Guns, Bombs and Due Process

Robot Bomb

The Due Process clause of the US Constitution provides that no person shall be deprived of life, liberty, or property, without due process of law. That principle has historically been interpreted to prohibit extrajudicial killing of suspects without a trial or some other legal proceeding.  In the case of the Dallas Police robot bomb the police  circumvented any judicial process and served as pre-trial executioners when they were unable to apprehend the shooter. I am certainly not defending the actions of the suspect and I understand that efforts were made to apprehend him before he was bombed.  I still take issue with the idea that bombing a suspect is an acceptable tactic, even as a last resort.

Using bombs on suspects not only violates due process but it also blurs the line between military and police tactics.  The recent public concern and push back over the use of the robot bomb is warranted and necessary to preserve our constitutional principles as well as the peace and civility of our streets.  While bombs have existed for decades, there are many reasons why police don’t use them on our civilians.  Nobody wants weapons of war on the street that will transform our cities into war zones with bomb blasts. We should all be concerned when our already militarized police force takes this major step towards further militarization. Whether or not the Dallas shooting suspect deserved to die, our civility and our constitutional principles do not deserve the same fate.

As Americans we claim to hold a moral authority among nations because of our constitutional values like due process, free speech, the right to a fair trial and the presumption of innocence. When we agree to compromise any of those fundamental rights then everyone loses.  There are some who believe that a cop-killer does not deserve due process, I disagree. To honor our legal principles we have to insist that they apply in every situation. Compromising our principles even once is a collective compromise of our rights and once we open that door it becomes very difficult to close. Today the exception was made for a cop-killer, tomorrow it may be a gang member, and eventually we may end up with Apache helicopters engaged in urban tactical warfare firing on streets and homes where police feel that their safety is compromised and their justification will be to preserve police and civilian life at the expense of our founding documents and principles.

To be clear this was not the first time our due process clause was compromised by the state. Every time a young black man is shot and killed in the streets we violate some of the same constitutional principles, so much so that many Americans have become immune to the state violations. Many insist on ignoring the issue and defending the officers involved by reminding us how difficult and dangerous it is to be a policeman and that we have to protect our cops from dangerous criminals. I agree that it is a dangerous and difficult job but officers willingly embraced that career despite the dangers. They choose to put themselves in harms way to serve and protect the public, civilians don’t make that choice but they still often suffer the same dangerous consequences, especially if they’re black. Fear can not justify extrajudicial murder and lethal force can not be the initial response to a scary situation. I know that not everyone has the restraint and resolve to keep a gun holstered in tense situations. Those who lack the necessary restraint need to find other work and do not belong on the street with a badge and gun patrolling communities that they already fear and distrust.

It’s clear to me that the number of guns in America exacerbates the issue of police violence. Police are afraid that they can be shot anytime because guns are everywhere and as we saw in Dallas, isolated police misconduct by a few bad apples can make every cop a target in every city in America. That reality puts police on the defensive and they often decide to shoot first even before they are confronted with a suspected weapon. Following the shooting in Dallas, police scrambled to detain and question many innocent protesters who were armed and were therefore suspects. The Dallas police chief even made statements calling the open carry law into question indicating that it contributed to the confusion and hysteria of the situation. Our gun laws are absurd and archaic, despite what the NRA tells us. Perhaps after losing five sworn peace officers to an angry sniper we will reconsider our gun laws in order to protect our cops and civilians. The Dallas shooting, Alton Sterling, Philando Castile, these are all examples of senseless gun violence and it is within our power to legislate necessary change.  The time to address this issue is now while public sentiment and political will are simultaneously focused on the loss of black lives and police lives. The tension between police and minority communities will not disappear anytime soon but we can help deescalate the situation by taking steps to remove the guns. We must strike while the iron is still hot to legislate change or we will watch the fire continue to burn and destroy lives and communities.



Baltimore Burns Along With Our Trust in Police

Screen shot 2015-04-29 at 1.06.09 AM

Law enforcement agencies are supposed to serve and protect. That paradigm is shifting and more communities are losing confidence in their officers. From Baltimore to Charleston to Ferguson to New York we see the same story with different backdrops. This pattern of police brutality and murder drive public outrage and civil unrest in cities where “law enforcement” is operating above the law. For decades this type of police misconduct has been allowed to spread like a fungus while police and city management turn a blind eye or cover-up material evidence that may have resulted in the removal of the bad cops before they commit more violence adding to public distrust. Part of the problem is the police code of silence where police cover up for each other by hiding the truth and withholding information that would otherwise expose the bad seeds. The proliferation of smart phones and social media has made this misconduct more evident. Police corruption is no more common than before but now it is more readily available via twitter, facebook and instagram. Social media has effectively broken the code of silence by delivering evidence directly to the world.

