Sign a petition and stand by your position.

Today the U.S. Supreme Court ruled that Washington's Public Disclosure Law does not violate the First Amendment rights of people who sign petitions to change the law. Doe v. Reed involved the referendum to repeal the law giving same-sex couples some of the same rights and benefits heterosexual couples get. That referendum was later rejected by 53% of the voters; i.e., the same-sex couples law was upheld..

Before that election when the referendum supporters had enough signatures to get the issue on the ballot, opponents of the referendum filed for disclosure of the names of the referendum signers. Under state law, the signers' names and addresses on successful petitions are considered state documents and subject to public disclosure. The signers objected, arguing their right to freedom of expression would be chilled by the potential for harassment for their position. A federal district judge in Tacoma agreed and issued an injunction barring release of the names. In an 8-1 decision the court reversed, and Chief Justice Roberts wrote: "disclosure requirements may burden the ability to speak, but they do not prevent anyone from speaking .."

Justice Sotomayor concurred with that reasoning: "for persons with the "civic courage" to participate in this process, the State’s decision to make accessible what they voluntarily place in the public sphere should not deter them from engaging in the expressive act of petition signing." Although the Court threw out the First Amendment challenge, it left open the possibility that the referendum signers might still prevent disclosure if they could qualify for an exemption under the Public Disclosure Law. As Justice Stevens in his concurring opinion noted: "there would have to be a significant threat of harassment directed at those who sign the petition that cannot be mitigated by law enforcement measures" for disclosure to be granted..

The referendum signers wanted to remain anonymous because they 'feared' harassment from the other side. I'm not sure that's what was really going on. I think they wanted to hide their biases and prejudices against same-sex couples from ridicule. Because their attempt to 'protect marriage' is narrow minded and stupid. The fact that some adults wish to spend their domestic, private lives with the same sex has no effect upon others who choose to spend their private lives with the opposite sex. The argument that a marriage's only purpose is to sanctify the procreation and raising of children is to miss the point of love and marriage. Just because only opposite sex marriages can result in biologicial children, it does not mean others should not enjoy marriage and have an equal right to the benefits the law confers. And in any event, I know many same sex couples who are much better parents than opposite sex couples..

Of greater concern is this notion of anonymity. In the era of the internet it is much easier to express opinions anonymously behind some username. That permits the most extreme, irresponsible positions, arguing nonsense such as death panels. The notion that anonymity is sacred is wrong. Even the supposed right to a secret ballot is not that old. As Justice Scalia pointed out: "Voting was public until 1888 when the States began to adopt the Australian secret ballot. . . We have acknowledged the existence of a First Amendment interest in voting, but we have never said that it includes the right to vote anonymously." Opinions about the public policy must be openly discussed. On this I agree with Justice Scalia when he writes: "For my part, I do not look forward to a society which campaigns anonymously and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.."

If you don't have the courage to stand by your convictions, then you shouldn't sign petitions or take positions that others can hear or read in any medium. Having to withstand criticism and defending your position is part of the process. Otherwise, there is no marketplace of ideas, but just a jeering crowd of anonymous hecklers and bigots..

Are the Police Getting More Violent?

The recent posting of the video of a police officer punching a 17 year old girl in the face revives this question. In that particular case, the officer was trying to control or handcuff another woman who allegedly jaywalked. The 17 year old intervened (even though you can see a male trying to pull her away from the confrontation) and began preventing the arrest of the other female. She was tussling with the officer when he punched her once in the face, which backed her off and allowed him to try to regain control of the person he wanted to arrest..

The first questions that come to my mind are: why was this patrol officer making a jaywalking arrest and couldn't he have used less force to gain control of the situation? Jaywalking is one of those offenses that officers can use to harass people or to see if they have warrants. On the other hand, this officer may always stop jaywalkers because it is an infraction. The fact is people should not openly break the law--even jaywalking--in front of police officers as it may challenge their authority. As to the force used, there may have been better ways to gain control of the situation, but most police officers do not tolerate disrepect or any disobedience. They will react to situtations that appear threatening to them, especially in light of all the violence directed toward the police lately..

