Out of court

Friday, January 10, 2014

Law of the Land

     One of the reasons I love to travel is that I learn a lot about other people and places.  A Zimbabwean guide I met in Africa had a mantra he repeated to us: "learning and discovery."  Just two months ago I spent a month in Australia and learned some of their history.  It bears an uncanny resemblence to American history, especially regarding natives who lived there before the Europeans arrived.

     Australia's aborigines are thought to have lived on that continent for as long as 60,000 years.  Their artwork is phenomenal and is the oldest continuous art tradition in the world.  Here is one such rock painting depicting lightning man:

     They adapted to a harsh, dry enviroment and employed nearly every plant and animal for food, medicine or tools.  Over time, hundreds of original clans had specific territories.  There were many languages as well, many of them now lost.  (see http://www.healthinfonet.ecu.edu.au/map-aboriginal-australia for a map done in 1996 of the language groups' territories.) 

     Yet when Captain Cook 'claimed' Australia in 1770 and the English later used it as a penal colony starting in 1788, the land was sparsely populated.   That along with sheer imperialism led to a legal concept known as ' terra nullius'--land owned by no one.  This justified an entire continent's theft.  Sound familiar?

    Just like our own Native Americans, Australian Aboriginal customs of land ownership were more tribal or clan-oriented.  Their concept of land ownership was ancestral, spiritual and respectful.  They neither had a written language nor a history evolving from feudal land rights.  And sadly, they did not have the weaponry to defend it.  As a result, the Aboriginals' lands were taken; their rights ignored; and their basic humanity denied.  There were lost generations of Aborigines who were taken from their parents and raised 'white.'  (The 2012 movie "The Sapphires" tells one such story.)

       Not until 1962 were Aboriginals given the right to vote and in 1967, they were counted in the census.  But even in the 1970's, the courts still declined to overrule the medieval 'terra nullius' doctrine.  This tragic history is well captured in Thomas Keneally's book, "The Chant of Jimmy Blacksmith," also a movie.  Finally, in 1992, in Mabo v Queensland the High Court of Australia struck down this insidious rule.  It is not easy for Aboriginals to re-claim their ancestral lands but at least the law permits it now. 

     We visited Kakadu Park, which is east of Darwin in the top end of Australia.  We floated on the yellow waters of the misnamed Alligator River watershed (blame a Yank for that one.)  The park is now Aboriginal owned and one of our river guides is one.  She told us how many of the birds, fish and crocodiles were eaten or used by her people.  Later, we camped in the desert lands surrounding Uluru (aka Ayers Rock) and walked with an Abo guide who explained the medicinal value of the seemingly dry and useless plants on her land, values scientists are only slowly studying.

     'Learning and discovery:'  It is a good thing that the legal rights and ancestral knowledge of the First Peoples of our planet are on the rebound.

Monday, June 17, 2013

Peruvian Boot Caper

     My wife and I just returned from a fantastic 17 day trip to Peru, including the Amazon basin and high Andes mountains sites.  Machu Picchu lived up to its reputation for its high plateau setting, its variable lighting and the stunning stone work of the Incan city and terraces there.

     When we came back to Lima from the Amazon part of the trip, our group of 16 rode a bus to the national history museum.  At the museum, our guide encouraged us to leave all of our backpacks and other property on the bus, since it would be safe.  We did as instructed.  Upon our return, they had switched buses.  Our backpacks and property were all piled in the front seat of the new bus.  Except that Dana's boots were missing.  She had changed into sandals at the museum and left her brand new Merrill boots and custom made inserts near her backpack.  We notified the guides about this.

    The new bus and its cargo hold were thoroughly searched to no avail.  Dana was questioned about whether she may have left her boots back in the Amazon.   Despite our certainty that they were on the bus, our trip leader set a search of our previous lodges in motion.  At some point the blame game began.  Our trip leader-guide implied that the local Lima guide who encouraged us to leave things behind on the bus should have warned us about the bus switch.  But later we found out that he might not have been warned about the bus switch.  Even so, the local Lima guide initially denied encouraging us to leave things behind.  Later he apologized to Dana but I don't think he actually accepted any responsibility.  The next day our trip leader told us that the bus company is not supposed to do any property handling or transfer without a guide present.  So now the bus company was to blame.  Later we learned that the driver of the first bus denied any knowledge of the boots and was ultimately fired.

