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Waiting 4 SCOTUS On Prop. 8 & DOMA…..Oakland Commits to Ambitious School Reform……2 Sad & Notable Deaths…

June 20th, 2013 by Celeste Fremon


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…

And… find out the rest of the juicy gossip and mad speculation, you’ll have to click over to the New Republic.

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.


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 million to 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.


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.”

Robin Abcarian at the LA Times has a good essay on Hastings titled “The Importance of Not Following the Rules.” Indeed.


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.

Posted in American voices, Civil Liberties, Civil Rights, Education, How Appealing, LGBT, Life in general, School to Prison Pipeline, Supreme Court, writers and writing, Zero Tolerance and School Discipline | 1 Comment »

Breakdown on Monday’s SCOTUS Rulings, and CA Prison Overcrowding Increasing…plus Motion for DCFS Blue Ribbon Commission

June 18th, 2013 by Taylor Walker

The Supreme Court, nearing the end of the 2012 term, delivered several notable decisions on Monday.


In a 5-4 split ruling, the Supreme Court held that a defendant’s silence before being read his or her Miranda rights can be used against them in court.

AP’s Jessie J. Holland has the story. Here’s a clip:

The 5-4 ruling comes in the case of Genovevo Salinas, who was convicted of a 1992 murder. During police questioning, and before he was arrested or read his Miranda rights, Salinas answered some questions but did not answer when asked if a shotgun he had access to would match up with the murder weapon.

Prosecutors in Texas used his silence on that question in convicting him of murder, saying it helped demonstrate his guilt. Salinas appealed, saying his Fifth Amendment rights to stay silent should have kept lawyers from using his silence against him in court. Texas courts disagreed, saying pre-Miranda silence is not protected by the Constitution.

The high court upheld that decision.

The Fifth Amendment protects Americans against forced self-incrimination, with the Supreme Court saying that prosecutors cannot comment on a defendant’s refusal to testify at trial. The courts have expanded that right to answering questions in police custody, with police required to tell people under arrest they have a right to remain silent without it being used in court.

Prosecutors argued that since Salinas was answering some questions — therefore not invoking his right to silence — and since he wasn’t under arrest and wasn’t compelled to speak, his silence on the incriminating question doesn’t get constitutional protection.


In a second 5-4 ruling, the Supreme Court said that any finding of fact in a case that might increase the mandatory minimum sentence should not be determined by a judge, but instead, submitted to the jury for final say.

The Christian Science Monitor’s Warren Richey has the story. Here’s a clip:

The decision marks an important affirmation of the Sixth Amendment right to a jury trial, while establishing a new rule for judges seeking to balance sentencing guidelines with their own judicial discretion.

In the 5-to-4 decision, the high court overturned two existing legal precedents from 1986 and 2002 that permitted judges to make such determinations themselves by a preponderance of the evidence.

In overturning those precedents, the majority justices said any fact that increases a defendant’s sentence – including a mandatory minimum sentence – must be submitted to a jury under the higher standard of proof of beyond a reasonable doubt.

(This is surprisingly complicated to summarize, so you might want to read the whole story.)


SCOTUS also struck down an Arizona voter registration law requiring voters to prove their citizenship—but it’s complicated.

UC Irvine Law Professor Richard L. Hasen clears up the confusion surrounding the high court’s decision in a post for the Daily Beast.

(More SCOTUS rulings are expected this Thursday.)


Gov. Jerry Brown’s monthly report to federal judges shows that CA’s prison crowding situation is slowly getting worse. Brown says he’s drafting a legislative strategy to get the population reduction closer to the number mandated by the court. (Last month, the governor’s office began the process to appeal the federal court order to the Supreme Court.)

LA Times’ Paige St. John has the story. Here are some clips:

In the state’s monthly progress report to federal judges, California acknowledges prison crowding has again begun to creep upward while Gov. Jerry Brown promises to seek legislative solutions “shortly.”

The state’s 33 prisons are now at more than 150% capacity, according to Monday’s report to the U.S. District courts. Three prisons — North Kern, the Central California Women’s Facility, and Wasco — are at or near 175% crowding.


For the second month in a row, Brown’s lawyers say the governor is “drafting legislative language” to take other steps to reduce crowding, including to keep more inmates in private prisons out of state, lease beds from county jails, and allow inmates who are elderly, medically frail or model prisoners to be released earlier.