Several other recent videos show police conduct that is far more violent and lawless. One was where the arrested man was cuffed and face down on the street and the police kicked and stomped him. He appeared helpless and the officer's insulting words involving Mexicans seemed to indicate an unlawful motive. The most egregious was the 15 year old girl who was beaten by an officer after she ostensibly disrespected him by lightly kicking her shoe at him. In these two cases the police clearly went over the line. Of course, years ago the Rodney King beating remains the most famous example of police violence. Do these instances reflect greater violence, or is it that more video cameras are just capturing what has always gone on? It's hard to say, but I have had plenty of clients tell me over the years about police violence..

Prosecutors have charged police with crimes in recent years for their excessive or unlawful use of force. In Everett, a police officer was tried for murder when a DUI suspect allegedly tried to leave the scene or run him over, depending on whose version was believed. The officer raised self defense and the jury acquitted him. Notably, the jury did not award him costs because they did not find by a preponderance of the evidence that he was using lawful force. Here in Seattle, the office who beat the 15 year old was tried for assault and also raised self defense. The first jury to hear that case hung. Reportedly, one juror held out against 11 others who voted to convict. That case will be re-tried. However, even where the video seems to prove the officer lost it and beat the girl, there are jurors who won't convict. But the mere fact that there have been several prosecutions lately makes me think that police violence could be on the uptick..

So returning to our 17 year old who was punched in the face, even if the officer used excessive force, what is to be done? To begin with, it will probably not be a defense to her potential charges of assault on the officer or for obstructing the arrest of the other woman. Generally, a person may use force to aid another in resisting an arrest by a police officer only if the person being arrested is in actual and imminent danger of serious injury from an officer's use of excessive force. The video does not show that the officer was using much force on the woman he was first trying to arrest. Similarly, a person being arrested has no right to resist even an unlawful arrest. They can only resist when there is actual and imminent danger of serious injury..

If a person is subject to an unlawful arrest, then the remedy is to sue the officer, not to resist the arrest. The 17 year old who was punched in the video may have a civil suit, although I doubt it will have much merit given that she had no right to intervene. On the other hand, the 15 year old who was beaten and the man face down on the street may have very good civil cases to pursue..

KEEP YOUR POLITICS AS FAR FROM JUDICIAL ELECTIONS AS POSSIBLE!

Traditionally American courts have been more independent from politics than the other two branches of government. This is so despite judges having to run for office in many states. Although in all federal courts and in some states judges are appointed, in a number of other states, such as Washington, judges at all levels—municipal on up to the state’s Supreme Court—are elected..

Over the years in Washington state, judges’ elections have become more expensive and a bit more political. Some of our Supreme Court races are shaping up to be more of a left v. right type than previously. On the other hand, voters tend not to be well informed about judges’ politics, so that candidates with common last names, such a Johnson, have been able to exploit that..

But that’s nothing compared to the threat to judicial independence that San Diego County in California went through recently. There, a slate of four Christian lawyers, who vowed to be God’s ambassadors, ran against four sitting and well-respected judges. This slate was backed by a group of pastors, gun enthusiasts, and opponents of abortion and same sex marriage. (Can anyone explain why gun lovers and devout Christians band together? Does the NRA contribute to churches?) Luckily, the voters of San Diego County saw through this assault on the judiciary and voted to keep their independent judges in office just this week..

This may not be the last we see of such electoral politics. Such tactics might succeed better in more rural counties or even in Spokane County, where such interest groups might see this as a way of electing judges more inclined to their way of thinking. And that’s what is most disturbing. I am avowed liberal, but I would oppose the ACLU putting together a slate of judges. As a lawyer, I don’t want to be in any judge’s court who appealed to any interest group’s ‘way of thinking..’

To be effective, fair and impartial, judges have to be open minded and not beholden to a special interest’s ‘way of thinking.’ Now that the U.S. Supreme Court has thrown out laws limiting how much corporations can give to political candidates, another threat is for a corporate slates of judges to emerge. What if Boeing or Microsoft put together such a slate? Their 'way of thinking' is mostly governed by dollars and cents. Imagine trying to get a fair trial if you sue them!