     I told the trip leader that from our point of view the travel group--Overseas Adventure Travel (OAT) should just let us know that they are taking responsiblity for the loss and ultimate restitution for the missing boots and inserts.  No such statement was made but the trip leader spent many hours on the phone tracking down every possibility.  Coincidentally we had travel insurance with OAT, which they suggested we file a claim under.

     Before we left Lima, our trip leader took Dana to the local cop shop to make a report.  There was one high ranking officer (male) and a female tourist police officer.  They only spoke Spanish and Dana did not understand them.  They had one internet connection between their two computers and they had to keep plugging and unplugging each computer to do their work.  After over an hour, they produced a typewritten report in Spanish.  It was never fully translated for Dana, but she felt compelled to sign it.  It turned out that it stated that the boots were in a black daypack (which was untrue.)  The trip leader insisted on this unnecessary fiction to make sure the Peruvian police took it seriously (as if it would solve the problem.)  Why we never knew. 

     One thing is for sure: The Peruvian police and our trip leader spent a heckuva lot of time on this without any resolution, except that a bus driver lost his job.  If this had occurred in the U.S., the police might have spent 15 minutes on a report and filed it away.  Without proof, though, no one would have been fired here.  We theorized that the boots might have been dropped in the transfer and lost.  Or that the bus driver stole them, or that he accidentally left the bus unlocked and someone else stole them.  Theories but not answers.  Now we have to file an insurance claim.  In the end, a minor mishap, and an insight into the strange methodology of the Peruvian police in an otherwise magnificent trip.

Wednesday, April 17, 2013


     This motto of TV news can often drive the criminal justice system.  Seattle recently has had several horrific DUI (alleged) accidents in which innocent people were killed.  Within just a few weeks, our new Governor and the Legislature--a bipartisan group, no less--are proposing stiffer new penalties and restrictions for driving under the influence.  Obviously they are reacting to the news.  Nothing unites liberal and conservative politicians more than an easy target which has no constituency.  Well, maybe the restaurant/bar and liquor lobby...but they won't object as long as it doesn't dent their wallets.  The Legislature will have to hurry, as the regular session expires on April 28.  That does not bode well for a thoughtful new law.

     So the easiest political solution is to increase the penalties--more jail, which is what is proposed for second and third DUI's.  A second DUI will have a 6 month mandatory sentence or time on a transdermal device.  This device is an ankle bracelet that measures the alcohol exuded in one's sweat and then electronically sends a signal to the supervising company.  Sentinel Offender Services is the company Seattle Municipal Court uses.  These devices cost the defendant about $11 per day, which for a six month period would cost nearly $2000.  Now most arrestees do not have that kind of  scratch at hand, so either a city or county will pay (doubtful) or jail will be the only alternative--also a taxpayer expense. 

     This expense is over and above the mandatory fines and assessments which for a second offender are around $1,500, not to mention the high risk insurance, the ignition interlock device ($70-100 per month) and the cost of alcohol treatment.  All but the well off DUI offender will be in debt for a second offense.  For a third DUI, the mandatory time of a year is the proposed penalty, which also is the maximum penalty.  This means there will be no incentive to plead and more trials (expense) will ensue.

     The proposal for first offenders is a criminal filing within 48 hours and no release of the offending vehicle until an ignition interlock device is installed.  With 38,000 new DUI arrests in Washington each year, this poses a challenge to financially strapped city and county prosecutors.  Even Seattle Municipal court which files much faster than King County normally does not file within 48 hours.  As of 2013, in King County, which files the most DUI's of any jurisdiction in the state, there is about a 60 day lag between routine DUI arrests and the first appearance in court.   Shortening this time up will take a few more deputies at a minimum.  If booking in the jail is required after every DUI arrest, the cost to the counties and the prosecutor's offices may not be within their current budgets. 

