Kind Cops

To be fair, if I'm going to call cops pigs, feature recurring posts on pigs in the pokey linking to their misconduct, and say they are all bad and racist, I should also note when there is a cop acting kindly. The truth is: I think there are some cops who intend and try to do good and maybe the majority are not intentionally racist but we all act with implicit biases. Why I get more mad at cops for having the same implicit biases that we all have is that thoses biases result in a disproportionate number of people detained, arrested, and ultimately incarcerated because of their race.

Anyway, I am reposting this tweet that a public defender JJC follows wrote the other day. I am sure we all have stories where a cop we destroyed on the stand showed us compassion or did us a favor when he was off the stand. So, to those cops who respect what we do, even though I joke about it and it may not be clear I'm joking, I respect you too.




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And the Pulitzer Prize for coverage of the Castro sentencing goes to...the Onion

The Onion covers the highlights from Castro's statement at sentencing (click photo for story):




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big plans

It is no secret that I have big plans for and ideas for JJC. There is not enough time in the day. If anyone wants to guest blog email me. My big idea that I am pumped about (but that will take a very long time and amount of research and work) is to do a shit ton of sunshine act and FOIA requests for police procedure and policy manuals and make them downloadable here. I'm also thinking about requests for DA policies and training materials e.g. their Brady discovery policy. I also want to research how these rules apply to private third-parties who are government contractors (e.g. CVT lab), and if they apply to them, do similar requests there.
Now, proposing this here might demonstrate my ignorance because I may do all the work just to learn I will get nothing because of some statute.  California's public records statutes are the worst because our privacy laws are among the strongest in the country. But, it is worth a shot. If you have any knowledge on the subject, experience, ideas about what to request, or a list of departments to get them from, please email me at juicejusticeandcorgis@gmail.com

Good lawyer or Good Luck?

So, I am going to start copying TMZ's recurring posts where you look at an old and current photo of a celeb and vote whether you think that celeb looks the way she does today because of "good genes or good docs?"

I shall call this copycat recurring post "good lawyer or good luck?"  This refers to cases where someone (read: either named OJ Simpson or else is a white rich person, usually a former judge, cop, or da) gets a ridiculously lenient sentence or is acquitted.  I'll spare you a good lawyer or good luck? on Zimmerman.

Today's good lawyer or good luck? (vote at the end) comes from alameda county.  A few days ago it was CoCo with all the judges gone wild, today it's AlCo!

Anyway,  I mentioned Judge Seeman previously. [insert joke about his name here.]  Here is his booking photo which makes me very sad:

Rumor has it that Judge Seemy walked off the bench where he was arraigning people on criminal charges to surrender himself to the DA and law enforcement in his chambers.  The government's  2 year investigation [unheard of in a nonhomicide state case] culminated in felony charges against Seemy for elder abuse, perjury, 28 other felonies, and 2 misdemeanors (32 total charges).  All the charges related to financial transactions where he allegedly took, by one means or another, millions from his poor (well not literally poor) old lady neighbor.  She's dunzo (read: dead) now.

Today, Judge Seeman pled no contest to felony perjury and felony elder abuse.  The remaining 28 felonies and 2 misdemeanors were dismissed.  His expected sentence in a case where he allegedly unlawfully put assets in his name or physically removed from this person's home property and assets worth MILLIONS of dollars: just a lil probation. I use the term allegedly here because I do not know which transactions he admitted to.

Now, the DA, Nancy O'Malley, wants everyone to be clear that this is THE HARSHEST form of probation anyone has ever had! News sources quoted her as assuring the public that he is "not a free man" and is subject to the "extensive terms and conditions" of said 5 year felony probation. Newsflash, if I had a client facing 32 felonies for stealing millions of dollars, I'd pull a Mr. Strong and shit my pants in court if they offered him probation.  So I'm sorry dear DA, I ain't pickin up what you're puttin down.

I'd love to see these "extensive terms and conditions" and how they compare to the terms that EVERYONE on felony probation must consent to. But, I do not have the time to stop by alco and look at the court file. WINK WINK JJC reader in alameda county, check dat court file, scan that shit, and send to me!!! I suspect the terms are like dont commit a new offense, dont be a judge, dont be a lawyer, pay restitution, 4 way search clause. Sign here.

So, there is this question which is, if you are a defense attorney should you always be happy when someone gets no jail time? When someone gets acquitted? And if not, how do you justify that?

