ADDRESSING THE ISSUE OF LOCKING KIDS UP IN SOLITARY

While severe and overused in the adult justice system, solitary confinement is most destructive for still-developing youths. There have been numerous reports on the devastating effects of locking kids up for twenty-three hours a day (and WitnessLA has linked to them often), yet California still hasn’t defined what constitutes solitary, much less regulated it.

In an LA Times editorial, our pal Rob Greene lays out in unusually clear terms the consequences of putting kids in solitary confinement and what we need to do adequately address the issue. Here’s a clip (but be sure to read the whole thing):

Juvenile justice officials should at the very least have to certify that mental health evaluations were part of the decision-making process for each juvenile, and they should document all instances of solitary lockdown, under consistent standards and definitions. SB 61 by state Sen. Leland Yee (D-San Francisco) would require such standards and documentation. It’s a bill that deserves to move forward.

The Senate has been wary, and appropriately so, of moving forward on any bill that could impose costs on counties — costs that would be passed along to the state. The budget has been cut year after year, and now, when there may be some funding available, lawmakers must decide carefully what to do with it.

In making that decision, they should keep in mind that the state’s failure to meet the mental health needs of so many Californians has led directly to the prison overcrowding crisis, and that the failure to meet the mental health needs of inmates for decades has resulted in the court order to beef up in-prison care (at enormous cost) and to release tens of thousands of prisoners. The juvenile justice system is inextricably linked to the adult system and must deal with a similar, although more vulnerable, population.

GOV. BROWN’S OFFICE BEGINS APPEAL PROCESS TO GET SUPREME COURT INTERVENTION ON PRISON POP. CAP

Monday, California officials appealed the federal court decision to uphold an order that, by the end of 2013, the CA prison population must be further reduced by 9,000 inmates.

KPCC’s Julie Small has the story. Here’s a clip:

Deborah Hoffman of California’s Department of Corrections and Rehabilitation said Monday the state has appealed to the U.S. Supreme Court because the panel of federal judges “did not fully or fairly consider the evidence that with our greatly reduced prison population, prison health care now exceeds constitutional standards.”

In 2011, the legislature enacted California’s Criminal Justice Realignment law, which diverts lower level felons to the counties. Today the prisons hold 30,000 fewer inmates than they did when the federal judges ordered the state to reduce the prison population.

Monday’s filing is a notice of appeal to the district court stating California’s intention to ask the U.S. Supreme Court to intervene. It’s the first step in an appeals process that could take years — if the nation’s highest court decides to take up the case.

BRADY V. MARYLAND…FIFTY YEARS ON

Fifty years after Brady v. Maryland—the SCOTUS ruling that dictates prosecutors must present defendants with any and all known exculpatory evidence—there is little incentive and still no real accountability in place to keep prosecutors from breaking the Brady rule.

The Atlantic’s Andrew Cohen breaks down why Brady is flawed, and what can be done to reinforce it. Here’s how it opens:

Last Thursday evening at a dinner in New Orleans, Keith Plessy and Phoebe Ferguson came together again to bestow an award on John Thompson, the noted death row exoneree, who was being feted by the Innocence Project New Orleans after nearly two decades of false imprisonment. The names of the presenters probably don’t ring a bell to you until you put them together and separate them with a “versus,” as in Plessy v. Ferguson. The descendants of the litigants of one of the worst Supreme Court decisions ever wanted to pay homage to a litigant who had belatedly benefited from one of its best. Who says irony is dead?

The timing of the Project’s 12th anniversary “gala” was propitious. It came just four days before the 50th anniversary of the Supreme Court’s decision in Brady v. Maryland, decided on this day in 1963, in which the justices unanimously declared that prosecutors have a constitutional obligation to share with criminal defendants all “exculpatory” evidence officials may have. “Society wins not only when the guilty are convicted but when criminal trials are fair,” wrote Justice William O. Douglass, for the Warren Court, as it again sought in those progressive days to enhance individual rights at the expense of government power.

Thompson is a free man today because of the so-called “Brady” rule. But he likely would have been a free man all along — without spending 14 years on death row — had his prosecutors obeyed the law in the first place. That dichotomy is what makes Thompson such a poignant symbol of the Brady rule. He proves both that it works and that it is deeply flawed; that it saves innocent people from being railroaded by prosecutors and that countless others are wrongly convicted and imprisoned anyway. The sad truth is that 50 years after Brady, in an increasingly complex criminal justice system, too many prosecutors still hide exculpatory evidence, and too few judges do anything about it.

AND MINNESOTA MAKES TWELVE…

The Minnesota Senate voted Monday to legalize gay marriage, and Governor Mark Dayton immediately announced he would sign the bill, allowing gay couples to marry by August. Go Minnesota!

The NY Times’ Monica Davey has the story, if you missed it today.

WEST LA BOY SCOUT CHAPTER PUSHES ORGANIZATION TO WELCOME GAY YOUTH AND ADULTS

The W. LA County branch of the Boy Scouts of America is calling for the organization to both execute an offered proposal to lift the ban on gay scouts and also allow gay adults to be troop leaders.

Reuter’s Alex Dobuzinskis has the story. Here’s how it opens:

The council, which represents more than 14,000 scouts and ranks as the nation’s 14th-largest scouting chapter, called for the Texas-based youth organization to go further by welcoming gays into the ranks of its adult volunteers as well.

In issuing its declaration on Tuesday urging a “true and authentic inclusion policy,” the Los Angeles group joined at least two branches in New York state that have pushed for allowing gays to work as troop leaders or staff members.

The Boy Scouts of America holds its annual national meeting on May 23 in Texas, where a resolution will be voted on that would end the century-old group’s policy denying membership to youths on the basis of sexual orientation.

AND WHILE WE’RE ON THE SUBJECT…

On Tuesday, Delaware’s state Senate voted to make DE the eleventh state to legalize gay marriage. (Way to go, Delaware!)

Here’s a clip from the Associated Press:

Less than an hour after the Senate’s 12-9 vote, Democratic Gov. Jack Markell signed the measure into law.

“I do not intend to make any of you wait one moment longer,” a smiling Markell told about 200 jubilant supporters who erupted in cheers and applause following the Senate vote.

NEW BILL WOULD FURTHER EQUALITY FOR TRANSGENDER YOUTH IN CA SCHOOLS

AB 1266, a bill in California Legislature introduced by Assemblyman Tom Ammiano, would allow transgender kids to participate in sex-segregated school sports and activities regardless of the sex listed on the student’s records. Passage of AB 1266 would be a huge step in the direction toward equal opportunities for trans youth who already face plenty of hardships and discrimination in school, as it is.