     As for the imposition of interlock devices before release of the vehicle, there is a due process problem.  Without time for a court or administrative body to provide a meaningful hearing on whether the arrest and/or seizure of the vehicle is legal, it may not withstand a constitutional challenge.  More significant is the right of an innocent owner of the vehicle, such a spouse or a parent.  Will they be deprived of a ride to work or school for the sins of another?

     Finally, the most radical proposal is the ten year ban on alcohol for third timers.  This prohibition would be enforced by creating a special driver’s license and requiring bars, restaurants and liquor stores to card everybody, regardless of age.  Here is where the restaurant/bar and liquor lobby may object. For they would become drink cops making sure everyone at the table is allowed to drink!  What if the prohibited husband is caught taking a taste of his wife's wine?  Will he be booted from the restaurant?  And will she go down as an accomplice?

     Will any of this work?  Will this decrease alcohol related accidents--the ultimate purpose of all this lawmaking?  Isn't our drive and drink culture at the root of this?  For starters we know that these new laws will cost the taxpayers more money.  One proposal is to re-up the beer tax.  Maybe Tim Eyman will propose an initiative to block that--wrecking more havoc on government programs and budgets. 

     As long as suburban restaurants (their prime profit maker) and country taverns serve alcohol, people will drink and drive.  In big cities, there are more taxis and public transit to turn to, but people still like the freedom of driving.  So I am skeptical that the proposed draconian penalties will quickly reduce alcohol related accident rate, as long as some drinking and driving are legal--which is the case.  How about a designated driver custom?  Every person or group at a bar, restaurant or tavern must have a designated driver, whether a taxi, bus or person in their party before alcohol can be served?  What would the  restaurant/bar and liquor lobby think of that?

Wednesday, February 20, 2013

Corruption is a Cancer

     I happened to be in Egypt touring about 2 months before the revolution in January 2011.  People often ask me if I noticed any sign of it coming.  Frankly few Egyptians would openly discuss their politics with an American tourist, other than some nicety about our current Prez.  However, one older taxicab driver did mention something that I now realize was a peek into an open sore there.  It happened when he told us to meet him in a certain location after we toured a mosque.  When he hastily pulled up, he told us to hurry up and get in his cab before the police came.  I asked him if that was due to traffic.  No, he replied, he did not like paying bribes to the police so normally they would not let him pick up or drop off passengers in that location.  He was angry about that and went on about how corrupt the police were and how it made life for him much tougher.  I didn't connect that complaint to the revolution until later when I learned of the Tunisian vendor who burned himself to death because he was harassed by the police for their bribes.  Corruption is what ignited the Arab Spring.

    Egypt is still in political turmoil due to the reigning party refusing to share power or respect minority rights, but I have no idea if there is less corruption.  What I do know is that in many societies corruption is endemic.  We were just in India last November and there corrupt police took bribes right before our eyes.  It happened in the holy city of Varanasi, which is on the Ganges River where people come from all over India to purify themselves in "Mother Ganga."  (To me the Ganges is filthy and polluted.  I wouldn't put my toes in it, but we saw people bathing in it and drinking it right next to holy cows that ambled past them in the shallows.)  Anyway, I was standing on a street corner about a mile from the riverfront and apparently the police were preventing most motor vehicles from entering this very congested street where the hordes descend to the water.  However, every now and then, a tuk-tuk driver (3-wheeled golf cart-like cab) would stop and hand a few bills or coins to the cop and drive into the so-called forbidden zone.  If I wanted, I could have waited and videotaped more transactions.

     This was minor corruption compared to what the high level politicians in India had going.  While in India, the India Times ran a story about the millions of dollars each and every ruling government coalition since independence from England in 1947 had scored from corruption--building contracts, payoffs, permit payments--you name it.  The justice system and police were especially corrupt.  This was well documented in a recent Pulitzer prize winning book--"Behind the Beautiful Forevers."  Reading like a novel, this book details the actual lives of some individuals living in the slums of Mumbai (aka Bombay).  Several family members in the book are falsely accused of murder and the family is literally forced to bribe police and judicial officers to prevent further injustice.  It is a book to make anyone angry.  Recently the rape and murder of a young woman which was ostensibly aided or at least overlooked by corrupt police made the news.  Whether it will lead to meaningful reforms is hard to say.