The only ‘way of thinking’ a judge must follow is to uphold the Constitution and to interpret the laws passed by the legislature and enforced by the executive. Perhaps I am being a bit unrealistic to think that judge's decisions are apolitical. Yet, if some other ‘way of thinking’ intruded, any decision by that judge would be suspect, and certainly not better..

Do You Have the Right to Remain Silent?

For many years in nearly all TV cop shows, the police read the Miranda warnings to the people they arrest. Despite the warnings, they talk. After all, it wouldn't make for very good TV if the suspects asserted their rights much. So usually they talk or provide absurd alibis or excuses that lead to the next scene. But in real life, after the police read the Miranda warnings ("You have the right to remain silent. Anything you say can be used against you . .") what does a person need to do to assert his or her rights? If they just remain silent, is that enough? Recently the U.S. Supreme Court ruled that refusing to talk is not a sufficient assertion of the right to remain silent..

It seems absurd. For what must a person do to exercise his right to remain silent beyond actually remaining silent? But lets look at the facts of the case--Berghuis v. Thompkins. The defendant, Van Thompkins, was arrested for murder at 1:30 p.m., taken to an 8x10 interrogation room and properly read all his Miranda rights. During the next three hours, Thompkins was mostly silent in the face of police questioning, answering some questions 'yes' or 'no' or nodding his head. At no time did he request a lawyer or say anything such as 'I wish to remain silent.' In the last 15 minutes, the police asked him: Do you believe in God?” He said “Yes,” as his eyes “welled up with tears.” Eventually he was asked, “Do you pray to God to forgive you for shooting that boy down?” He answered, "Yes." Which was all the prosecution needed..

Before the U.S. Supremes accepted this case, a federal Court of Appeals ruled that: “persistent silence for nearly three hours in response to questioning and repeated invitations to tell his side of the story offered a clear and unequivocal message to the officers" that he did not wish to waive his rights. Moreover, the police never asked for an express waiver of the Miranda rights. In a close 5-4 decision, the Supremes reversed, holding that: "Thompkins did not say that he wanted to remain silent or that he did not want to talk with the police. Had he made either of these simple, unambiguous statements, he would have invoked his ‘right to cut off questioning.’ Here he did neither, so he did not invoke his right to remain silent." The clear message is that an arrested person must say something such as, "I don't want to talk," or "I wish to remain silent." After such an assertion, then the law protects a person from repeated interrogation or other attempts to get around his constitutional rights..

Requesting a lawyer provides even more protection of the arrested person's rights. Unless and until the police get an attorney to the scene of the interrogation, they cannot resume questioning. Yet, with the Court's latest decision, the door to police persistence is further opened. The newest Justice--Sotomayor--writing the dissenting opinion, notes that the majority decision: "invites police to question a suspect at length—notwithstanding his persistent refusal to answer questions—in the hope of eventually obtaining a single inculpatory response." Silence alone, then, does not prevent the police from trying every interrogation trick in the book, from appealing to religion (as with Thompkins), or to motherhood, or perhaps using a ruse or a lie such as your pal says 'you did it..'

Our constitutional rights not to incriminate ourselves (5th Amendment) and to counsel (6th Amendment) are precious, but they do not protect us when they lie dormant. If you wish to assert your rights, you must say it. And you must say it loudly and in no uncertain terms. If you ask a question like "Do I need a lawyer?" it will not necessarily be answered by the police because they don't have to. If you are in doubt, you probably do need a lawyer, so make your demand loud and clear..

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What causes crime rates to go up or down?

Crime statistics show that both violent and property crimes dropped from 2008 to 2009, despite higher unemployment and a sinking economy. http://www.nytimes.com/2010/05/25/us/25crime.html?hp This is contrary to what many people believe. In the last year or so, friends and acquaintances would constantly ask me if my business was picking up due to the recession. The short answer is no..

