Posted on April 7, 2015
The department of “did I just say that out loud?” brings us the following: The California Supreme Court published an opinion on the cautionary admonition yesterday, People v. Diaz, S205145, that is kind of interesting substantively but even more intriguing for its discussion of an argument that the Attorney General made — an argument that basically begs to be recycled by the defense bar with a cite to the AG’s position here.
Diaz concerns whether the jury needs to be told that it should “consider with caution” unrecorded out-of-court statements made by the defendant, including in cases where the statements go to an element of the offense, such as in threats cases. The piece of the opinion that really catches my eye is the following:
the Attorney General argues that, in the context of a criminal threats case, the cautionary instruction conflicts with the requirement that the elements of the offense, including the threat itself, be proved beyond a reasonable doubt. The Attorney General contends that the cautionary instruction could mislead jurors to believe they could find a defendant guilty of making a criminal threat without proof beyond a reasonable doubt that the threat was made, as long as they exercise caution in making that determination.
Now, the Cal Supremes say this contention is “not persuasive.” But here we have the Attorney General publicly arguing that the “cautionary admonition” language of CALCRIM No. 358 could undermine the standard of proof beyond a reasonable doubt. And perhaps it could. But so could plenty of language in other CALCRIM instructions, language that is far more closely directed specifically to the burden of proof — like CALCRIM No. 376 on possession of recently stolen property [“if you also find that supporting evidence tends to prove his guilt, then you may conclude” the defendant is guilty], CALCRIM No. 359 on corpus delicti [“the other evidence may be slight and need only support a reasonable inference that a crime was committed”], and on and on. When we challenge these instructions in the future, and when the AG argues that we’re insane, it seems like a discussion of the position asserted in Diaz may turn out to be relevant.
The point of making this argument, for the AG, was that the AG was trying to say that the cautionary admonition need not be given in a case where the defendant’s out of court comments go to an element of the offense. The intent, in other words, was to try to obtain convictions more easily in threats prosecutions. Ultimately, however, the AG lost that battle, and meanwhile its concession regarding the potential for an instruction to undermine the reasonable doubt standard seems, to me anyway, to be significant for future claims.
Posted on April 6, 2015
This week, the California Supreme Court granted review in People v. Vidana, which raises the question whether an individual can be convicted of both embezzlement and grand theft by larceny based on the same conduct. The Court of Appeal had concluded that these were not two separate offenses, and were simply two different ways of committing theft. We’ll see if that holds up on review.
Posted on April 2, 2015
The SF Chronicle reported this weekend that “irregularities” at the SF DNA lab “prompted them to reassign a technician and her supervisor while officials conduct an investigation into apparent violations of department testing standards,” and that the analyst “allegedly filled in the gaps in poor-quality, incomplete genetic evidence. She generated two complete genetic profiles, and both were sent off as definitive test results to the state’s offender tracking database.”
This technician worked on — wait for it — 1,400 cases, but “failed a DNA proficiency exam last year.” So did the technician’s supervisor, according to the Chronicle.
There is an interesting Crawford/Melendez-Diaz type angle in this case, because of the following fact. The name of the technician who supposedly had these problems and worked on 1,400 cases is Mignon Dunbar, according to the Chronicle. But guess how many hits you get when you search California state cases for “Mignon Dunbar” in Westlaw?
Zero. Not a single one.
Dunbar’s supervisor, Cherisse Boland, returns all of one hit, in a single unpublished case.
So these people were mucking around in a substantial number of cases and coming up with DNA results that may or may not have been valid, and presumably were used to convict people. Yet they have managed to be almost completely invisible to post-conviction review, as if they were never a part of the process at all. Something is obviously wrong about this.
Posted on March 31, 2015
A Ninth Circuit panel has reversed the death sentence of a California inmate based on his attorney’s ineffectiveness in the penalty phase. The heavily redacted decision is Doe v. Ayers (15-9906). Interestingly, this is a pre-AEDPA case, the underlying federal petition having been filed in 1995.