Ill tell you why I am moderately annoyed by this result.  We fight oh so hard to get judges, das and cops to understand that our clients made a mistake, that despite their worst acts, they have beating hearts, they have families, they have redeemable qualities, that they are human.  We beg for mercy. We beg for a second chance.  And, many times, often when we are representing a client we feel a lot of empathy for and almost never when we are representing a client that we personally dislike (the murphy's law of criminal defense), these judges, das, and cops, think that justice requires just a lil bit of time in the joint (often times, a lot of bit of time in the joint). #bringingbacktheterm"thejoint".

So, when a rich white judge rejects our begs for leniency, breaks the law and no one thinks his ass needs to spend just a lil bit of time in the pokey, it is, well, kind of annoying.  Insult to injury is that this person is not just any person. This person was entrusted in a position of power, a major position of power.  His job was to send other people to prison for the very law he was simultaneously breaking.  I'd love to see statistics on the average sentence he gave to people with 32 felonies or people convicted of felony perjury e.g. welfare fraud involving millions or people convicted of elder abuse fraud.  Alas, this isn't federal so we can't do that research very easily.  Judge Seeman breaking the law, especially by using his power and knowledge of the legal system to perpetrate the offense, is all that more egregious than our clients who never promised anyone they'd be choir boys.  Except our priest clients.  But that's neither here nor there.  Of course, the flip side is he can argue it is unlikely he will reoffend.  We argue that too, often, and it falls on deaf ears.

One more thing that pisses me off. This mother fucker mfer (better mom?) got PAID over $100K from our lovely little taxes AFTER his ass was arrested.  I'm all for the presumption of innocence.  I am not pissed that he got paid. I'm pissed that Nancy O'Malley said this: "Seeman has paid for his breach of trust as a judicial officer and, he has paid for his financial abuse of the elderly victim who has since passed away."

Um, unless I'm  misreading the news stories or these reporters suck, no where have I read that part of the "extensive terms and conditions of probation" included repaying the taxpayers for the $130k that went straight to Seedy's Seemy's pocket.  Alls I seen was shit about paying the dead lady's estate significantly less restitution than the prosecutor alleged was the loss figure (approximately $300k versus mcmillions).

At the risk of overusing this phrase, Dear Nancy O'Malley, we, as taxpayers, are still alive. How about you restitute (real word?) our wallets? Or how about you make him pay that money with one of those giant checks made out to you then use it for a training on "why we should show the accused mercy."

JJC Verdict:  Dear Judge Seeman, Good luck.
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Dear Judge Castenellos (and JJC): Big Mistake, Big, HUGE

As a defense lawyer there are only three better words in the English language than "not guilty."  They are, in order of frequency of actually hearing them: "dismissed" (sometimes, a lot more frequently on the day of trial in misdemeanor land); "granted" (assuming it is in response to your motion, in which case you can expect to hear this a few times a year) and "reversed" (almost never).  Today, straight outta the first district, reviewing an alameda county murder conviction, that almost never thing happened.

Long story short, the defendant got beat up by the victim's friend, Ortiz.  The victim was with Ortiz when this happened. It was disputed whether the victim participated in beating up the defendant. The defendant went to his car. He got his gun.  The victim approached the defendant. The defendant said the victim reached for the gun. The defendant shot. Once. Victim died.  The coroner said the evidence was consistent with the victim reaching for the gun.

Note, the jury rejected self defense and imperfect self defense.  They convicted the defendant of second degree murder.

Pretty basic law is that if you kill someone because you were provoked by something that caused intense emotion that clouded your judgment (and a reasonable person would be similarly influenced by that provocation), you are guilty of manslaughter not murder.  (See CALCRIM No. 570).

It was agreed that right before the defendant shot the victim, the victim's friend beat the shit out of the defendant while the victim was present.  Obviously, that the victim beat the shit out of the defendant right before shooting the victim, at the very least, raises the issue of whether the defendant was reasonably acting under influence of his emotion which clouded his judgment.  If he was, he shot the victim out of a heat of passion and is not guilty of murder, only manslaughter.  Pretty basic law. We're not talking about the rule against perpetuity here.