Obviously with crime rates dropping, 'business' would be slower. But even more so, prosecution rates are dropping not only due to the dip in crime but also because state and local governments are cutting back on police, prosecutor and court budgets. My 'business' is far more dependent on prosecution rates than on crime rates. With the cuts in state and local budgets, another effect is felt: more lawyers without work. And when more lawyers are not employed by others, that means there are more of them competing to defend the shrinking pie of cases prosecuted..

But the bigger question is why are crime rates dropping in a recession? You'd think more unemployed people would mean more theft, robbery and other economic crimes plus more frustration, and perhaps more violent crime as well. Yet crime statistics from the 20th century show that the Prohibition era of the 1920's was far more violent than the Depression in the 30's. Experts do not have many well accepted theories on what causes crime rates to rise and fall. Some scholars have suggested such theories as: greater numbers of immigrants, who tend to keep a low profile; as opposed to this, others assert more illegal immigration increases crime rates; public housing policy dispersing the poor may decrease rates; legalized abortion (so fewer unwanted children are born) may decrease; the crack epidemic in the 1980's was thought to increase crime ; and changes in age distribution--e.g., the baby boom in the late 60's and 70's and the boomlet in the late 80's and 90's effect rates of crime..

The age distribution theory is probably the one most accepted. That is, crime rates tend to flow with the number of young males at a given time; the higher the proportion of young men in the population, the higher the crime rates since young men are by and large the biggest group of offenders. In fact, there is no strong statistical correlation between stricter law enforcement and longer sentences and the rise and fall of crime rates. See: http://www.psychologytoday.com/blog/the-scientific-fundamentalist/200808/when-crime-rates-go-down-recidivism-rates-go This just serves to show that politicians who emphasize 'law and order' as an issue may be just blowing smoke..

One interesting theory on why crimes rates might decline during a recession is it pulls families together, and this cohesion inhibits crime. More young people may move back home and are less influenced by their impulsive peers as well. There is also less economic activity in a recession so there is less interaction and opportunity for crime. Ironically, crime rates went up during the prosperity of the 1960's and one theory is that with rising wealth, the havenots and the people left out are more bitter and turn to crime. In contrast, when everyone's boat is sinking with the economic tide, there is more empathy, less jealousy and hence less crime. Of course none of this has been proven..

Finally, there are theories that smarter, better policing may reduce crime rates. For example, declining crime rates in New York City and Los Angeles are often ascribed to increases in the number of police on the streets, better computers for tracking crime, making precinct commanders accountable for managing crime in their districts, and an aggressive policy of searching people on the streets for guns. To be sure, the latter policy may deter crime, but makes it harder to obtain convictions if the Fourth Amendment is violated. Like many other factors, these claims of improved policing are unproven. Another possibility is that the increased use of very long 3 strikes sentences and federal mandatory sentences have cut back on the recdivist population. But that would not necessarily explain the drop from 2008-2009..

At this point, there is no final answer on what causes crime rates to go up or down..

What is Cruel and Unusual?

Recently the U.S. Supreme Court found that a life without parole sentence for a 17 year old who was found guilty of two very violent robberies was a cruel and unusual punishment in violation of the 8th Amendment. The question: what constitutes 'cruel and unusual punishment?' has been answered by the Supreme Court this way: "courts must look beyond historical conceptions to the evolving standards of decency that mark the progress of a maturing society." In other words, an acceptable punishment in one era (death penalty for rape) might become cruel and unusual in another era..

100 years ago, the Court said "that punishment for crime should be graduated and proportioned to the offense." 20 years ago the Court upheld a life without parole sentence for possessing a large quantity of cocaine and narrowed this by finding that 'cruel and unusual' "forbids only extreme sentences that are 'grossly disproportionate' to the crime." And just 7 years ago, the Court upheld a sentence of 25 years to life for the theft of a few golf clubs under California's three-strikes scheme. However, parole was still possible there..