Just a final post to wrap up Sunshine Week: The San Diego Free Press ran an interesting op-ed on governmental transparency (and media indifference) from former San Diego City Council member, and current Cal Aware President, Donna Frye. Frye notes that, despite the importance of the values that Sunshine Week represents, much of the media in San Diego was basically indifferent, as if open government were of no particular importance or were not the problem of the media. She adds:
Open government matters because what we don’t know can harm us. We have a right to make informed choices about the most basic things in our lives such as the food we eat and the water we drink. We are better off knowing the standards government uses to ensure our health and safety rather than having to guess about whether or not our food and water is safe to consume.
It matters because what we don’t know can cost us a boatload of money.For example, we have a right to know whether elected officials are spending our money wisely on things that will improve our lives, or using it to curry favor with folks who can spend unlimited amounts to get them re-elected. Open government informs our decisions about whether our local taxes would be better spent building a new stadium for the Chargers or fixing our aging infrastructure. Without knowing what it costs, it’s impossible to make a reasonable decision.
Open government matters because it improves our lives by giving us a voice. An informed public is better able to actively participate and change the things we don’t like, but that’s hard to do if we can’t get access. Government information belongs to us, not the elected officials, and it’s something worth protecting and fighting for every day. Without it, we are simply wishing and hoping that what we think we know is accurate. It also makes us an easy target for those who know things that we don’t.
Amen. Frye’s emphasis, in particular, on the idea that we must persistently push for openness is absolutely correct. If the people do not push, the government will not conduct its affairs openly and will instead move continually toward greater opacity.
Sunshine Week 2015 (March 17, 2015)
Posted on March 28, 2015
This week the California Supreme Court granted review in Maas v. Superior Court, S225109, regarding whether PC 170.6 permits a peremptory challenge to be brought against a judge hearing a habeas petition before an order to show cause has issued. The underlying opinion in this case, though no longer citeable, is at (2104) 232 Cal.App.4th 169.
Posted on March 24, 2015
Suppose an attorney does a poor job handling sentencing in a noncapital case, and suppose the defendant ends up in federal court arguing, on habeas, that that lawyer’s error constituted ineffective assistance of counsel (IAC) — is there “clearly established federal law” on non-capital IAC such that the defendant has a shot at getting relief?
A Ninth Circuit panel takes a look at that question in Daire v. Lattimore (12-5567), published on Thursday, and nods in the direction of suggesting that perhaps there is “clearly established” law — but then concludes that it doesn’t make any difference for this particular petitioner.
Is that dicta? I express no opinion on the matter, and in any event, after Lopez v. Smith it doesn’t seem like Ninth Circuit opinions can necessarily tell us all that much about the contours of what’s “clearly established.” But anyway it’s helpful language, so here it is:
As the district court observed, we have twice previously held that there is no clearly established law, as required under AEDPA for a federal court to provide habeas relief to a state prisoner, that the Strickland standard applies to sentencing in noncapital cases. See Davis v. Grigas, 443 F.3d 1155, 1158 (9th Cir.2006), and Cooper–Smith v. Palmateer, 397 F.3d 1236, 1244 (9th Cir.2005) (“Since Strickland, the Supreme Court has not decided what standard should apply to ineffective assistance of counsel claims in the noncapital sentencing context. Consequently, there is no clearly established law in this context.”). That is a proposition not free from debate, as indicated by the concurring opinion by Judge Graber in Davis, where she questioned whether Cooper–Smith was correct on that point. See Davis, 443 F.3d at 1159 (Graber, J., concurring); see also Davis v. Belleque, 465 F. App’x 728, 729 (9th Cir.2012) (per curiam) (Paez, J., concurring) (agreeing with Judge Graber’s concurrence in Davis ). Daire also argues that later Supreme Court decisions have made clear that the Strickland standard applies more generally, citing, for example, Glover v. United States, 531 U.S. 198, 201–02, 121 S.Ct. 696, 148 L.Ed.2d 604 (2001); Premo v. Moore, 562 U.S. 115, 131 S.Ct. 733, 737–38, 741–42, 178 L.Ed.2d 649 (2011); Harrington, 562 U.S. 86, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011); and Lafler v. Cooper, –––U.S. ––––, –––– – ––––, 132 S.Ct. 1376, 1385–86, 182 L.Ed.2d 398 (2012).