Don’t forget that today—Tuesday— the LA County Board of Supervisors will consider a motion by Supervisor Mark Ridley-Thomas, cosponsored by Sup. Mike Antonovich, to create a Blue Ribbon Comission on Child Protection, in order to get to the bottom of why LA’s foster care system is still so disasterously dysfuntional.

(Here’s our earlier story on the motion.)

Posted in Edmund G. Brown, Jr. (Jerry), Realignment, Sentencing, Supreme Court | No Comments »

Press Opinions on McDonnell/Baca, Compelling Arguments for Juvenile Justice Reform…and More

June 14th, 2013 by Taylor Walker


Tuesday evening, Long Beach Chief of Police Jim McDonnell announced that he would not be running against LASD Sheriff Baca as expected. In the days since, various newspapers have expressed their disappointment that the Sheriff’s biggest competition will be backing out of the race.

Here’s one lamentation from LA Times’ editorial boardmember Sandra Hernandez. Here’s a clip:

Now he says he won’t run for sheriff because it would require too much time spent on fundraising and politicking. His decision, while understandable, is disappointing for many reasons. McDonnell is a well-respected cop who recently served on the county commission that criticized Baca’s management of the jails.

And here’s a clip from a similarly themed Long Beach Press-Telegram editorial:

Well, that’s disappointing. One of the most anticipated races of Southern California’s 2014 election season seems to have fallen apart with Long Beach Police Chief Jim McDonnell’s announcement that he won’t run for Los Angeles County sheriff.

That’s good for Long Beach, but not for the county at large. McDonnell is a smart, talented and highly respected police chief who would have brought welcome competition to the race.


The American Psychological Association’s Kerry Bolger, in a notable post for the APA blog “Psychology Benefits Society,” explains the enormous importance of reforming the US juvenile justice system.

Here are the first two reasons listed:

1. Overreliance on incarceration is unnecessary.

Many young people in juvenile correctional facilities are incarcerated for low-level and nonviolent offenses. In 2010, for example, of the 59,000 youths under age 18 confined in juvenile facilities in the U.S., only 1 in 4 was detained or committed for a serious violent offense. About 12,700 kids (1 in 5) were confined only for status offenses (such as truancy, curfew violation, or running away) or technical violations (such as failing to report to a parole officer).

A number of states have shifted their youth justice policies away from overreliance on incarceration, with no accompanying increase in juvenile crime.

2. Incarceration doesn’t reduce future crime.

Juvenile incarceration doesn’t reduce re-offending, but rather increases it, especially among youth with less-serious delinquency histories.

That’s no surprise, considering that youth in juvenile correctional facilities are exposed to more serious offenders and to widespread physical and sexual violence in confinement.

(Read the rest here.)


The Supreme Court did not issue rulings on the Defense of Marriage Act (DOMA), Prop 8, affirmative action, or the Voting Rights Act. The court will now likely make decisions on the highly anticipated gay marriage cases on June 26 or 27, at the very end of the court’s current term.

HuffPost’s Luke Johnson has a quick update on the cases (and an entertaining little video). Here’s a clip:

The court is first expected to make a decision on Fisher v. University of Texas, challenging the university’s affirmative action policy in college admissions. The justices then will likely rule on the constitutionality of Section 5 of the Voting Rights Act along with decisions on the Defense of Marriage Act and California’s gay marriage ban, Proposition 8.

Posted in juvenile justice, LASD, LGBT, Sheriff Lee Baca, Supreme Court | No Comments »

LA Foster Kids Graduate, SCOTUS Rules on Sentencing Guidelines…and More

June 11th, 2013 by Taylor Walker


LA County Supervisor Gloria Molina held a celebration before last week’s board meeting to honor the high school graduation of forty-eight foster youths participating in the Foster Youth Education Program. Educational outcomes for foster youth have traditionally been extremely grim, making programs like this one immensely important (as illustrated in this study).

Here’s a clip from Molina’s announcement:

“Being part of the educational journey of these amazing kids truly motivates all of us to continue to advocate on their behalf,” Molina said. “And the positive results speak volumes.”