Here though, Judge Castenellos (ALWAYS NAME NAMES But be sure you name the right name!!! thank you for the correction JJC reader) (I wish I could find her picture online to stamp REVERSED on, but couldn't find one)  refused the defense attorney's request for a provocation instruction, finding that the evidence did not support it. So the court of appeal sent Castenellos this message:

August 1, 2013

Via Published Opinion
Judge Castenellos
Alameda County Superior Court
At that Big Ole Courthouse by The Lake
Oakland, CA 94612

 Dear Judge Cartwright:

[youtube http://www.youtube.com/watch?v=IfxLyH80Cic]

Very truly yours,

The Court of Appeal.

Of course, the attorney general said the evidence of provocation heat of passion came from self-serving testimony: that of Thomas. Sidenote, I think that it is super unfair to argue that a defendant's testimony is "self-serving."  No shit, of course anytime he testifies in his own defense it is self-serving.  But that doesn't mean it is false. You can't infer it is false from the mere fact that his own testimony helps him because almost any time he testifies it will be to help himself.  Thats like us arguing to the jury that the DA's entire case was self serving. Anyway, the appellate court skipped that point,  and simply said it was clear that, even assuming it was self-serving, there was a fight just before the murder, the defendant got hurt, the defendant was clearly still upset about it, then the dude got shot.  That, on top of the so-called "self serving" testimony of the defendant about his state of mind, meant that "the obvious deficiency in the instructions given by the court is that they are bereft of any indication that the jury could consider Thomas's emotional excitement as a factor that could reduce his criminal culpability." So. Fucking. True.

A word about the procedural history and shout out to Thomas' public defender.  Rarely is the procedural history interesting.  In this case, it is.  Initially, the appellate court considered this argument, found it was error to not instruct the jury on this issue, but held the error was harmless.  They applied the state law test (Watson) for prejudicial error which asks: "whether it is reasonably probable Thomas would have received a more favorable verdict if the jury was properly instructed".

The case went up to the Supremes who were like Dear Appellate Court (I'll spare you the pretty woman youtube) you applied the wrong standard.  The rule is that, according to the federal constitution, if a defendant raises the issue of provocation as a mitigation to murder in a state where provocation mitigates murder to manslaughter, he is constitutionally entitled to be found not guilty unless the prosecutor proves beyond a reasonable doubt that the provocation doctrine was inapplicable.  Why does that matter? Because things. just. got. federalized.

When there is a violation of the federal constitution, the error test changes. It is much harder, at least in theory, for the government or the court to contend that the error was harmless. The test for a federal constitutional error is  Chapman (Chapman v. California (1967) 386 U.S. 18, 24).  That test is not whether there a bat's chance out of hell  (another expression that I regularly use that I do not think is actually an expression) that the verdict would have been the same.  The test is: "whether it appears beyond a reasonable doubt that the asserted error did not contribute to the verdict."

Interestingly, the appellate court said look, we can't say how this would have affected the verdict.  The evidence clearly shows he, at the very least, is guilty of manslaughter, so the conviction for second degree murder is REVERSED. Dear DA, retry him ASAP or manslaughter stands.   Love, the appellate court. (Couldn't find a youtube for this; dear readers, make one just in case this comes up again).

The procedural history is worth mentioning for two reasons.  First, as a very new appellate attorney who doesn't know that much about appellate law but trying to learn, I sort of felt like this whole "time to see if there was prejudice" is bullshit.  I felt like courts of appeal will decide what they want to do and then say the error is prejudicial or not.  I am so happy that my preconceived notion has been challenged at least in this case.

Second, major props and big time shout out to the federal-constitution-preserving-PUBLIC DEFENDER (public defenders: infinity Yglesias: 0) Jim Cramer.  Disclosure: I do know Cramer.  Nothing makes me more happy than seeing an unlawfully acquired conviction reversed, but what comes close is when the reason for the reversal is because of an amazing job done by an amazing attorney with a great heart.  In the short time I've been an attorney, I've seen this happen 2 times already on 2 murder convictions.  Well done Cramer.  Well done Jim "Valiant Defense Counsel" Mann. I'd post a photo of Cramer with a cape and the words "HERO" across his chest, but I don't have his picture either!

Well done Alameda County PDs. I believe, beyond a reasonable doubt, that the public defender's office there have only more great things to come.

CORRECTION:  sometimes we (let's be honest, I) make mistakes, in some ways like judge Castenellos made a mistake in this case. No, I did not fail to instruct a jury properly in a murder case.  I erroneously named judge Cartwright in the initial post of this article. Like my botched OJ Simpson prediction, I was DEAD wrong. A JJC reader nicely corrected me without saying "Dear JJC big mistake. big. huge." and linking a pretty woman clip.  Thank you for your kindness. If only I were this forgiving of judges who, just like me, get it wrong some times.  Luckily for the world, no one goes to prison for 40 years when I fuck up on my blog. I think. In any event I apologize and promise to strive harder to get it right next time. Thank you for your patience!!