NY Times’ Ian Lovett has the story. Here’s a clip:

Over the last decade, the International Olympic Committee and the National Collegiate Athletic Association have adopted regulations for athletes who were born male but now consider themselves females and want to play on women’s teams.

And now, high schools are beginning to take on the issue as well, as a small but growing number students who identify themselves as transgender have begun demanding access to the same school activities, like interscholastic sports, that other students enjoy.

More than half a dozen states, from Washington to Massachusetts, have adopted rules to allow transgender students to compete on teams that correspond with their gender identities rather than the sex listed on their school records. Half a dozen more states are considering similar regulations. And a bill in the Legislature would make California the first to specifically guarantee by law that transgender students like Tony are allowed to play school sports.

“Transgender students deserve equal access to everything in public education, including sports,” said Tom Ammiano, the state assemblyman sponsoring the bill. “You can’t discriminate just because you’re uncomfortable with a young man transitioning to become a young woman.”

MAJORITY OF AMERICANS WRONGLY ASSUME GUN VIOLENCE IS ON THE RISE

Firearm-related crimes have seen a significant decrease over the last two decades, but most Americans are under the impression that gun crimes have increased since 1993 with only 12% of those surveyed aware of the decrease, according to a report released Tuesday by the Pew Research Center. Another Tuesday report from the Bureau of Justice Statistics says that the number of gun-related homicides dropped 39% from 1993 to 2011.

LA Times’ Emily Alpert has the story. Here’s a clip:

It’s unclear whether media coverage is driving the misconception that such violence is up. The mass shootings in Newtown, Conn., and Aurora, Colo., were among the news stories most closely watched by Americans last year, Pew found. Crime has also been a growing focus for national newscasts and morning network shows in the past five years but has become less common on local television news.

“It’s hard to know what’s going on there,” said D’Vera Cohn, senior writer at the Pew Research Center. Women, people of color and the elderly were more likely to believe that gun crime was up than men, younger adults or white people. The center plans to examine crime issues more closely later this year.

Photo by Douglas Muth through Wikimedia Commons.

JURY AWARDS $1.1 MILLION TO PALMDALE TEENAGER SHOT BY LASD DEPUTY WHILE ON BIKE WITH TOY GUN

This week a jury awarded 19-year old William Fetters $1,127,600 in medical bills and damages for pain and suffering, after Fetters was shot on May 10, 2009 by Los Angeles County Sheriff’s deputy, Scott Sorrow.

Fetters, who was then 15-years -old, was riding his bicycle, and playing a tag-like game with his brother and friends, when he was shot.

Deputy Sorrow testified at trial that Fetters was brandishing a realistic looking toy gun that he refused to drop. This, the deputy said, caused him to fear for his life and that of his partner so he fired a single shot at Fetters.

The teenager was hit in the rear of the side of his chest.

According to Fetters, matters went as follows: he was riding his bike down the street toward a local baseball diamond, playing “cops and robbers” with his brother and friends as they went. As the boys rode, Sorrow approached in his car and asked Fetters to stop riding and drop the toy gun he was holding, and that he dropped it right away. After that, Fetters said, the deputy shot him. Then, as he lay on the ground wounded, yelling that the gun was just a toy, Sorrows handcuffed him.

(Sorrows also testified that he handcuffed the wounded boy after shooting him and seeing that the gun was on the ground and out of his reach.)

At the trial—and according to interview transcripts—-Sorrows insisted that Fetters did not drop his toy gun when ordered to do so, while Fetters said the opposite. The teen said he was scared, and when the deputy barked the order, he dropped the gun immediately, then tried to get off his bike, at which point Sorrows shot him.

Oddly, according to Fetters’ attorney Bradley Gage, in an earlier version of an interview transcript that was presented at a hearing for the case in 2012, Sorrows appears to say that that Fetters did drop the gun.

But for this month’s trial, said Gage, the same transcript was amended to read that Fetters did not drop the gun. When questioned about the discrepancy in trial, Gage said that Sorrows discribed the first version as a “typo.”

(Here is the first version of the interview with Sparrow: EXHIBIT 35 – 1st INTERVIEW)

About the matter of whether Sorrow shot Fetters “with malice,” which the court was also asked to consider, the jury as unable to not a verdict. Thus a mistrial was declared for that part of the case. The question of “malice” is due to be tried again in mid April.

Sheriff’s Department spokesman Steve Whitmore said that the department strongly disagrees with this week’s jury judgment, and that Fetters was holding what appeared to be a real handgun which he pointed at the deputies when he was shot.

WHY ARE PEOPLE ARE DYING LIKE CRAZY IN SAN DIEGO COUNTY JAIL?

Reporters Dave Maas and Kelly Davis, have a startling story in San Diego City Beat showing that the jail death capital of California is….San Diego County.

Didn’t see that coming.

Maas and Davis note that jail inmate deaths have been tracked nationally only since 2000, when Congress passed the Deaths in Custody Reporting Act (DCRA) to “help address increasing reports of neglect and abuse in U.S. jails.”

According to Department of Justice statistics tracked from the period of 2000 to 2007, for that time period, San Diego was second in the state, for jail deaths. (Alameda county was first.)

Then when the reporters began gathering stats from 2007 to the present through public records act requests, things got worse for SD, not better. In this newer period, San Diego County was at the top of California’s list—based on a calculation of deaths per 100,000 people (the standardized metric that is most often used for this kind of calculation so that one may compare apples to apples).

Riverside County, Alameda and Los Angeles ranked 2nd, 3rd and 4th, respectively, behind San Diego.

Next the reporters plan to drill down into the county’s figure so try to determine if any of those deaths were preventable.

SCOTUS JUSTICE RUTHIE’S VERY POWERFUL WHISPERS

One of the most to-the-point remarks in this week’s gay marriage hearings was said so softly that many in the court gallery didn’t hear Justice Ruth Bader Ginsburg’s words when she talked about “skim milk.”

Greg Stohr at Bloomberg has a nice story about the physically diminutive, but intellectually and strategically powerful Miz Ruth.

Here’s clip:

Justice Ruth Bader Ginsburg is sometimes barely audible when she speaks at the U.S. Supreme Court. That doesn’t mean she isn’t heard loud and clear.

As the court took up same-sex marriage this week for the first time, the 80-year-old justice offered a reminder that she remains a force, the anchor of court’s liberal wing. At various points, she served as the hard-hitting questioner, the voice of experience and a source of wit.

Ginsburg delivered one of the most memorable lines of the two days of arguments when she said yesterday that a federal law limiting benefits to married gay couples would create “two kinds of marriage — the full marriage, and then this sort of skim-milk marriage.”