In comparison to those cases, you would think very violent robberies deserve a life without parole sentence. The distinction is that for someone under 18 it is currently rare to get a sentence that long where no homicide was committed. This reflects a societal judgment not to impose such harsh sentences on juveniles, suggesting that such a sentence is 'cruel and unusual.' Underlying this is the notion of hope: juveniles have a better chance of rehabilitating than adults. Juveniles' "actions are less likely to be evidence of "irretrievably depraved character" than are the actions of adults.."

Due to the violent and repetitive nature of the robberies, this juvenile deserves to be imprisoned for some time in order to protect society from his "escalating pattern of criminal conduct." Nonetheless, he also should get a shot down the road to show that he has matured, changed and is ready to re-enter society. Under the Court's decision, the state of Florida could still deny him release on parole the rest of his life. But at least he has a reason to change..

Since the 1980's, we have come down harder on young offenders because so many of their crimes were as bad as adult crimes. Until the late 1980's in Washington, anyone under 18 accused of any crime was entitled to a hearing to determine if the case should be sent to adult court. Now 16 and 17 year old offenders accused of murder and other serious violent offenses are automatically sent to adult court to face adult level punishments. This trend to punish juvenile offenders more and more like adults swept across the nation. Obviously states like Florida took it much further than Washington did. Yet maybe now the pendulum is swinging away from such harsh treatment of juveniles. Just as more and more courts are trying to treat drug offenders instead of incarcerate them, perhaps we will begin looking at those horrible choices of youth with more mercy..

The Death Penalty Is Wrong

Just the other day a King County jury voted to impose the death penalty on a man convicted of killing two young women and two children. It was a brutal, incomprehensible crime. No one can understand how anyone can kill children, much less have mercy for the killer. Murders with quasi-rational motives are done in anger, for money, in jealous rages, to cover up another crime, or for sex. In this particular recent case, none of these motives were apparent. According to the defendant, he was in a alcohol/drug induced blackout and came to after they were dead..


This man had no previous criminal record and from what I hear, there was no evidence he had even been violent before. He had an alcohol/drug problem and probably other mental issues but nothing extreme enough to explain this crime. It is probable he did not even know or meet the victims before, as he just moved into the neighborhood. Despite this aberration in his life, the jury determined that there was not enough mitigating evidence to raise a reasonable doubt to spare him. My belief is that if you murder children, 'death qualified' juries will impose the death penalty. (A 'death-qualified' jury is made up of people who agree they can impose the death penalty if the law and the facts support it; those opposed to the death penalty cannot serve.] For the record, the last defendant from King County, who was sentenced to death by a jury, also killed a child. He is still on death row..


On its face, this does not seem unfair or wrong. Kill an adult you can spend the rest of your life behind bars, but if you kill a child, life in prison does not seem severe enough of a response. So the death penalty serves that purpose. And yet. . . the worst killer in the history of this State--the Green River Killer--did not get the death penalty. Instead he was able to trade his knowledge of where his victims were buried to get a life sentence. In other words, that case seemed to say: 'Kill enough people, you can make a deal!" Although the people involved in making the deal with the Green River Killer might disagree and say he provided 'closure' to his victims' families, it does not deal with the essential unfairness of that result..


No other criminal terrorized a community for so long, killed so many young women and girls, and collaterally harmed so many others as the Green River Killer. If that criminal does not get the death penalty, how can it be justified for someone else who did less harm? It can't. Therein lies a major flaw with the death penalty: its inconsistency. Also, recall that none of the Wah Mee killers who murdered 13 people received the death penalty as well. In our all too human and flawed legal system, this lack of uniformity and consistency defeats any righteous defense of the ultimate penalty..


And I haven't even mentioned the death penalty cases from other states that involved innocent people! For the simple reason that our legal system can never be flawless, I cannot support the death penalty. One of the fundamental maxims of our legal system as expressed by Blackstone is that 'it is better to let 10 guilty men off than to condemn one innocent man.' As we are loathe to imprison the innocent, our governments should not be putting people to death. As Justice Blackmun, a Nixon appointee, put it: our society should not "tinker with the machinery of death." It is time to stop the death penalty..