LIVE Ariel Castro Sentencing

Folks are saying that Castro is expected to speak.  We will see. Watch here. Do not understand why they are taking evidence when he admitted guilt for a given sentence. What am I missing?

Reading, Watching, Wannabe Watching & Listening

Reading:                                       

Watching:

Wannabe Watching:

Listening:

notorious thugz ... classic

 

(support JJC by buying amazon products from links herein! [4% of purchased items to JJC when shipped])

Court ordered therapy three times a week for 18 months!!! Doesn't the 8th Amendment prohibit that?!??!

Poor L-Lo. The good news: she completed court-ordered rehab.The bad news: the rehab place sent a letter to the judge requesting that he order she do therapy three times a week, either in person or via skype, for 18 months. 

That is a lot of therapy!!! And if she's doing it right, that is a lot of emotional energy.  

Cruel and Unusual?  To quote my favorite phrase from law school: "to ask the question is to answer it."  My husband says that doesn't make sense. So, I'll answer my own question.  I don't know if it is cruel and unusual. In all seriousness, of course it is not.

But, poor L-Lo has been through so much in court.  

Just cut the ginger a break already!!!

Which reminds me of this: (not safe for work!! and also sad):

 Sidenote, in my LA days I met this guy at a club and, as expected, he was a total asshole.

P.S.  Dear Shawn Holley, you know you are going to be on TMZ, ya think you coulda wore a suit???

P.S.S. Shawn Holley got her start as a public defender.  More proof that Yglesias is a moron. And you know JJC isn't scared to tell him.  

:

Anyone starting to feel bad for him? I mean, he did get publicly shamed on above the law.  Ok, I'll leave the poor guy alone. Startinnnnnnnnnnggggg Now!

Mo Contraband Mo Problems? Pig in the pokey and your Daily Defense

EXTRA EXTRA READ ALL ABOUT IT:

This week's pig  in pokey leads to a very law-nerdy blog post about the "any=many" rule that if your client has hella contraband he can only suffer one conviction, not hella convictions. (Unless, we're talkin bout sawed off shot gunz or destructive devices). Read more below (citations included).

Pig in the Pokey
Former CHIEF probation officer of San Mateo County Stuart Forrest went down big time (i.e. the jury deliberated only an hour) on two felony counts of possession of child pornography. He faces 3 years 8 months when he is sentenced on September 20, 2013.  Seems kinda low considering the average federal sentence for the same conduct in recent years is almost twice that.  (USSC (2012) Report on the Continuing Impact of United States v. Booker on Federal Sentencing, Analysis on Child Pornography Offenses, at p. 116.) In any event, that he suffered two convictions caught my eye. Why you ask? Check this out:

Daily Defense
There is a lovely rule that I refer to as the "any=many" rule. It is that you cannot be convicted of multiple counts of possessing child pornography just because you had several different images or videos, so long as you possessed them at the same time.  (People v. Hertzig (2008) 156 Cal.App.4th 398, 404.)

As far as I can tell from the cases, the basis of the rule is statutory interpretation, not constitutional. Sidenote, if there is a constitutional basis that justifies this please let me know. This should not be confused with the bar against multiple sentences for the same conduct. We are talking about multiple convictions here.

Here is the statutory interpretation logic: In many statutes banning things, the legislature uses the term "any."  For example, a "person who knowingly has in his or her possession . . . any controlled substance" is guilty of a felony. So, the logic goes, it is unclear if "any" means "many" or "one."  Because if it means many (or more than one), then the statute essentially reads "any person who knowingly has in his or her possession . . .many controlled substances" is guilty of a felony. In other words, you possess. many controlled substances, you are guilty of only one felony. Great rule.

Here are just a few cases where the courts said hella contraband=only one conviction:

• multiple blank checks (People v. Bowie (1977) 72 Cal.App.3d 143).
• multiple pieces of property with altered serial numbers (People v. Harris (1977) 71 Cal.App.3d 959).
• multiple (AND DIFFERENT: heroin and meth) controlled substances in the same location (People v. Rouser (1997) 59 Cal.App. 4th 1065) (note, this was due to the same statute banning "any" controlled substance in a prison without differentiating between heroin/meth).
• multiple weapons of the same type at the same time (People v. Rowland (1999) 75 Cal.App.4th 61).