Molina’s program – which went countywide last year – requires intensive collaboration particularly between school district staff and DCFS social workers, who check students’ grades weekly; secure tutoring sessions and transportation assistance; meet students’ summer school registration deadlines; schedule their SAT prep courses and exams well in advance; and plan college tours. They also ensure that any credits students earned at schools they previously attended are counted toward graduation. Social workers’ offices are located near the schools of the children they oversee – which helps them more effectively work with each student to craft an individualized case plan (in partnership with each child’s caregivers, biological parents, and school personnel).


The LA County Supes will likely be voting today on whether to cut ties with the troubled foster care contractor known as Teens Happy Homes. They are expected to have the three votes necessary to pass the motion to end the contract. We’ll keep you updated.


In a 5-4 decision, SCOTUS ruled on Monday that it’s unconstitutional to use new sentencing guidelines on old cases if they call for harsher punishment than the guidelines that were in effect when the crimes were committed.

SCOTUSblog’s Amy Howe has the story. Here’s a clip:

In this case, petitioner Marvin Peugh was convicted in federal court in 2009 on five counts of bank fraud for conduct that occurred in 1999 and 2000. Based on the sentence recommended in the current version of the U.S. Sentencing Guidelines, the district court sentenced him to seventy months in prison – a sentence that was almost twice as long as the one recommended in the version of the Sentencing Guidelines that was in effect when Peugh committed his crimes. Peugh argued that the Ex Post Facto Clause, which (among other things) prohibits the passage of laws that impose a greater punishment than the punishment in effect when the crime was committed, required the court to sentence him using the earlier version of the Guidelines, but both the federal trial court and the U.S. Court of Appeals for the Seventh Circuit rejected that argument.

This morning, in an opinion by Justice Sotomayor, the Court held that it does violate the Ex Post Facto Clause to sentence a defendant based on guidelines that were promulgated after he committed his crimes, when the new version provides a higher sentencing range than the version in place at the time of the offense.


Over the last month, the culture of abuse and neglect in correctional facilities in four states has been brought to public attention by lawyers, judges, and government investigators. 

In a sharply-worded essay, the Atlantic’s Andrew Cohen asks why the DOJ won’t investigate the same major problems within the federal prison system. 

Here’s a large opening clip:

It has been an extraordinary three weeks in the history of the American penal system, perhaps one of the darkest periods on record. In four states, from the Atlantic to the Mississippi, from the Gulf of Mexico to the Great Lakes, the systemic abuse and neglect of inmates, and especially mentally ill inmates, has been investigated, chronicled and disclosed in grim detail to the world by lawyers, government investigators and one federal judge. The conclusions are inescapable: In our zeal to dehumanize criminals we have allowed our prisons to become medieval places of unspeakable cruelty so far beyond constitutional norms that they are barely recognizable.

First, on May 22, the Civil Rights Division of the Justice Department released a report highlighting the unconstitutional conditions of a county prison in Florida. Then, on May 30th, the American Civil Liberties Union filed a federal lawsuit alleging atrocious conditions at a state prison in Mississippi. One day later, the feds again sounded out on behalf of inmates, this time against profound abuse and neglect at a Pennsylvania prison. Finally, last week, a federal judge issued an order describing the unconstitutional “brutality” of the prison in Orleans Parish, Louisiana.

There were many common themes in the reports. In each instance, the mistreatment of mentally ill inmates was highlighted. Prison officials have failed to provide a constitutional level of care in virtually every respect, from providing medication and treatment to protecting the men from committing suicide. In the Louisiana court order, one prison expert is quoted by the judge as describing an “extraordinary and horrific” situation with the prison there. In the Florida investigation, federal investigators noted that local prison officials “have elected to ignore obvious and serious systemic deficiencies” in the jail’s mental health services.

Taken together, these developments shed welcome light on some of the worst government abuses of our time and demonstrate vividly the need for enlightened policies and more human decency and accountability from prison officials. But these lawsuits and investigations and court orders also beg a critical question: If the feds are so concerned with the constitutional rights of mentally ill prisoners in state and local prisons, why is the Justice Department so unwilling to undertake an equally thorough review of the similarly dubious practices and policies now being forced upon mentally ill federal prisoners by the Bureau of Prisons?

This issue strikes close to home, both with the state of California and the County of Los Angeles.

Posted in DCFS, Foster Care, jail, Mental Illness, prison, Sentencing, Supreme Court | No Comments »

Issues with DCFS Stopping Family Services, Voluntary Isolation, and a SCOTUS DNA Swabbing Update

June 6th, 2013 by Taylor Walker

(Scroll down to the second section for the corresponding story.)