The quip drew chuckles throughout the packed courtroom. The laughter would have been louder except that many of the 500 onlookers couldn’t hear Ginsburg, whose soft speaking style means her words often get lost in the corners of the courtroom.

Her quiet manner and diminutive stature make Ginsburg an easy justice to underestimate — for those not familiar with her work.

“It is clear that she is respected and even somewhat feared by her adversaries on the bench,” said Garrett Epps, a University of Baltimore law professor who attended the argument.
The skim-milk analogy was her way of “explaining in clear terms — terms that will be remembered and carried forward to judges and citizens outside the court — what is wrong with the idea that the federal government can withhold the title of marriage to couples legally wedded in their states,” Epps said….

The New Yorker’s Jeffrey Toobin has a terrific profile of Ginsburg in the New Yorker earlier this month, but regrettably it’s hidden behind their paywall. However, if you don’t have your own subscription and can’t snatch a friend’s magazine, Toobin was interviewed on Fresh Air with Terry Gross about his profile, and it’s very good (and covers many of the same points as he did in the profile).

SUPES VOTE TO GIVE SHERIFF ASKED FOR $22 MILLION FOR PATROLS

At Tuesday’s LA County Board of Supervisors’ meeting the board voted to give the sheriff’s department $22 million to help shore up the LASD budget. The money is reportedly slated to pay for officers to adequately patrol the unincorporated areas of Los Angeles County—namely the areas that the sheriff’s department is legally obligated to patrol. (But why quibble.)

Christina Villacourt of the Daily News has the story on the board’s vote. Here’s a clip:

….Short on cash at the beginning of this year, Sheriff Lee Baca reduced patrols in unincorporated areas but not in cities and agencies where his department is contractually obligated to maintain a certain level of service.

An audit revealed residents of unincorporated areas ended up having to wait 17 percent longer — a minute more — for deputies to respond to their 9-1-1 calls, compared to people in contract cities and agencies.

At a tense board meeting, Supervisor Gloria Molina accused Baca of “stealing” from unincorporated areas to serve contract cities and agencies.

Baca restored the patrols by pulling dozens of deputies out of gang enforcement and other units and sending them to monitor unincorporated areas.

Speaking of audits, wasn’t there going to be some kind of audit of the LASD budget when this whole thing came up a month or so ago? Or did we all just get tired and forget about that? (I’m just curious.)

MORE BAD PRESS FOR PASADENA PD AROUND THE TRAGIC DEATH OF KENDRIC MCDADE

The Pasadena Star’s Brian Charles continues to vigorously report on this hydra-headed story of alleged Pasadena Police misconduct, misadventure and, in the case of Kendric McDade, a series of tragic mistakes—or worse. Here’s a clip from the latest sad wrinkle.

In the final moments of his life, Kendrec McDade was handcuffed and “began to twitch” on the ground after being shot by two Pasadena police officers, according to a civil rights lawsuit filed Tuesday in federal court.

McDade, a onetime standout football player at Azusa High School, tried to talk to officers as he lay dying, the lawsuit reads.

Instead, Pasadena police officers left McDade handcuffed in the street late Saturday night “for a protracted period of time without administering first aid,” the lawsuit filed by McDade family attorney Caree Harper reads.

The 19-year-old Citrus College student died later at Huntington Memorial Hospital.

Pasadena police spokeswoman Phlunte Riddle denied that McDade was left to die, but would not comment on the specifics of the case.

Named as defendants in the lawsuit are Pasadena police Chief Phillip Sanchez, Officer Mathew Griffin, Officer Jeffrey Newlen and detective Keith Gomez. It seeks unspecified damages.

Read the rest. And note that off to the right side of the story there are links to Charles’ other stories.

ERICA AGUILAR OVER AT KPCC reports that one of the officers involved investigating the McDade shooting is already being investigated for a hefty string of allegations of misconduct.

Here’s a clip from her story:

Pasadena’s police chief said he’s investigating two officers on accusations that they intimidated suspects and witnesses. One of those officers is a detective investigating the officer-involved shooting of Kendrec McDade.

Pasadena police shot and killed 19-year-old McDade in March after they said he reached for his waistband. Police say they thought he had a gun because of a false emergency call, but McDade was not armed. Keith Gomez, a corporal with the Pasadena department, is looking into the incident.

Last week the Pasadena chapter of the NAACP filed a complaint with the police department alleging that Gomez intimidated a suspect and witnesses and manufactured evidence in a 2006 murder case he investigated.

“Sometimes officers may do things that are inappropriate,” said Joe Brown, the chapter president, “and there appears to be sometimes patterns that certain officers are using that are really going over the line.”

A ROUND-UP OF THE SUPREMES AND DOMA

Here’s a clip from Adam Liptak at the New York Times writing about the justices’ doubts about DOMA.

The Supreme Court appeared ready on Wednesday to strike down a central part of a federal law that defines marriage as the union of a man and a woman, as a majority of the justices expressed reservations about the Defense of Marriage Act.

On the second day of intense arguments over the volatile issue of same-sex marriage, Justice Anthony M. Kennedy, who most likely holds the decisive vote, returned again and again to the theme that deciding who is married is a matter for the states. The federal government, he said, should respect “the historic commitment of marriage, and of questions of the rights of children, to the states.”

That suggests that he is prepared to vote with the court’s four liberal members to strike down the part of the 1996 law that recognizes only the marriages of opposite-sex couples for more than 1,000 federal laws and programs. Such a ruling would deliver federal benefits to married same-sex couples in the nine states, and the District of Columbia, that allow such unions.

If the 1996 law stands, Justice Kennedy said, “you are at real risk with running in conflict with what has always been thought to be the essence” of state power, which he said was to regulate marriage, divorce and custody.

All four members of the court’s liberal wing questioned the constitutionality of the law, though they largely focused on equal protection principles rather than on the limits of federal power.

Justice Ruth Bader Ginsburg, for instance, said the law effectively created “two kinds of marriage: the full marriage, and then this sort of skim milk marriage.”

David Souter and David Savage of the LA Times also think that the liberal justices and Justice Kennedy are in favor of striking down DOMA. Here’s a clip:

The Supreme Court wrapped up a second day of arguments on gay marriage, as Justice Anthony M. Kennedy and the court’s liberal justices appeared headed toward striking down the part of the Defense of Marriage Act that denies federal benefits to legally married gay couples.

Kennedy repeatedly said the states, not the federal government, have the primary role in deciding who is married. The question is “whether the federal government has the authority to regulate marriage,” he said.

Meanwhile, the court’s four liberal justices said the 1996 law is flawed and discriminatory because it treats married same-sex couples differently than other married couples.

Justice Ruth Bader Ginsburg said she too found the discrimination troubling. Some couples can have “full marriage” under the law, but others who are gay are left with “skim-milk marriage,” she said.