On April 4, 2015 former US Coast Guard Walter Scott was shot and killed while fleeing from officer Michael Slager following a traffic stop. Slager was terminated, arrested and faces murder charges because the incident was caught on video. Without that recording there would be no proof against Slager who planted evidence on Scott and lied in his report to cover up the murder. He lied claiming Scott was the aggressor who took his taser. Other officers quickly arrived and failed to assist the victim thereby implicating themselves in the lie that police attempted to resuscitate Scott who is seen in the video handcuffed face down on the ground until his body was placed in the ambulance. Without the video the Scott family would have no chance at finding peace or justice. This is one of many stories of why civilians need to oversee their police.

My city, Pasadena California is the midst dealing with the issue of police oversight. I am one of many members of Pasadena’s Coalition for Increased Civilian Oversight of Police. We organized after attempts by the city manager and the police officers union to withhold evidence regarding the police shooting of Kendrec McDade. Documents were recently revealed indicating that the Pasadena police acted outside of their own policy resulting in the fatal shooting of a 19 year old unarmed male being shot multiple times in the back as he fled from police who were chasing him by car and on foot. So far the city has provided excuses instead of support regarding civilian oversight. Our new mayor elect takes office in May. He ran a progressive campaign so I hope he continues to side with progress and public safety over the status quo.

Absolute power corrupts absolutely. We can no longer trust police to police their own when they continue to operate above the law. History has proven that self-policing models are flawed and encourage misconduct and corruption. Each community must insist on its own civilian oversight plan to monitor cops. Remember they work for us, we pay their salaries and they answer to us, not visa versa. Communities are in the best position to identify and uproot the bad seeds in order to preserve the trust that is necessary to foster healthy relationships between police and communities. The role of city management in this process is to empower the public and help create these oversight bodies instead of fighting with citizens who are working for the safety and security for their families and neighbors. When city government opposes such models it makes me nervous. Perception is reality and when cities are afraid to pull back the curtain on police conduct the perception is that there must be skeletons in the closet. Transparency in government and law enforcement is a necessary prerequisite to healthy democracy. Today both our nation and our democracy are far from healthy and denial is not the remedy.

Not all cops are dirty. Just like everyone else police can be honest and noble or they may be bad seeds that create animosity, anger and sow public distrust. That distrust has driven negative public sentiment that has gone from a slow simmer to a rapid boil. For too long the bad seeds were left to grow and spread like weeds. We need honest, confident, outspoken cops to weed their own yards. Until that happens the only solution is to insist on civilian oversight to check our cops before they murder one more member of the communities they “serve.”

Invest in Community, Not in Prisons, the Case for CA Prop 47

Prop 47

This November Californians will decide whether or not to improve our “justice system.” Our state prisons currently house some 136,000 individuals. For years we ranked first in largest state prison population in America. Recently Texas surpassed us but we’re still a strong second wearing the shiny silver medal of dishonor, the bronze goes to Florida with over 100,000 prison inmates. Since 1980 our prison budget has increased nearly 450% while our higher education budget consistently suffers. We’ve prioritized prisons over education. Our sky rocketing prison budget is not about California having more “criminals,” it’s about implementing policies that criminalize more Californians. Private corporations and lobbyists have succeeded in driving up our prison spending to nearly $12 billion. The numbers are alarming, especially when we focus on the disparate impact on black and Latino men who represent some 70% of our prison population.

Our penal codes need to be amended and unfortunately the state legislature has not had the courage to make necessary changes out of fear of appearing “soft on crime.” They also want to maintain support of the state’s multi-billion dollar prison industry. California voters have a rare opportunity to make the necessary change now by voting for Proposition 47 on the November ballot. This prop will certainly not fix all of the injustices in our criminal system but it does provide for some excellent prison reform for non-violent offenders. The language of the proposition is narrowly tailored to include 6 penal code sections pertaining to drug possession and minor theft or fraud offenses involving less than $950. The proposed language reduces these offenses from felonies (which carry possible prison sentences) to misdemeanors which carry a maximum sentence of one year in county jail. Anyone currently serving prison time for these minor theft or drug possession offenses may be re-sentenced as misdemeanor offenders and will serve a maximum of one year in county jail along with any additional probation terms that a judge deems appropriate. The language of prop 47 excludes persons with violent criminal records including rape, molestation or any other strike priors. A drug user or shoplifter with a violent prior strike conviction is excluded and will still serve prison time so there is no risk of releasing violent offenders.