     Just scan the news and stories on corruption span the globe.  Consider the drug cartels in Latin America, or the national sport of tax evasion in Italy or Greece, or the near absolute power of industrialists in China and don't forget the Russian Mafia and its government which will punish its own un-adopted children to spite America.    

    Which leads to America.  Here, the police and judicial system is quite clean.  I grew up in Chicago where voting "early and often" were touted. It is no longer corrupt there but in many states there have been barriers erected to make it harder for some people to vote.  More significant is the corruption that unlimited campaign spending has caused.  It is complex but it is obvious that Congress is beholden to powerful interests and lobbies who donate to their campaigns freely.  Maybe a congressman cannot enrich himself personally but he can fatten his campaign budget by voting the right way.  After he retires from Congress he can work for one of his favorite lobbies or industries and then enrich himself.  This is corruption American style.  And it is slowly eroding our democratic ideals. 

    I doubt we will have an "Arab Spring" here but the power of money is perilous. 

Thursday, August 2, 2012

A Nation of Laws and Lawbreakers

It is commonly said that America is a nation of laws. There are so many different laws in America, starting with the U.S. and the 50 state Constitutions, the federal statutes written by Congress for over 200 years, the 50 states' individual codes, the innumerable city and county ordinances, that no one can come up with a number other than to say 'maybe a million or so.' So does that make us law abiding? Not necessarily.

Historically, we were founded by lawbreakers who rebelled against the tax and other restrictions England imposed on the colonies. The real Boston tea party players were criminals to the English but the first patriots to us. Since then we have a tradition of resistance to various laws. Recall the underground railroad for runaway slaves, or the rum runners in the 1920's. How many of us are here either because our ancestors were draft dodgers or entered America without permission of the government? In the 1960's, peace protesters broke the law and so did marijuana smokers in droves. Illegal drug usage is still happening on a large scale, despite severe punishments for the suppliers.

There are those who believe that all drugs should be legalized and which in theory would stop the crime that surrounds the drug business. Easier said than done. Should the government get into the business of dispensing these drugs, or should it be a regulated industry like alcohol? If legalized, then minors would have to be prohibited. Would that still lead to more crime? I know when my kids were minors, they could easily find some adult to make a straw purchase for them. There were bums who hung out by the liquor stores who filled in nicely. Legalizing, while resolving some issues, will open other cans of worms. In Amsterdam, the Dutch government is moving back toward more restrictions on who can use drugs, prohibiting drug sales to non-citizens. The purported reason: to get rid of the 'criminal industry' surrounding the freedom to use drugs.

As vexing as drug laws are, traffic laws are nearly infinite in their numbers. Yet two violations--speeding and drunk driving--are still commonplace. Just drive on the freeway and note the average speed can often be at least 10 miles per hour over the limit, unless highway patrol is visible. Of course if you travel in Europe, speeders are even more rampant; whereas, drunk diving is less common due to better public transportation and more draconian penalites.

In America, drunk driving has declined because of higher penalties and well publicized enforcement. But what about texting while driving--which may be nearly as dangerous as drunk driving? Everyone agrees that 'smart phones' are risky to drive while using, and yet. . .

What does it take to get people to hang up and drive? The same methods that have caused drunk driving to decline. Should we send those who text while driving to jail? If we want to stop the keystroke distraction, yes! Will we? You know the cell phone companies and other lobbies will fight it. If it happens, it will take time and more bad accidents to change these new habits.

Then there are environmental laws and regulations. Recently Seattle banned plastic grocery bags, as have other cities. Is this the right way to get people to stop creating indestructible acres of plastic garbage? Or does this just add more expense to rising food costs? Speaking of which, New York City's mayor is pushing a ban on large sodas. How far should the 'nanny state' go in protecting people from bad consumer choices. Would such a law like this spawn soda renegades who would get around the ban with clever 'soda structuring?' And is mandatory broccoli consumption the next step to legislating good nutrition?