Justice Sonia Sotomayor said the law creates two classes of married couples. “You are treating married [gay] couples differently,” she said. “You are saying that New York’s married couples [who may be gay] are different than Nebraska’s,” she said, even though both are legally married under state law.

She questioned whether the government “can create a class they don’t like — here homosexuals –and … decide they get different benefits on that basis.”

The ATLANTIC WIRE has a transcript of Wednesday’s hearing that is nicely laid out so your eye can skip over the less interesting parts, in order to read and assess what the SUPREMES said for yourself.

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.

Have a look.

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—

[Laughter.]

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.

[Laughter.]

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 LA Times Joel Rubin reported on the three day trial..

Here’s a clip:

…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.

IS OUR RIGHT TO COMPETENT LEGAL COUNSEL IF WE NEED IT A MYTH?

Every week I get a couple of calls from gang members or former gang members who are locked up in county jail or state prison. These collect calls are a byproduct of my years of gang reporting. I spent so much time on the street talking with homeboys and homegirls that many of them came to view me as some kind of white lady auntie who always carried a notebook, an audio recorder and a camera.

Many of the guys I knew from way back when have long ago turned their lives around and have good jobs, kids, wives and houses of their own. But some have not, at least not with any consistency. So when they, or their brothers or nephews, get locked up, sometimes they call me.

I talked to such a guy earlier this week. He was someone I only vaguely know, but it was the weekend and I had a minute to two to spare so I took his call. We’ll call him David. He called because he’d just signed a plea bargain but wanted advice as to how he might get his 18-month sentence transferred to county jail, which would allow him to call and see his daughter for whom he had always been the sole caretaker, instead of doing the year and a half in state prison. I told him that his public defender would likely have the best luck in talking to the judge about such a change—and the judge would either cooperate or not.

No, he said. “I already asked my lawyer. He told me to go F— myself.” He paused awkwardly. “Sorry for cussing.”

“He told me the first day he saw me that I was going to take a deal, and that he didn’t want to hear any argument from me. He hardly even looked at my case.” David took the deal, he said. “And I’m okay with that. But all I wanted is for my lawyer to ask the judge if I could do my time here, where I could make phone calls and get visits. If I go to prison, they told me I’ll spend the whole 18 months in ‘reception,’ which means I won’t be allowed any phone calls or visits. And what is my little girl going to do? She’s six and she’s never had any other parent but me.”

Okay, tell me how this conversation when again,” I said.

“He told me to go F— myself,” David reiterated. “When I tried to explain, and I mean really nicely and respectfully, he said it again.”

Now, as I said earlier, I don’t really know David, thus I don’t know if some crucial part of his story is false, or exaggerated, or left out. But it had the odd ring of truth. He made no excuses for himself. He simply had this one anguished request, that the judge could grant—or not. Yet, David’s attorney, who would have lost nothing by making a quick pitch to the judge, instead told David to go screw himself. (After telling him he was taking a deal, regardless of whether he wanted to take a deal or not.)

I know many wonderful, wonderful public defenders and court appointed attorneys who do work a gazillion times past what they are every paid for, and who believe ardently in the principal that everyone deserves a competent defense. A lot of those PD’s cope with impossible caseloads, yet keep working like crazy, with great intelligence and compassion, to provide what their clients need. In fact, it’s public defenders’ associations that are fighting to make things better.

Yet, I’ve also seen public attorneys who do the absolute minimum, who actively loathe most of their clients whom they believe are scum who should just take what’s coming to them.

Which is not an attitude that you want in your attorney.

It sounded like David’s lawyer fell into the latter category.

I bring all this up as a very long introduction to this essay by Kevin Burke, a trial judge who is the immediate past president of the American Bar Association. Burke writes about the 50th anniversary of U.S. Supreme Court decision of Gideon v. Wainwright, in which the court ruled that defendant in a criminal case had a constitutional right to have an attorney, and if he or she could not afford one the government had an obligation to provide said attorney.

In his essay, Burke suggests that maybe our 50-year-old right to counsel has become more of myth than the principal the Supremes intended a half century ago with their unanimous ruling. Here’s are two clips from Burke’s essay:

…Today there are those who claim [Gideon] is all a mirage. The right to counsel they say is just “another lie we tell each other to hide the truth” about unequal justice in America. Andrew Cohen wrote this week, “for all the glory we heap upon Gideon, for all the preening we display about our fealty to the rule of law, the sad truth is that there is no universal right to counsel today. We know today which path our legal and political leaders chose. Instead of ensuring that the right to counsel kept pace with the explosion of criminal cases, the Supreme Court and the Congress (and state legislatures) allowed the right to be left by the side of the road.”

What happened that diminished the bright promise of Gideon? First, the reality was there was no appetite for anyone to fund the mandate or for courts to order adequate funding. Neither Fortas nor Krash (and perhaps Justice Black as well) foresaw the problems of financing the new right to counsel. Caseloads and inadequate representation stripped Hugo Black’s admonition of the importance of the right to counsel of its vitality. They did not foresee a criminal justice system dominated by plea bargaining. They did not nor could have at the time foreseen the collateral consequences that flow from a conviction today.

[SNIP]

Every day in thousands of courtrooms across the nation, from trial courts that handle felony cases to limited jurisdiction justice of the peace courts, the right to counsel is violated. Judges conduct hearings in which people accused of crimes and children accused of delinquency appear without lawyers. Some are middle class and therefore not eligible for appointed lawyers. Many plead guilty without lawyers. Others plead guilty and are sentenced after learning about plea offers from lawyers they met moments before. They are afraid and intimidated by the courts. Innocent people plead guilty to get out of jail. Too many plead guilty with no idea that there are collateral consequences that could change their lives.

Read the rest here.

(NOTE: A hat tip to Doug Berman of Sentencing. Law and Policy who flagged Burke’s essay.)

REMEMBERING ANTHONY LEWIS

Pulitzer Prize-winning legal columnist and author Anthony Lewis died on Monday.

His death was an odd bit of timing, since Lewis’s most enduring work is Gideon’s Trumpet, about the that very Supreme Court decision that gave Americans the right to have counsel.

There are lots of remembrances about how Lewis’s knowledge and his love of writing about the law made his legal reporting clear, elegant, and understandable. This one from the Atlantic’s Andrew Cohen is a good one. Here’s a representative clip:

…The headline of the [New York Times] obit says that Lewis “transformed” coverage of the United States Supreme Court, and he did. But he did much more than that. He transformed coverage of the broader beat of the law, and he inspired generations of writers (and lawyers and judges, for that matter) to try to better explain and translate legal jargon into phrases and concepts that laypeople could more easily understand.