Having served as a public defender for six years I’ve seen many good people with addiction and mental health issues sentenced to lengthy prison terms because of their history of substance abuse and non-violent crime. Upon release these felons are excluded from most employment opportunities and are stigmatized for what are often relatively minor offenses. Our prisons are full of non-violent offenders who need mental health counseling and drug treatment but instead of rehabilitation we spend billions on housing, feeding, clothing and incarcerating them for years while never addressing the root of the problem. Prop 47 does address some of these root causes. The estimated $150- $250 million per year in state savings will be re-allocated from prison spending to mental health and substance abuse treatment (65%), k-12 education (25%) and victim trauma recovery services (10%). This reallocation will address some of the root causes that result in high recidivism rates when left unaddressed.

As long as corporate money and fear drive political policy our legislature will never propose a bill like this. This is our opportunity as voters to show the rest of the nation that Californians do not see incarceration as a solution for addiction, mental health issues and non-violent theft offenses. This prop is supported by the San Francisco and Santa Clara District Attorneys, former San Diego Police Chief, California Teachers Association and numerous organizations that value individual life and public safety while rejecting the fear tactics presented by opponents. This prop is entitled “California Safe Neighborhoods & Schools” because it invests in our neighbors and schools, NOT in private prison corporations. Incarceration is only a temprorary fix that does not make us safer, investing in our communities does.

The Secret Behind a Not Guilty Verdict



Our criminal justice system isn’t perfect, far from it. Our judicial history is littered with discrimination, injustice and convictions of innocent defendants. Today verdicts are increasingly being overturned because of DNA analysis and exculpatory evidence after the fact. For others however their wrongful convictions and executions can never be undone.

On the other hand juries also acquit guilty defendants despite mountains of evidence and eyewitness testimony against them. In 1955 Emmett Till, a 14 year old African American boy was beaten and murdered in Mississippi by a white mob who were seen kidnapping him from his bedroom before throwing him in the back of a truck and subsequently beating and shooting him to death. An all white jury acquitted the defendants.  Sadly the Till case is not unique and clearly our juries are not always right. So why do people get acquitted even when they are guilty? I’m about to spill the beans on one of the best-kept secrets in criminal law.

When I was a new attorney working for the Public Defender I attended a lecture by one of the most respected and successful criminal attorneys in the county. His presentation was about how to ensure acquittals and his simple theory was one I’ll never forget. “The jury will only acquit someone they don’t want to convict, and they’ll only convict someone they don’t want to acquit.” It took a minute to sink in but when it did it changed the way I try cases.

The bottom line is that the most significant factor in an acquittal is getting the jury to like your client. Not only must they like him or her but they also have to empathize and relate to him or her enough to acquit, even if he or she is guilty. Evidence and witness testimony are important but they are just one part of the equation. Emmett Till’s tragic story is a case in point. Two white men were acquitted despite eyewitness testimony and evidence that left no doubt that the defendants kidnapped and murdered the young man. The white 1950’s era jury wanted to acquit the defendants of killing Till who allegedly whistled at a white woman outside of a grocery store that was owned by one of the defendants. By all accounts the verdict was a miscarriage of justice, an ugly scar on our judicial history. A lesson in this tragedy is that jury verdicts are not just about factual guilt or innocence. They’re about how the jury sees a client and victim and whether they like the client enough to acquit, or dislike them enough to convict.

A skilled defense attorney tells a story to the jury that connects them with the defendant and makes sure they like him or her enough to return a not guilty verdict. The advocate must draw upon a jury’s compassion for the client even when it is not apparent on the surface. There are many ways to do this and each successful attorney has their own style.

A former DUI client in Riverside County drove with a blood alcohol level nearly three times the legal limit. He was chased out of a bikini bar after he grabbed a waitress from behind. The defendant’s “legal argument” at trial was that he drove out of necessity because he was being chased by a group of angry white males who were yelling racial slurs at the black defendant. They followed him to the parking lot screaming and pushing him until he got in his car and drove away to protect himself. The problem was that my client turned around and drove right back to the bar less than five minutes later just as the police pulled up and arrested him for drunk driving.   My client was very large but soft spoken and articulate. He took the stand and cried about the incident and how hard it was for him to hear the racial slurs. The jury came back Not Guilty! The prosecutor was shocked but the jurors were hugging and consoling my client outside the courtroom after the verdict. I presented the jury with a sympathetic client and a weak necessity defense but that’s all they needed to acquit him. Factually speaking the necessity defense should have failed when he turned around and drove right back to the bar instead of going somewhere safe. The jury cared less about the details and more about my client who they clearly sympathized with.