A community meeting was held in South LA last week to discuss the ramifications of the decision by the Department of Child and Family Services (DCFS) to drop what are known as “family preservation services” meant to keep kids out of the foster care system while providing troubled families help through various programs that allow them to get control of their lives while keeping kids safe.

Kelly Vassar has the story for Chronicle of Social Change. Here are some clips:

The coalition, angered by recent cuts of $14 million in cuts to family preservation services set to take effect in July, addressed three primary issues with the DCFS’ policies in SPA 6: detention strategies, dismantling the safety net, and the dismantling of partnerships that had been developed during a county-wide effort to bring down the numbers of children entering foster care.

“At our last snap shot, which was through April, we had 27,188 children under our courts’ jurisdiction,” stated Judge Nash, while reading from a report for the county’s judges. “Are there any services that will allow the child to safely remain in the home? We must force DCFS to answer this question in each and every case.”


The $14 million cut to the family preservation fund for high-risk DCFS families also concerns the SPA 6 coalition, because reduced funding for family prevention strategies means the number of child detentions in South L.A. might escalate.

Indeed, as Nash pointed out, it already has.

David Green, president of the local 721 Service Employees International Union (SEIU), discussed ways to best serve the children of South L.A., he observed the “detain first, ask questions later mentality” was the not the best way to move forward.

Proponents of family preservation policies argue that reuniting families is a much more suitable priority than foster care, considering the poor life outcomes experienced by many foster children.

Obviously, family reunification requires rigorous risk assessment. We don’t want more dead kids at the hands of their families. Nor do we want more kids yanked away from parents that could’ve been helped to nurture their children. (And we don’t want them sent to frightening places like Teens Happy Homes, for that matter.)


Juvenile In-Justice Project photographer and advocate Richard Ross was given the opportunity to spend a day in an isolation cell at a juvenile detention facility last month. He documented his stay with a digital camera that snapped a photo every seven seconds during his twenty-four hour voluntary solitary confinement.

Wired’s Jakob Schiller has the story and photos. Here are some clips:

His incarceration started at 4:30 p.m. on May 3 and lasted until 5:00 p.m. the following day. During the entire time he had a digital camera and an intervalometer set up in the corner of the cell that took a picture every seven seconds as a way to record his stay.

Ross chose 24 hours because that’s the typical amount of time a juvenile offender spends in isolation at the facility when they’re first admitted. It’s not punishment for some aggressive or egregious behavior, just a matter of procedure while the bureaucracy “evaluates” them. Sometimes children are put in isolation because they are low-level offenders and should not be housed with the more serious offenders in the general population. Isolation can also be used for disciplinary action, however, and Ross has interviewed many kids who have spent weeks alone.

It was unbelievably dehumanizing [in the cell], and I’m an adult and I knew that I had 24 hours,” he says. “Then you have these kids who are used to sleeping in their beds, some of whom have never been away from home.”


“Humane” would not be how Ross described his experience in the cell. Instead, he says it was cold and designed to take away any sense of control. There was no clock in the room and someone else decided when the lights were on or off. The food was predictably terrible, the bed was unforgiving, and the only thing he was allowed to read was the Bible. To stay sane he sang “Ain’t No Mountain High Enough” because it reminded him of his wife.

As difficult as the experience was for Ross, he had it easy. It was on his terms. He knew when he was getting out. He had a nice hotel and dinner to go back to. He spoke with many kids who were scheduled for 24 hours but spent many days. One child in California had spent eight weeks.


In a delightfully smart essay for Slate, law professor Barry Friedman explains why both the majority and the dissenting justices are wrong about Maryland v. King, Monday’s ruling on the constitutionality of DNA swabbing upon arrest for serious crimes.

Here’s an unusually large clip (and we hope Slate will forgive us), but we wanted to show you how great Friedman’s reasoning is (and definitely go read the whole thing):

What the justices seem to see only through a glass darkly is that there are two very different kinds of searches, reflecting two different kinds of policing. There are investigative searches, and there are regulatory searches. The first kind are what you see on television, like on The Closer when Brenda Leigh Johnson tries to catch a bad guy who has committed or is about to commit a crime. The second kind includes airport security or drunk driving roadblocks—or even searching arrested people for weapons. These searches aim not to catch criminals, but to deter bad things from happening in the first place. Sure, we want to find the person getting on a plane with a gun. But the real reason for airport security is to deter people from bringing weapons to airports in the first place.