Lewis’ masterwork, Gideon’s Trumpet, was a piece of art for precisely this reason — word by word, simple sentence by simple sentence, he deconstructed the Sixth Amendment’s right to a fair trial, and murky Supreme Court procedure, and state law, and the insular world of Washington law firms, and all the other satellite topics that revolved around that seminal case. Here is a representative passage:

The case of Gideon v. Wainwright is in part a testament to a single human being. Against all the odds of inertia and ignorance and fear of state power, Clarence Earl Gideon insisted that he had a right to a lawyer and kept on insisting all the way to the Supreme Court of the United States

His triumph there shows that the poorest and least powerful of men-- a convict with note even a friend to visit him in prison — can take his cause to the highest court in the land and bring about a fundamental change in the law.

But of course Gideon was not really alone; there were working for him forces in law and society larger than he could understand. His case was part of a current of history,and it will be read in that light by thousands of persons who will known no more about Clarence Earl Gideon than that he stood up in a Florida court and said: “The United States Supreme Court says I am entitled to be represented by counsel.”

For his work, in 1963, he won a Pulitzer Prize (his second, his first coming years earlier with his equally trenchant work covering the civil rights movement). Afterward, taking the longer view, Lewis wrote pointedly and poignantly for decades on the op-ed page of the Times, wrote excellent books like Make No Law (about the key first amendment case New York Times v. Sullivan), and contributed regularly to the New York Review of Books.

When given the chance over the years, I always tell young journalists and young lawyers to read everything Lewis has written, because his writing was always so clear, and so accessible, and such a good starting point for more involved research on any given legal topic….

PREPARING FOR TUESDAY’S GAY MARRIAGE HEARINGS BEFORE THE SUPREMES

A few stories for your reading pleasure:

CALIFORNIA MAYORS URGE SCOTUS TO OVERTURN PROP 8

David Siders at the Sacramento Bee reports that ” mayors of 25 California cities are urging the court to find the measure, Proposition 8, unconstitutional..”

Read more here:

THE NEW YORKER’S GEOFFREY TOOBIN ON WHY NO MATTER WHAT THE SUPREMES DECIDE, “THOUGH THE BATTLE CONTINUES THE WAR IS OVER”,

For the moment, Toobin’s essay from the April 1 issue of the New Yorker isn’t hidden behind a paywall. Let’s hope it stays that way but, if you’re not a subscriber, you might want to read it now, just in case. It’s short, very smart and gives an interesting way in to what some of the arguments will be, and what is at stake.

Here are some clips:

In 2003, the Supreme Court decided that gay people could no longer be thrown in prison for having consensual sex. Specifically, Justice Anthony Kennedy’s opinion, in Lawrence v. Texas, declared that Texas’s anti-sodomy law “demeans the lives of homosexual persons” and violated the right to liberty guaranteed by the Fourteenth Amendment. But Kennedy was careful to describe the limits of the Court’s holding. He wrote that the case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” In other words, in Kennedy’s telling, Lawrence v. Texas was not about same-sex marriage.

To which Justice Antonin Scalia responded, in a dissenting opinion, “Do not believe it.” He explained:

If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct; and if, as the Court coos (casting aside all pretense of neutrality), “when sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “the liberty protected by the Constitution”?

What, indeed? A decade later, it’s clear that Scalia was right. Once a society decides that the law must treat a group of people equally in one area of life, it becomes harder—and, eventually, impossible—to justify discriminating against them in others. If gay people can’t be prosecuted for being gay, then they shouldn’t be fired for being gay, either. If they can’t be fired, then they shouldn’t be denied custody of children. And so on, to the issue of marriage.Each of these steps is incomplete under current law, as well as in the real world, but the direction they are taking is unmistakable. This week, we will begin to find out whether the Justices will impede or accelerate that process. But, at this point, not even the Supreme Court can reverse the march toward equality.

And then there’s this:

…It’s important that the Justices decide these two cases the right way.

It’s just not as important as it once seemed. When Theodore B. Olson and David Boies, the lead lawyers in the Prop 8 case, filed their lawsuit, in 2009, it appeared to many informed observers that they were taking a foolhardy risk. At the time, gay-rights organizations had been following a cautious, state-by-state approach, and it seemed that an adverse decision in a major federal lawsuit could set back the cause of same-sex marriage for a generation. But, whatever the Justices do, that’s not going to happen. The question about marriage equality for all Americans is not if it will pass but when. The country has changed, and it’s never going back to the way it was. Though the battles continue, the war is over.

Read the rest.

Photo from the Missouri Bar Association

LASD Captain Kelley Frazer (see above video) is scheduled to be promoted to the position of commander and will be working under Assistant Sheriff Terri McDonald, the recently recruited head of the Los Angeles Sheriff’s Department’s Custody Division.

Frazer is an openly lesbian officer.

To take the promotion, Frazer will leave her post as the highly-regarded head of the LASD’s West Hollywood station, which she has led since April 2010.

When Frazer was promoted to captain and given charge of WeHo she was, at that time, the first openly gay person in department history to serve as an LASD branch commander.

Prior to WeHo, Frazer worked for the department’s Emergency Operations Bureau, and at Carson, Lennox and Temple stations, among other postings.

So what do her troops think of her?

“She’s Amazing!” said watch commander Lt. William Nash, when I called West Hollywood to get a reading. “It’s really bitter-sweet for us. We’re happy for her, and we know she deserves this opportunity but….she will be missed. She’s a great person. Ask anyone here.”

According to Nash, Fraser “cares for everyone in her command,” really looks out for their well being, and knows how to get the best out of people. “But she’s also a tough as nails as a cop,” said Nash. “She wants to make sure we’re on top of our jobs. She wants us to be safe, but she wants this community to be safe. And she really wants to get the bad guys off the street.”

West Hollywood Mayor, Jeff Prang, told the WeHo News that,”That an out member of the LGBT community now is in the highest ranks of the sheriff’s department is really good for West Hollywood and it’s good for LGBT people.”

Indeed. And with any luck Frazer will be good for the LASD Custody Division.

PREDICTING WRONGFUL CONVICTIONS

In a fascinating new study, the National institue for Justice looked at 460 erroneous convictions and “near misses,” in which “factually innocent” defendants were released or acquitted post-indictment, and found that there were 10 factors that were most most often led to a wrongful conviction. We’ve long known the elements that most often went wrong in a wrongful conviction (mistaken or coerced eyewitness testimony, false confessions, perjured informant testimony, etc.) but the study concluded that it was incorrect to call those factors “causes.”