The key is to paint the defendant in the most positive light. When a client is not likeable it certainly makes things harder. I’ve had my share of rude, mean and generally unsympathetic trial clients where the only thing to do was to keep them off the witness stand and as far away from the jury as possible. You still have to make your sympathy pitch and often times that is much more effective when your client remains silently seated next to you at counsel table and keeps a low profile.

A good defense lawyer is an artist, a conductor who leads a symphony so that the jury absorbs an emotional and compelling melody that speaks to their hearts. By the time closing arguments are done the jury has to see your client as the protagonist in order to find him not guilty, regardless of the facts. It certainly helps when the facts are on your side, but that alone never guarantees victory.

July 4th DUI Tips

DUI Checkpoint

Independence Day is about celebration, but for too many it becomes the anniversary of their first DUI. If you are drinking this weekend, don’t drive. Even drinking a small amount puts you at risk of being arrested if you get pulled over and “fail” a field sobriety test. As an attorney I’ve had to defend too many people in court whose blood alcohol level was over and under .08% (California’s legal limit). Know that the law does not require your blood alcohol level to be over the limit to be convicted. The vehicle code includes a section that allows for prosecution for any amount of alcohol (or drug) in your system if an officer believes you are impaired such that you could not drive with the same caution as a sober person. This is very subjective making it easy to justify an arrest, especially on nights like July 4th and New Years Eve when there are check points all over the city.

If you get pulled over or stopped at a checkpoint know that you have the right to refuse a field sobriety test (FST). In my decade of criminal defense experience I have NEVER read a police report where the officer indicates that the driver “passed” a FST. The test is administered in a way that helps police observe everything about you and collect enough information to find you “impaired” and convict you.  Even on their best day most people have trouble balancing on one leg for 30 seconds or walking in a straight line “heel to toe” without using their arms to balance. The best thing to do when asked to do a field sobriety test is to refuse. You have the right to refuse and that refusal can not be used against you in court.

You can also refuse the interview. If you’ve been drinking and the officer asks you how much you’ve had to drink you can simply refuse to answer or ask “are you detaining me or am I free to go?” The cop has to decide at that moment if there is enough evidence to arrest you without a field sobriety test or breathalyzer. If he doesn’t have enough, and he shouldn’t, then he will let you go or keep you talking to get more information. If you engage in lengthy conversation the officer will make “observations” to determine your sobriety, or lack thereof. If you admit to drinking then you have bolstered the case against you so keep your mouth shut or ask politely again “am I being detained, or may I leave?” Repeat as needed.

The best way to stay out of trouble this weekend is by NOT DRINKING AND DRIVING.  Call a cab. That will be safer and much cheaper than the $7,500 in DUI fines, fees and legal costs. If you are feeling tipsy you can also call AAA‘s tispy tow hotline tonight for a free local tow and ride home (1-800-400-4222).

Have a happy and safe 4th of July.

Police Violence is Still Violence

Last week the city of Pasadena agreed to pay  $1,037,500 to the parents of Kendrec McDade to settle civil cases involving two police officers that shot and killed the 19 year old on March 24, 2012. The young man was shot eight times after a brief pursuit. Police believed he was armed after receiving a call identifying an “armed suspect.” The caller later admitted that there was no weapon and that he lied so police would respond faster. An investigation found the police conduct to be “lawful and within departmental policy.” The loss is a scar that will forever leave a mark on this city. The million dollar settlement is also a painful reminder of the monetary cost of gun violence.

This story serves as one more lesson in a long list of recent tragedies resulting from gun violence.  Just because the shooters in this case were uniformed officers, this loss is no less tragic than losses at Santa Barbara, Sandy Hook or anywhere else.  America consistently has the highest rates of gun related fatalities on the planet, yet we refuse to address the issue of gun control in a more effective manner. Instead we continue to debate gun advocates who repeat the mantra “guns don’t kill, people kill.”  We have a responsibility to advance the conversation to include viable alternatives to our current reality of widespread access to fatal weapons. England is one such example where neither police offices nor private citizens carry guns. Last year while 12,000 people in America died from gun violence, England had less than 200 gun fatalities.  There may be several reasons for this disparity, and one of them is certainly the fact that handguns are not readily available to the public or the police.