Seems pretty straightforward right? WRONG!

Now here's the bullshit that we call the "criminal justice system."  

The first bummer, though expected, was the legislature fixed the many any issue regarding sawed off shotguns.  

There was a case in 1989 (People v. Kirk (1989) 211 Cal.App.3d 58) where a dude had 3 sawed off shotguns and the appellate court was all "look at the statute to see if it allows for multiple convictions for each item of contraband.  the statute essentially says 'if you possess any saw offed shotgun yous guilty of a felony!' so the court says "any" is ambiguous--it could mean one, it could mean many.  rule of lenity. badabing badaboom, 3 for 1 deal, 3 sawed off shotguns, 1 conviction." (and that's a quote!) 

The legislature went ape shit.  Artist rendering:

They passed legislation that said 1 unit of contraband, 1 conviction, 2 units, 2 convictions, 3 sawed off shotguns=3 convictions.  But, they didn't go through all the statutes to make clear whether there could or could not be multiple convictions for those statutes.   

OLD RULE

NEW RULE

You'd think that the rule is pretty clear.  It is stated in many cases over many years and the legislature is clearly aware of it:  if the statute says "any" then no matter how many pieces of contraband you have at the same time you can only get one conviction, unless the legislature goes bananas and changes the statute.  Right?

WRONG!!!

Check out this fakakta opinion that says well here, as opposed to in all the other statutes, when the legislature used the word "any" they meant singular unit (what??) and rule of lenity shmenity because this is not ambiguous.  (People v. DeGuzman (2003) 113 Cal.App.4th 538, 548.)  I.e. If D has hella destructive devices then D gets hella convictions.  (Id. [use of the word "hella" added.])  Double You. Tee. Eff. (read: wtf).

Bottom line: Anytime you see multiple counts charged for multiple items of contraband that your client allegedly possessed (ideally at the same time) this is definitely a viable issue to raise. I can't explain DeGuzman though. If you can, email me or comment!

Hell has frozen over: mea culpa

Well JJC's expert opinion that the likelihood of OJ getting paroled was equivalent to a snowflake's chance of staying frozen in hell
(is that a saying) was WRONG!!! DEAD wrong. That mfer was just granted parole. Lucky Duck.

Dear readers. I am so sorry. I cannot explain this result!!!


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BREAKING NEWS

Lindsay Lohan is in court for proof of completion of rehab.

Live stream here.

Dear Topshop: You can't just change the caption, you have to change the photo

This one is kinda funny.  So, Topshop made this tank:

That no one with any style would wear this tank is not the funny part.  Topshop bought the rights to this photo, but it apparently did not occur to them that they needed permission from, or to compensate, Rihanna for using her image.

Here is the funny part.  According to a lil fashion site JJC hearts called racked: "after the singer, who didn't like her name and image being used for a commercial purpose without her knowledge or consent, complained, Topshop's Web site description changed to 'Photographic tank with photographic motif of a girl wearing a headscarf.'"

Dear Topshop: I don't think she was pissed about the caption.

Yada yada yada we have Rihanna v. Topshop and a UK judge ruled in Rihanna's favor.  My guess is the price of that tank is bouts to skyrocket!

JJC VERDICT:  Rihanna wins this one hands down.  Also, who would wear this tank anyway?

Sidenote, I used to follow Rihanna on instagram but had to stop because I was tired of her stripper photos, half naked selfies, and weed shots.  It is kind of crazy what she instagrams.  

$1 million a day for kid who cops forgot in cell

A UC San Diego student just got $4.1 million settlement from the feds after they majorly effed up.  What had happened was he was arrested by the DEA after he was in the wrong place at the wrong time (he wasn't a suspect, no charges were planned to be or actually filed against him, he was just at his friends house when it was raided).  The DEA locked him up and then forgot he was there. Left him there for 4 days.  He drank his own urine, hallucinated, and wrote a goodbye note to his mommy in his blood. Sad face.