Causes, they found, were different. So what elements, if they appear in combination, are most likely to cause a wrongful conviction? Here are the ten factors they found:

*A younger defendant
*A criminal history
*A weak prosecution case
*Prosecution withheld evidence
*Lying by a non-eyewitness
*Unintentional witness misidentification
*Misinterpreting forensic evidence at trial
*A weak defense
*Defendant offered a family witness
*A “punitive” state culture

Anyway, to find out more, here’s the 410-page study itself. (Scroll to the executive summery.) And here’s a quickie look at the study’s contents at The Crime Report.

THE RIDICULOUS MATTER OF THE SHOT-UP-AND-NEARLY-KILLED NEWSPAPER WOMEN, THEIR LAPD-PROMISED REPLACEMENT TRUCK…AND THE HOT POTATO OF TAXES (!!!)

Surely someone at the LAPD can find a way to cut through this idiotic tax-related impasse… But, evidently so far, they haven’t.

The Huffington Post’s Anna Almendrala has the story. Here’s a clip:

Accusations are flying over the Los Angeles Police Department’s bungled effort to replace a bullet-ridden pickup truck that belonged to two women who were mistaken for fugitive Christopher Dorner one horrifying morning.

Margie Carranza, 47, and her mother, Emma Hernandez, 71, were delivering newspapers in Torrance, Calif., during the early hours of Feb. 7 when members of the LAPD mistook their blue Toyota Tacoma for Dorner’s getaway car, a gray Nissan Titan pickup. Officers fired 102 bullets into Carranza’s truck. While Carranza was injured by the shattered glass, Hernandez was shot in the back.

Two days after the almost-deadly case of mistaken identity, LAPD Chief Charlie Beck visited the victims’ homes to apologize, and the department publicly promised to give them a new pickup truck by the next week.

Now, more than a month after the shooting, the police still haven’t replaced Carranza’s truck. A prominent car dealership owner and a lawyer representing the two women are pointing fingers about whose fault it is….

Read on.

YOUNG UNDOCUMENTED “DREAMERS” WANT TO KNOW WHY THEY DON’T CAN’T HAVE ACCESS TO AFFORDABLE HEALTHCARE SINCE THEY ARE, THEY SAY, FOR THE MOMENT ANYWAY, LEGAL

The video above was just released by the The California Endowment, in partnership with a group of undocumented youth in Southern and Central California. It kicked off the Endowment’s new #Health4All campaign, “an effort to drive a dialog about providing a health care solution for the remaining uninsured.”

This earlier story by Drew Joseph for the San Francisco Chronicle explains the issue from the Dreamers’ perspective. Here’s a clip:

California’s young immigrants who have been granted reprieves to stay in the country stand to gain little from the federal health reform law that the state Legislature is working to implement.

The Affordable Care Act excludes illegal immigrants from accessing the law’s benefits, but some immigrant and health advocates are angry that the young people known as Dreamers have been left out, saying the policy contradicts the law’s intent of expanding coverage to more people.

“It really defeats what the goals of the ACA were to begin with,” said Sonal Ambegaokar, health policy attorney at the National Immigration Law Center….

Read the rest (and watch the video!)

Each year the Liberty Hill Foundation names five local “Leaders to Watch,” the idea being that these are five exceptional people who are fighting for social justice from the grassroots up, and are on the verge of doing still more.

Liberty Hill has just named this year’s Five to Watch” whom you can find here.

We were particularly happy to note the selection of Kruti Parekh, the Program Coordinator Youth Justice Coalition as one of the five.

The idea behind the Youth Justice Coalition (YJC) is to train young people who have been affected by the criminal justice system, to organize to change unjust and ineffective laws, practices and systems that have an impact on them or their families.

With this in mind, in 2007, YJC opened Free L.A. High School, a charter school in partnership with John Muir High School that helps kids who have either dropped out or been pushed out of other schools and who have, in most cases, had some kind of contact with the juvenile justice system. Kruti is the school’s program director. Now at Free LA, in addition to core academic classes like English, Algebra, and Science, students study community organizing, public policy development, the use of media and communications, and advocacy.

Through Kruti’s efforts (along with that of YJC’s executive director, Kim McGill) YJCs young people have learned to effectively protest, lobby, hold press conferences and partner with other organizations in order to have a very real and measurable part in changing public policy. For instance, Kruti and YJC were instrumental in bringing about a new city policy that protects high school and middle school students from receiving $250 tickets for being late to school and other minor infractions, and were among the most consistant and vocal advocates for the successful passage of the Fair Sentencing for Youth act, SB9, which gives some California inmates sentenced to life without parole for crimes they committed as minors, at least a glimmer of a chance of one day being paroled.

According to Liberty Hill, Kruti’s mission is to help all LA’s kids have a better future by “prioritizing ‘youth opportunities over youth cages.”

We’re for that.

RICHARD WALDON AND OPERATION USA: THE “CHARITY BUCCANEER” STILL RIDES AFTER 35 YEARS

In Wednesday’s LA Times, Patt Morrison interviews Richard Waldon, the LA guy who, as the founder of Operation USA, has managed for 35 years to bring medicines, food and other aid to areas of the world deeply in need—sometimes when others could not or would not venture in.

International relief work is a little outside WLA’s normal story area But I’ve known Richard for all of those 35 years and, as a reporter and friend, was on a couple of Op USA’s earliest wild adventures in aid bringing.

Richard’s the real deal, and I thought you might enjoy the interview as a change of pace, (Be sure to read the whole story. Otherwise you’ll miss such excellent tidbits as how Richard uses the latest issue of Playboy Magazine as a rarely-fails bribe to get past certain roadblocks in certain countries.)

Here are some clips:

Almost on impulse, almost 35 years ago, Richard M. Walden and a friend rounded up six tons of relief supplies and a jet to ferry them to Vietnamese boat people in Malaysia. Thus was Operation California — now Operation USA — born. A Times headline soon called him the “charity buccaneer,” a red-tape-slashing contrarian who fretted about the “international web of neglect,” and who still has sharp words for relief efforts unmet and relief agencies that don’t measure up. He has steadfast celebrity supporters, like Julie Andrews, but the advent of social media that let anyone text a few bucks to Lady Gaga’s favorite charity in the middle of a concert has made things harder for brick-and-mortar charities like Operation USA. Walden soldiers on, boldly going where too many charity-come-latelies can only try to go.

[SNIP]

What sort of dangers in general do you face?

We were not far from Abbottabad, Pakistan. We had an ambulance to evacuate women in complicated labor from the frontier to Islamabad hospitals. It went up with no English-language markings [but] it got stopped, trashed and burned. They didn’t harm the lady in labor and the driver, but that kind of stuff goes on.

How does Operation USA work?

In most cases we look for partners, from U.N. agencies to small, in-country NGOs.