At some point the lives of those thousands of victims should be valued more than our absurdly liberal gun laws. I hope that our conversations and gun policy decisions one day reflect a higher value on human life. In a civilized society the preservation of life should outweigh the right to bear arms, because lives are always more valuable than guns. Image

Tips for Dealing with Law Enforcement

Seattle police officers wearing riot gear guard a Starbucks coffee shop during May Day demonstrations in Seattle

1. The Right to be Free from Search

The Fourth Amendment guarantees our right to be free from unreasonable search and seizure. This right applies to all persons whether walking, driving, riding a bike, sitting at home or even standing around in a public space. The 4th amendment was written to protect individuals from police and law enforcement agents. That means police can not search you, or arrest you without a warrant, or without evidence that you are involved in a crime. One way police often get around the warrant requirement is by asking if you will agree to a search of your vehicle, bag, home or other property. Know that you always have the right to refuse a search, and you should exercise that right with confidence, knowing that state and federal law support you in asserting that right to be free from unreasonable search and seizure. If an officer asks if he/she can search you, your car or your property, simply say “No, I do not consent to searches.” Repeat as needed because they can be very persistent.

2. The Right to be Free from Seizure

The Fourth Amendment also protects individuals from police who may try to arrest or detain you without legal justification. Police can be intimidating, but remember that the law is on your side and is there to protect you. When officers stop you on the street and want to question you, you can quickly terminate that police encounter by asking the question: “Officer are you detaining me, or am I free to go?” At that point, if the officer says you are not being detained, then just walk away, because that is your right, and the officer knows that. When police question you, that usually means they don’t already have enough evidence to detain you, and most likely they’re fishing for anything they can use against you or someone you know. Be smart, don’t stand there and provide info that can later be used against you or someone else in court. Quit while you’re ahead, and keep your mouth shut.

3. Your Right to Remain Silent, Shut Your Mouth and Stay Out of Trouble

Everyone who’s watched a cop show has heard the phrase: “you have the right to remain silent, anything you say can and will be used against you in a court of law.” Despite hearing that phrase repeatedly, many people are all too eager to speak to police whenever they are asked to do so. If you are being questioned about possible criminal conduct, you’re best response is always: “I choose to remain silent, I’d like to speak with a lawyer.” You may have to repeat that sentence several times, because the police will most likely continue to ask you questions and try to get you to change your mind. Be firm, and remember that the law is on your side, and remind them that you will remain silent, and would like to speak to a lawyer. Cops are allowed to lie to you, so don’t be tricked by false threats or promises, don’t give up your right to remain silent, be firm, and shut your mouth. If cops are questioning you, that often means they don’t have enough evidence against you, shut your mouth and don’t give it to them.

60 years after Brown v. Board of Education, segregation still plagues America



1. The elusive goal of desegregation

60 years ago the US Supreme court ruled unanimously (9-0) that “separate educational facilities are inherently unequal.” As a result, de jure racial segregation was outlawed, and this paved the way for desegregation in other areas of life. It was certainly a legal victory for civil rights advocates, but the ruling did little to change the hearts and minds of those hell bent on discriminating against blacks or other minorities. Rather than succumbing to the perceived evils of desegregation, many white families simply moved to suburban areas where their children would not attend school with black students. In Pasadena where I live, it was not until 1970 that local schools were finally desegregated by a court order which required “busing” to enforce desegregation. At that time, a very significant portion of white families in Pasadena pulled their children from public schools and enrolled them in local private schools. Until this day, Pasadena has one of the highest concentrations of private schools in the country. The consequence is that our public schools in the city are majority black and latino, and the education, graduation rates and resources available to those public school students reflects a lasting disparity between most white and minority students in the city. Segregation is still our reality. In a report published by the Economic Policy Institute, researchers found that today African American students are more isolated than they were 40 years ago, meaning today there are less white students attending school with black students than there were in the 1970’s. ( While the law is on the side of racial equality, the march to desegregate our schools continues.

2. Segregation in the justice system

Although segregation is unlawful, de facto segregation thrives where communities are separated by race due mostly to economic circumstance. Minority families who may be struggling financially are forced to live in lower priced neighborhoods, and to send their kids to local public schools with higher drop out rates, lower standardized test scores, and less access to certain resources. Police departments invest more time in “policing” these lower income neighborhoods and inevitably people of color tend to fill our prisons in much higher numbers. According to the Sentencing Project, 1 in 10 black males in their 30’s are incarcerated, and more than 60% of inmates in America are minorities. ( This disparity in convicting minorities effectively perpetuates the cycle of segregation in America. The billions of dollars spent on our prison system could be invested into communities of color to promote education, opportunity and positive alternatives before our youth get trapped in the web of injustice. That decision to invest in incarceration over education reflects a continuing attitude of de facto segregation. We currently have 34 state prisons in California and 33 state universities. Education and professional opportunities must be viewed as an alternative to incarceration. We need to appreciate the value of investing in desegregation through education. It may be 60 years since Brown v. Board, but we still have a long way to go to end segregation and discrimination.