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.



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.