One of our all-time bests is in Jacmel, Haiti, where for $1 million we built a public primary school which has 1,000 kids, no fees, and is a center of community activities, with free architecture from L.A.-based Gensler, money from Honeywell Corp.’s foundation and quake-proofing engineering from Sacramento-based Miyamoto; 100% Haitian-built. Another is a seniors center in Ofunato, Japan, for abandoned seniors in a small port mostly destroyed by the quake. [Again] free architecture, free engineering, free land, all from Japanese partners with money from Honeywell’s foundation.

We [ran] the first U.S. aid to Cambodia after the war, the first to Vietnam, to Ethiopia [in 1984]. Operation USA predates nearly all the major entertainment industry-driven causes by years. In 1980 we had a two-hour prime-time special on the Cambodian famine which featured Julie Andrews, Frank Sinatra, Michael Jackson, Jane Fonda and others.

I can’t say we are still unique, only that we were often the “only Indians in a cowboy town….”

DECADE OLD STRIP & CAVITY SEARCHES IN SF JAIL MAY GARNER COUNTY PAYOUT OF $450,000

Thirteen male and female plaintiffs appear about to receive $450,000 from San Francisco County for being subjected to strip and body cavity searches after being arrested on minor charges more than ten years ago.

The settlement, that has been recommended by the SF City Attorney, is interesting in light of the fact that, last spring the U.S. Supreme Courted ruled in a 5-4 decision that strip searches in the nation’s jails were perfectly constitutional, even absent any kind of probable cause.

However, in the case of the 13 San Francisco plaintiffs, there was some kind of cavity searche—either “visual” or…the more invasive kind—in addition to the strip search, hence the settlement offer.

When I spoke to an LASD spokesman, Sgt. Pena, he confirmed that, yes, strip searches in LA County Jail are indeed standard operating procedure, regardless of why one has landed in lock-up. But real cavity searches require the okay of a judge, just as one would need for a search warrant.

KCBS San Francisco also reports on the upcoming settlement.

STAR WITNESS FOR PRO-PROP 8 IN CALIFORNIA COURT NOW WANTS A GAY-STRAIGHT COALITION TO STRENGTHEN MARRIAGE (OKAY. THAT WORKS.)

Mark Oppenheimer has the story in Wednesday’s New York Times. Here’s a clip:

David Blankenhorn, a traditional-marriage advocate and star witness in the Proposition 8 trial in California in 2010, shocked his allies with an Op-Ed article in The New York Times last June announcing that he was quitting the fight against same-sex marriage. “Instead of fighting gay marriage,” Mr. Blankenhorn wrote, “I’d like to help build new coalitions bringing together gays who want to strengthen marriage with straight people who want to do the same.”

He is about to find out how much support such a coalition can get.

On Thursday, Mr. Blankenhorn’s research group, the Institute for American Values in New York, plans to issue “A Call for a New Conversation on Marriage,” a tract renouncing the culture war that he was once part of, in favor of a different pro-marriage agenda. The proposed conversation will try to bring together gay men and lesbians who want to strengthen marriage with heterosexuals who want to do the same.

The document is signed by 74 well-known activists, writers and scholars, on the left and the right, including the conservative John Podhoretz, editor of Commentary magazine; John Corvino, a gay philosopher; Robert N. Bellah, a sociologist; Caitlin Flanagan, a social critic; and Glenn C. Loury, an economist — once conservative, now less so.

“While the nation’s attention is riveted by a debate about whether a small proportion of our fellow citizens (gays and lesbians) should be allowed to marry,” the statement reads, “marriage is rapidly dividing along class lines, splitting the country that it used to unite.”

IMMIGRATION REFORM AND THE PROBLEM OF MISINFORMATION

Marcos Breton at the Sacramento Bee speaks rather plainly about the fact that much of the split among Americans on immigration reform has mostly to do with misinformation.

Here’s a clip:

As President Barack Obama gave the most important speech on immigration reform in years on Tuesday, it became clear that his greatest foe is not the Republican Party on this terribly divisive issue.

It’s misinformation.

There is so much we think we know about immigration that is wrong. Some don’t want to know the real truth or seem addicted to having little brown people to blame for all of America’s woes.

What’s more American than one group dumping on another?

For most of my 50 years, the punching bags of choice have been people with roots in Mexico…

There is a lot of news that is worth your attention this week: a significant new report with implications about California’s probationers and parolees...some action on LA County probation’s use of solitary confinement for kids…additional LASD news….and more. But we’ll get to those issues tomorrow, and in coming days.

Today we are pausing to focus on Monday’s inauguration as it relates to a couple of the social justice topics that we discuss here at WitnessLA.

With that in mind, here are some stories, essays, and op eds that attempt to decode the import of the president’s speech, specifically, and the inauguration, in general:

(Here’s the text of Obama’s inaugural address, in case you need it for reference.)

AMERICA’S MOST IMPORTANT GAY RIGHTS SPEECH?

Well, Richard Socarides of the New Yorker thinks so, and makes his case.

Here’s a clip from his essay:

No one anticipated it, but President Barack Obama used the occasion of his second Inaugural Address to give what was perhaps the most important gay-rights speech in American history. Inaugural Addresses are, by their definition, important and defining occasions, when Presidents set the tone and direction for the coming four years. President Obama used the occasion to make the first direct reference to gay-rights in an Inaugural Address, and he did so with a power and forthrightness we have not heard before, even from him.

About two-thirds of the way into the speech, Obama referred to Stonewall, a gay bar where, in 1969, a police raid provoked a riot, in the same sentence as Seneca Falls and Selma—thus comparing the women’s and African-American civil-rights movements to the gay-rights struggle. Had he stopped there, it would have been historic—particularly coming from the first African-American President—but, in keeping with the tradition of politicians who refer to gay-rights obliquely or with code words, stopping short of directness.

But the President continued:

Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law—for if we are truly created equal, then surely the love we commit to one another must be equal as well.

Not only was this a call to end discrimination, but an unambiguous argument for the recognition of same-sex marriage across the country. For a President who announced his support for marriage equality less than a year ago, after more reluctance (and suggestions about what could be left to the states) than many would have liked, this was a bold declaration….

THE DIFFERENCE FOUR YEARS MAKES

NY Times columnist, Frank Bruni, comments on the difference between Obama’s first inauguration and Monday’s when it comes to gay rights. Here’s a clip:

Seneca Falls, Selma, Stonewall. The alliteration of that litany made it seem obvious and inevitable, a bit of poetry just there for the taking. Just waiting to happen.

