in Tuesday’s hearing. Let’s hope they both swing with the tide of history.
TRANSCRIPT AND AUDIO FOR TUESDAY’S HEARING….GRAND THEATER (WITH ENORMOUS AMOUNTS AT STAKE)
If you’d like the full transcript of Tuesday’s hearing plus the audio, NPR has it here.
Charles Cooper, who is attorney for Prop 8, was first up. Cooper is clearly an extremely capable attorney. But he sounded nervous in the beginning, thus was a little wordier than might be optimum and got continually interrupted by impatient and keyed up justices, both on the liberal and the conservative side of the matter.
But then Cooper and the justices all seemed to settle down and the exchanges became legally substantive—even if sometimes a bit odd (as with the procreation, women over 55 section excerpted in the New Yorker story above).
Here are a couple of the more interesting moments:
JUSTICE SOTOMAYOR: Outside of the - outside of the marriage context, can you think of any other rational basis, reason, for a State using sexual orientation as a factor in denying homosexuals benefits or imposing burdens on them? Is there any other rational decision-making that the Government could make? Denying them a job, not granting them benefits of some sort, any other decision?
MR. COOPER: Your Honor, I cannot. I do not have any — anything to offer you in that regard. I think marriage is -
JUSTICE SOTOMAYOR: All right. If that - if that is true, then why aren’t they a class? If they’re a class that makes any other discrimination improper, irrational, then why aren’t we treating them as a class for this one thing? Are you saying that the interest of marriage is so much more compelling than any other interest as they could have?
MR. COOPER: No, Your Honor, we certainly are not. We — we are saying the interest in marriage and the — and the State ‘s interest and society’s interest in what we have framed as responsible pro - procreation is — is vital, but at bottom, with respect to those interests, our submission is that same-sex couples and opposite-sex couples are simply not similarly situated.
But to come back to your precise question, I think, Justice Sotomayor, you’re probing into whether or not sexual orientation ought to be viewed as a quasi-suspect or suspect class, and our position is that it does not qualify under this Court’s standard and - and traditional tests for identifying suspectedness.
The — the class itself is — is quite amorphous. It defies consistent definition as — as the Plaintiffs’ own experts were — were quite vivid on. It — it does not — it — it does not qualify as an accident of birth, immutability in that — in that sense.
And then a classic moment in Scalia-osity in which the good justice musingly wondered why he should have to rule on a social issue that he alleged is “newer than cell phones.”
JUSTICE SCALIA: ….Traditional marriage has been around for thousands of years. Same-sex marriage is very new. I think it was first adopted in The Netherlands in 2000. So there isn’t a lot of data about its effect. And it may turn out to be a — a good thing; it may turn out not to be a good thing, as the supporters of Proposition 8 apparently believe.
But you want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the Internet? I mean we — we are not — we do not have the ability to see the future….
AND IN OTHER NEWS – LAPD OFFICER IS GIVEN 1.2 MILLION IN RACIAL HARASSMENT LAWSUIT
On Tuesday, the verdict came in for LAPD officer, Earl Wright, who described harrowing harassment by his supervisor and some other officers at the department’s Central division.
…The testimony by officers during the trial showed Wright “willingly participated in some of the inappropriate behavior and banter,” said Lt. Andy Neiman, a spokesman for the department.
The jury, however, seemed to reject that notion.
In reaching their decision, jurors noted in written records that the LAPD’s procedures for handling harassment claims such as Wright’s were “ineffective,” Smith said.
Beck said in his written response that the department had learned lessons from the Wright case and “has used its experience from the allegations revealed in this case to more aggressively monitor workplace environments and investigate allegations of misconduct.”
Indeed, cop-on-cop accusations of harassment, retaliation and discrimination have bedeviled the LAPD for years, and cost tax payers tens of millions of dollars in verdicts and settlements.
Wright’s verdict is the second seven-figure payout for the city in as many weeks. Last week, the City Council voted to approve a $1.25-million settlement with two lesbian officers who claimed they had been subjected to sexual harassment by their supervisor.
That’s nearly 3 million in harassment settlements in two weeks.
FOXLA News notes that Wright is still working for the LAPD—now at the department’s training division—and still loves his job.