It all reminds me of Dupont's infamous corporate tagline: "Better Things for Better Living...Through Chemistry." Now we might say: "Better Things for Better Living...Through Laws and Regulations." If we keep up the lawmaking, I suspect the lawbreaking traditions of this nation may be in for another great revival.

Friday, July 27, 2012

Why Juries Are Better Than Judges

     One of the beauties of our system of justice is that all citizens are eligible to decide the cases.  Unlike the European or continental system, the Anglo-American system puts a cross section of people on a panel to reach verdicts on civil and criminal cases.  Deciding whom to believe is central to the jury's role.   This is what juries do best.  The 12 members of a jury use their collective wisdom and experience to decide who is telling the truth.

     I just had a serious felony trial where the state called the alleged victim and a presumbly independent witness to say that my client committed an assault.  On our side, my client and a fellow co-worker testified to a totally different and innocent version of events.  The prosecutors hammered on the "independence" of one of their witnesses and tried to show how 'biased' my co-worker witness was.  Nonetheless, the jury  acquitted my client in well under an hour.

     Why?  Obviously they did not believe the state's witnesses and instead believed our witnesses.  One clear reason is that the alleged victim's manner while testifying was strange.  He clearly spoke English, but instead used an interpreter (which the jury saw through and became suspicious of.)  He refused to ever admit a mistake even when I confronted him with inconsistencies.  He testified that he was in the middle of the street some15 feet away from the pedestrian crosswalk at the time of the assault.  His written statement to the police the night of the incident said he was "in the crosswalk."  When I asked him about that difference, he insisted there was no inconsistency--that he meant 'near' the crosswalk in his statement--so as to reconcile the inconsistency.  When asked about other inconsistencies he attempted to explain them all rather than admit error.  In closing I argued that a liar can never admit a mistake.

    In contrast, my witnesses did not use interpreters, even though their English was far from perfect.  In this way, the jury would understand and hear their actual words and get a better feeling for them as people.  They also had a nice, likable manner in contrast with the alleged victim and the other 'independent' witness.  When confronted by the prosecutor with some inconsistencies, my witnesses did not get defensive but either conceded error or explained in a way that made sense.  It was all about how they were perceived by the jury.  This intangible, call it likability, made all the difference.

     Judges, on the other hand, have difficulty with the intangibles.  They tend to be more intellectual and make decisions without really discussing it with anyone else.  So their thinking is not shaped by other viewpoints and for that reason, can be narrow minded.  For political and other reasons, they have a real problem in disbelieving police officers.  In contrast, jurors are much better at scrutinizing police credibility. 

     Recently, I raised a Fourth Amendment issue, attacking the stop and seizure of my client in a case.  This type of motion is only heard by a judge who decides both the law and the credibility of the witnesses.  The police witnessses were adept at either not recalling key events or of being so certain of their observations that they were superficially credible.  I say superficially because they convinced the judge they were truthful.  One police officer was over-the-top in his perfect recall of a split second event and was way too much of a know-it-all and see-it-all witness.  And yet, the judge bought his version of events.  Despite my best effort, the judge refused to make certain inferences which would have made their testimony less credible.  Instead the judge just assumed that what they said was true without critically analyzing their version.

     Obviously I lost that motion and maybe I'm bitter.  But I do believe a jury would have had a much harder time believing the police and probably would have been more open to my arguments than the judge was.  It's on appeal now to a panel of appeals judges but not to a jury.  I can only hope they act more like a jury.

Tuesday, April 24, 2012

"Stand Your Ground"

     The 'stand your ground' law in the notorious case in Florida is not that different from Washington law. 