The categories matter because until you see them you can’t understand what the Fourth Amendment’s protection against unreasonable search and seizure offers in each situation. Justice Scalia was right that the Fourth Amendment is categorical in requiring that the police must have a good reason before conducting investigative searches. These searches target a specific person for a specific crime, and before the government can single you out from the crowd for its special, loving attention, it has to have reason to believe you deserve to be the lucky winner. That’s probable cause.

If you think about it for all of a nanosecond, though, it makes zero sense to talk about “probable cause” as a protection against regulatory, deterrent searches. We don’t have any reason to think anyone in the airport security line did anything wrong. But does that mean airport security is unconstitutional? Surely not!

The Constitution does offer protection from invalid regulatory searches, though, in two ways. The first is generality: Search everyone, and there is a good chance the courts should uphold it. If Congress decided that everyone in the country, members of Congress included, should be in the DNA databank, lawmakers are more likely to have a good reason than if they only go after a politically vulnerable group like people who are arrested. (And yes, the chance of universal DNA collection actually getting adopted by Congress resembles that of the proverbial snowball surviving in Hades, demonstrating how general applicability is a good political check on government intrusiveness.)

The second protection is “cause,” but of a specific and heightened sort: The rule should be that the government must have a really, really good reason to subject a particular group to a regulatory search—for example to collect DNA from arrestees rather than from everyone.

Posted in DCFS, DNA, Foster Care, juvenile justice, mental health, Supreme Court | No Comments »

SCOTUS Sez OK to DNA Swab at Arrest, Scalia Protests….Crime in Schools Down, Bullying Not….Juvie Justice Reform in Nebraska

June 4th, 2013 by Celeste Fremon

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.

Here’s a clip from Joan Biskupic’s story for Reuters on Scalia’s dissent :

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…..

And here’s a clip from Adam Liptak’s more general story on the decision for the NY Times:

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.

PS: For this one brief and shining moment, the ACLU agrees with Scalia, and name checks him in their post ruling statement.


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.

Take a look at the numbers and charts for yourself.


Although, nationally, juvenile incarceration is dropping, Nebraska had an 8 percent rise between 1997 and 2010, according to the Annie E. Casey Foundation analysis released this year.

But now the state has taken a significant step in the direction of turning that trend around, according to a story by James Swift of the Juvenile Justice Exchange.

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.

Posted in Civil Liberties, Civil Rights, Education, Human rights, juvenile justice, law enforcement, Supreme Court, Youth at Risk, Zero Tolerance and School Discipline | No Comments »

Juvenile Solitary in CA, Gov. Brown’s Office Appeals Prison Pop. Order…and More

May 14th, 2013 by Taylor Walker


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.


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.


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.


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.

Posted in Edmund G. Brown, Jr. (Jerry), Innocence, juvenile justice, LGBT, prison, Supreme Court, Uncategorized | 6 Comments »

$1.1 Million Judgement for LASD Shooting With or Without “Malice”……People are Dying Like Crazy in SD Jails….and The Power of Justice Ruth

March 29th, 2013 by Celeste Fremon


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.


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.


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).

Posted in jail, LA County Jail, LASD, law enforcement, LGBT, Supreme Court | 11 Comments »

Prop 8 Arguments: Is Gay Marriage Younger than Cell Phones? What About the Children? Should Post-Menopausal Women Be Allowed to Marry….and Other Pressing Questions (Plus a New Big LAPD Settlement)

March 27th, 2013 by Celeste Fremon


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.


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—


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???!)


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, 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.


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….


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.

Posted in Charlie Beck, Civil Liberties, Civil Rights, LAPD, LGBT, Supreme Court | 2 Comments »

Is the Right to Counsel Becoming a Myth? ….R.I.P. Anthony Lewis….Prepping for the Supremes & Prop 8, et al

March 26th, 2013 by Celeste Fremon


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.”

“Um, he what??” I asked. “Why did he say that?”

“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.


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.)


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….


A few stories for your reading pleasure:


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:


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

Posted in Civil Liberties, Civil Rights, crime and punishment, LGBT, Life in general, Supreme Court, writers and writing | No Comments »

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