We see some merit to Daire’s argument. It is clear that the Strickland standard, though originally limited by the Strickland opinion itself to capital sentencing, see Strickland, 466 U.S. at 686, now applies in contexts beyond that.
Posted on March 24, 2015
This may be a little out of left-field for some folks, but anyway here goes: I’ve had a sense in the last month or two of getting to a new and interesting place in my work, and this has primarily had to do with a talk that I heard Equal Justice Initiative Executive Director Bryan Stevenson give in Monterey — a talk that was somewhat similar to his TED talk but more focused on the work specifically of post-conviction lawyers. This new place, oddly enough, connects to some reactions I’ve had in listening to the just-released Kendrick Lamar record, which is a work of hip hop that is so ambitious and dense, in a literary sense, that it’s a little like a graduate seminar wrapped in a cocoon of popular art.
The connection between these things has to do with the importance of history and interpersonal connections in telling the stories of human struggle. A point that Stevenson stresses (as do many folks who work on death penalty issues) is that defense attorneys need to strive to understand the deep story of their client’s lives: not simply the facts of the offense, however dramatic those may be, but the facts of the life that came before, the culture from which that life emerged, and the broader history of that individual’s community. Frequently, understanding those stories requires addressing the devastating effects of slavery and/or racism, as Stevenson discusses starting at about the 9 minute mark in the talk linked above. It will frequently also deal with poverty, with abuse, with neglect, with mental illness, and with the structural challenges and inadequacies that push individuals toward lives of desperation.
On Kendrick Lamar’s new record, this emphasis on the deeper currents that inform contemporary action is made literal through a digitally created “interview” between Lamar and the late rapper Tupac Shakur, who was a giant of the hip hop community when he was murdered in 1996. Lamar includes in this “interview” a clip of Shakur saying that “we ain’t really even rappin’, we just letting our dead homies tell stories for us” — which, obviously, is, exactly what is happening in the interview itself. And though Lamar is commenting on the role of history in the narrative form of hip hop, this idea that our stories include the voices of the past is undeniably true, and undeniably powerful. The dead continue to speak in the lives of the living. The threads of the past are woven, inextricably, into the fabric of the present.
I’ve been thinking about these historical threads because I get very aggravated with the predictable popular narratives of criminal justice, which invariably focus on the “monstrosity” of individual actors — as if individuals just popped up out of nowhere, full of badness and ill intent, like villains in a television drama. I get tired of reading about how such and such a Terrible Thing happened when a person was let out of prison slightly early, as if the very fact of incarceration were not also a gaping wound in some person’s family and a source of pain and suffering for a broader community. And I get truly vexed when I read criminal justice policy analysts who strive, perversely, to deny the deep and obvious racial dynamics in the way policing, prosecution, and incarceration occur in America. These types of arguments do their utmost to ignore the deep connections in human life, disregard the profoundly painful rifts in American society, and emphasize instead only the most simplistic and superficial ideas about human behavior.
What Kendrick Lamar and Bryan Stevenson both suggest, in very different ways, is that we must insist on bringing the past to life if we are to meaningfully engage with contemporary stories of struggle. We must tell the stories of individual clients not as “clients” but as real people, who come from real places, and real histories. And that requires both imagination and a kind of deep empathy that is more akin to the work of an artist than a lawyer, at least traditionally conceived.
The appellate courts, needless to say, are not overwhelmingly eager to hear these stories, nor are they particularly well equipped to evaluate or respond to them. The courts are not set up to review human lives writ large, they are there to evaluate judicial action, writ small, and carefully confined to issues that can be cleanly resolved on the basis of precedent.
But it seems to me that it is our obligation, as much as possible, to push the boundaries of those expectations, and to insist on telling the stories that should be told. We should insist on the humanity — the full, contextualized humanity — of the people we represent, and we should tell the story of that humanity at every opportunity. The reaction, from some quarters, will undoubtedly be as baffled as if we had constructed an “interview” with an artist who has been dead for nearly two decades. But drawing those critical connections between the past and the present is the only way to do our work, imaginatively and richly, in the manner in which it needs to be done.
(The title of this post is from Lamar’s song These Walls.)