But it has waited a long time. And President Obama’s use of it in his speech on Monday — his grouping of those three places and moments in one grand and musical sentence — was bold and beautiful and something to hear. It spoke volumes about the progress that gay Americans have made over the four years between his first inauguration and this one, his second. It also spoke volumes about the progress that continues to elude us.

“We, the people, declare today that the most evident of truths — that all of us are created equal — is the star that guides us still, just as it guided our forebears through Seneca Falls and Selma and Stonewall,” the president said, taking a rapt country on a riveting trip to key theaters in the struggle for liberty and justice for all.

Seneca Falls is a New York town where, in 1848, the women’s suffrage movement gathered momentum. Selma is an Alabama city where, in 1965, marchers amassed, blood was shed and the Rev. Dr. Martin Luther King Jr. stood his ground against the unconscionable oppression of black Americans.

And Stonewall? This was the surprise inclusion, separating Obama’s oratory and presidency from his predecessors’ diction and deeds. It alludes to a gay bar in Manhattan that, in 1969, was raided by police, who subjected patrons to a bullying they knew too well. After the raid came riots, and after the riots came a more determined quest by L.G.B.T. Americans for the dignity they had long been denied.

The causes of gay Americans and black Americans haven’t always existed in perfect harmony, and that context is critical for appreciating Obama’s reference to Stonewall alongside Selma. Blacks have sometimes questioned gays’ use of “civil rights” to describe their own movement, and have noted that the historical experiences of the two groups aren’t at all identical. Obama moved beyond that, focusing on the shared aspirations of all minorities. It was a big-hearted, deliberate, compelling decision.

He went on, seconds later, to explicitly mention “gay” Americans, saying a word never before uttered in inaugural remarks. What shocked me most about that was how un-shocking it was.

OKAY, THAT’S ALL VERY NICE, BUT DOES IT SIGNAL A CONCRETE POLICY SHIFT THAT WILL RESULT IN ACTION?

In this LA Times Op Ed, Ken Dilanian and David G. Savage of the paper’s Washington Bureau, discuss the possible policy shifts the speech suggests—particularly when it comes to the stand the administration may or may not take with regard to the gay rights matters coming soon before the Supreme Court. Here’s a clip from their story:

“….Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law,” he continued, “for if we are truly created equal, then surely the love we commit to one another must be equal as well.”

The passage “was definitely one of those moments that took your breath away,” said Adam DeRosa, president of the Lesbian and Gay Band Assn., whose 215 members later marched past the president in the inaugural parade. “We understand the historical significance of it. What political significance it has remains to be seen.”

Obama, who only last spring hesitated to declare his public support for gay marriage, soon will have to decide whether his administration will take the potentially huge step of arguing before the Supreme Court that gay marriage is an equal right under the Constitution.

The court will soon review two cases, one of them involving California’s Proposition 8, the ballot measure that limited marriage to unions between a man and a woman. Gay rights lawyers have asked the Supreme Court to declare the ballot measure unconstitutional, potentially striking down the laws of 41 states.

To several legal scholars, Obama’s equating of Selma and Stonewall strongly implied he is prepared to side with gay rights activists. But doing so would mark a sudden departure from the caution with which he has typically approached most issues….

[SNIP]

Theodore Olson, the former George W. Bush administration solicitor general and lawyer for the gay couples challenging Proposition 8, said the president sounded ready to back a constitutional right to gay marriage.

“I was very gratified to hear the president state in clear and unambiguous language that our gay and lesbian citizens must be treated equally under the law,” Olson said, “and that their loving relationships must be treated equally as well. That can only mean one thing: equality under the Constitution.”

Evan Wolfson, president and founder of New York-based Freedom to Marry, noted in an interview that Obama’s speech “was an inaugural address, not a legal brief, and we will see over the next several weeks exactly what positions the Justice Department takes.”

“I am confident the president knows that the Constitution requires equality in the freedom to marry,” he added…

AND, WHILE ON THE SUBJECT OF ACTION, WHAT’S WITH THE PREZ’S INACTION ON CLEMENCY?

“We do not believe that in this country, freedom is reserved for the lucky, or happiness for the few.”

Doug Berman over at Sentencing, Law and Policy wants to know if Obama’s clemency record will match his inaugural rhetoric.

Here’s a clip:

Blogging four years ago during the last day in which a US President took the oath of office, I commented in this post about the tendency of chief executives to invoke great rhetoric and wax poetic about freedom and liberty in America despite our country’s recent record of locking up a record number of persons in jails and prisons. I also asked in this follow-up post on the same day whether it was too early to start demanding President Obama use his clemency power to live up to our country’s traditional commitment to personal freedom and liberty.

Sadly, as P.S. Ruckman effectively documents and highlights in this new post, President Obama’s first-term record on the clemency front is at once disgraceful and disgusting:

Barack Obama’s first term has come to an end and we are now ready to report that his four-years as president represent the least merciful term for any modern president (Democrat or Republican) and, quite possibly, the least merciful in the entire history of the United States (see footnote below).

This is, of course, an incredible distinction for a president who repeatedly notes that America is a place where people get “second chances,” from a president who complained bitterly about overly-harsh sentences given to criminal defendants simply because they were African-American, and from a president who promised us “hope and change.”

AND TWO MORE OPINIONS ON WHETHER OR NOT THE RHETORIC WILL TRANSLATE INTO ACTION

The Atlantic’s James Fallows points out that, in addition to the significance of the paragraphs in the president’s speech on gay rights, gender equality, et al, the other significant section is the one that comes earlier in the speech, and contains this:

“For history tells us that while these truths may be self-evident, they’ve never been self-executing; that while freedom is a gift from God, it must be secured by His people here on Earth. The patriots of 1776 did not fight to replace the tyranny of a king with the privileges of a few or the rule of a mob. They gave to us a republic, a government of, and by, and for the people, entrusting each generation to keep safe our founding creed.”

In other words, for whatever it is worth, POTUS intends the speech as more than rhetorical; it is a specific call to action.

Fallows says he has ” no illusion, delusion, allusion, or even dog-whistle conceptions that this speech will change the partisan power-balance affecting passage of anything Obama mentioned, from climate legislation to reforming immigration law.”

And yet, Fallows’ colleague Ta-Nehisi Coates suggests in his reflections on the speech:

Obama’s speech is different. To some extent it exposes people to new ideas. But to a greater extent, perhaps, it shows how movements which only a few years ago were thought to be on the run have, in at least one major party, carried the day. This is not a small thing.

For details, one presumes we should stay tuned for the State of the Union address in February.

AND NOW….back to our regularly scheduled programming

PS: While Beyonce and the others were wonderful to see and hear at the inauguration, for me it was that lovely, unnamed soprano who—along with the Brooklyn Tabernacle Choir surrounding her—truly blew the doors off the joint.