     In Florida, the law reads this way: "a person is justified in using deadly force (and does not have a duty to retreat) if he or she reasonably believes that such force is necessary to prevent the imminent commission of a forcible felony, or to prevent imminent death or great bodily harm to himself or herself or another."  [Florida Statute Section 776.012.]
"The use of deadly force is further justified when a person is resisting any attempt to murder such person or to commit any felony upon him or her or upon or in any dwelling house in which the person is located." [Florida Statutes Section 782.02]

    In Washington, if someone claims a killing was done in self defense, then the jury would be instructed this way: " It is a defense to a charge of murder that the homicide was justifiable as defined in this instruction. Homicide is justifiable when committed in the lawful defense of the slayer when:
     1) the slayer reasonably believed that the person slain intended to commit a felony or to inflict death or great personal injury;
     2) the slayer reasonably believed that there was imminent danger of such harm being accomplished; and
     3) the slayer employed such force and means as a reasonably prudent person would use under the same or similar conditions as they reasonably appeared to the slayer, taking into consideration all the facts and circumstances as they appeared to him, at the time of and prior to the incident.

     The State has the burden of proving beyond a reasonable doubt that the homicide was not justifiable. If you find that the State has not proved the absence of this defense beyond a reasonable doubt, it will be your duty to return a verdict of not guilty."  [Washington Pattern Instruction #16.02]

The jury would also be instructed: "It is lawful for a person who is in a place where that person has a right to be and who has reasonable grounds for believing that he is being attacked to stand his ground and defend against such attack by the use of lawful force. The law does not impose a duty to retreat."  [WPI # 16.08]  For many years this 'no duty to retreat' instruction was derisively referred to as 'the law of the Old West.'  Washington was one of many Western states that used this instruction.
The key ingredient in both Florida and Washington is the "reasonable belief."  To use the facts of the Trayvon Martin case, the state will have to convince the jury that Mr. Zimmerman's use of deadly force was not based on a reasonable belief.  Put another way, first, was he reasonable in following Martin after the 911 operator told him not to?  And more importantly, did Zimmerman reasonably believe that Trayvon Martin was about to kill him or commit a 'forcible felony' or cause great bodily harm?  Suppose that Zimmerman testifies that Martin punched him in the face or pushed him away, or even kicked him.  Is that sufficient for Zimmerman to reasonably believe Martin would kill him or cause great bodily harm?  Preventing a bloody nose or a black eye do not seem to be sufficiently threatening so as to justify deadly force, i.e., pulling out a gun and shooting.
I have had several murder trials where deadly force was used in a situation where some force would have been justifiable.  In one case, my client agreed to leave the bar and face a bully who was tormenting him.  They began a fistfight.  Then during the tussle, my client pulled a steak knife from his sock and began stabbing his opponent until the fight broke up.  The other man died of his wounds two weeks later.  Two juries heard this case (1st one reversed on appeal) and both convicted. 
Another case involved a client sleeping in his room.  His mother's boyfriend, a drunk and a bully, suddenly burst into the sleeper's room and began a fight.  My client pulled out a large kitchen knife he kept in his room and cut him more than a dozen times, killing him.  Some of the wounds were 'defensive'--to the hand and fingers, so a murder charge was filed.  The first jury voted 7-5 to acquit but could not reach a decision.  The re-trial jury convicted him of the lesser included offense of manslaughter.  And a third case involved a client who got into a fight near his home with his sister's ex-boyfriend.  When the ex-boyfriend began threatening to kill my client, he ran into his house got a .45 caliber gun and shot the ex-boyfriend from the front porch about 6-8 times.  The jury convicted him but said if he had only fired one time, they might have acquitted.
The similarity in the three cases is that the jury probably found that the force used was greater than necessary.  Washington law adds the requirement that the force be what a "reasonably prudent person" would use, but arguably the term "reasonable belief" in Florida can encompass that. 
The biggest difference may be the jury.  On the same facts, juries will differ in deciding what is "reasonable."  Stereotypically, in the South, or in rural areas, there is more tolerance for excessive force in self defense, but not always.  Another major factor in the Florida case will be Zimmerman's credibility and how he does on cross examination.  Since there are no other eyewitnesses, his version will largely be uncontested--except for the 911 calls.  A well prepared defendant will be advised to avoid contradicting those calls. 
In the end, the law that applies in Florida will not be that different from what is applied here in Washington.  Since the details of Zimmerman's story is not publicly known, there is no way to predict what the jury will do.  Whatever they do, it'll hit the fan hard.