JJC Thinks:
1) I haven't gone 4 days without food or water but I am surprised he had to resort to drinking his own urine that quickly;
2) Obviously this is a terrible accident and we should expect more from the feds;
3) $4.1 million is a little more than I think the case is worth. The going rate when the police murder an unarmed person of color in Oakland is between $0 (see e.g. Derrick Jones) to $650k (see e.g. Mack Jody Woodfox) to $1.5 million (See, e.g. Gary King, Jr.) to $1.7  million (see e.g. Jerry Amaro III).  This kid survived. Traumatized, sure.  Spent a week in the hospital, terrible. But the kid is alive.  On the flipside, maybe Oakland law enforcement should start paying more for murdering people.  Forgotten in a cell for 4 days? $4.1 million.  Gunned down by the police? More than $4.1 million.

VERDICT:  Feds, try not to forget about people you lock up! Oakland Law enforcement stop killing people!

JJC hearts Rescues!

It is no secret that JJC hearts pembroke welsh corgis and that JJC is a proud parent to the world's cutest sweetest pembroke welsh corgi.

That said, JJC does not endorse puppy mills, backyard breeders, or buying from a breeder when you can rescue a corgi or any other dog in need.

Thus, JJC wants to give a shout out to the Golden Gate Pembroke Welsh Corgi Fanciers Rescue. And, per a JJC twitter follower, a shout out to Hearts United for Animals, a no kill shelter in Nebraska that rescues and brings back to health dogs from across the country.

If you ask me, my husband and I rescued Jane Doe. She was one year old when she came to live with us.  She lived with a really nice family, but they had 2 older evil corgis who were very mean to Jane Doe. If you can't tell, Jane Doe is the cutest sweetest corgi ever.  Here is a photo from the first day we met her:

 These two older corgis were jealous.  So Jane Doe had to live outside in a fenced area while the older corgis lived inside.  It was kind of unclear why the woman had Jane Doe but wanted to give her up after less than a year.  I believe she wanted to show her at dog shows (I'm telling you, this bitch [Jane Doe] is beautiful) but she is very timid and also has a few defects on her eye.  So, she wouldn't make a good show dog. She has, however, made the best companion we could ask for. We actually call her goody four paws because she is such a good dog.  She has a best friend, a 10 year old golden retriever named Lucy Lnu.  Lucy Lnu is the sweetest dog in the world after Jane Doe.  But, she can be mischievous at times. If Lucy Lnu gets in trouble,  Jane Doe will run right up to you as you're scolding Lucy Lnu as if to say "look at me, I didn't do anything wrong!" Jane Doe is very innocent.

Jane Doe and Lucy Lnu Snuggling in their Doggy Hammock on a Road Trip

This Shit Breaks My Heart!

I got an email this morning subject line: Urgent. It was a lead for JJC. I bit. Oy Vey.  Get ready for this one -- a dirty dirty opinion outta the First Circuit.  NOT for the easy-queasy.

A man with not very strong bowels, ironically named Strong, entered federal court in maine to do sum bidness. 

He realized in line for security that he was pooping his pants.  Suffice to say, the man has some medical issues.  The deputy rushed him to the bathroom wherein he had explosive diarrhea.  We are not talking about some watery poop in the toilet people.  We are talking about something like "spilled spaghetti sauce and there's meat" as far as the eye can see. Poop in the toilet. Poop on the walls. Poop on the floor. Poop on the dispensers. Poop. Poop. And more Poop. Now, Strong disputed the strength of the explosion.  He said there were exaggerations about the placement of the feces, that it was entirely unintentional, and the mess came from his failed attempts to clean up after himself.  

This poor man not only suffered the humiliation of publicly pooping his pants, having explosive diarrhea, but then, he was charged with three federal crimes (willfully damaging federal property, creating a nuisance on federal property, creating a hazard on federal property),was convicted after a bench trial (you don't have the right to a j/t when you poop your pants) (kidding, when max sentence is 6 months) and was sentenced to 7 days in jail.

On appeal, the 1st Circuit upheld his conviction finding there was sufficient evidence.  It goes without saying that it was undisputed that there was sufficient poop. The question on appeal was whether there was sufficient evidence that this poor guy was acting willfully. There was also dispute over whether the government needed to prove willfulness or knowledge for two of three crimes. That's neither here nor there.  At the end of the day a dude walked into a court house, had explosive diarrhea and then got sentenced to 7 days in jail for said diarrhea.  Not what Pooh Bear envisioned when he talks about the rumblies in his tumblies.

The majority noted that this guy lost his social security benefits case so he had a motive.  I did some digging after a coworker aptly noted that this explosive diarrhea issue or underlying medical issue that caused it (he said it was because of heart medication?) may or may not have been the basis of his benefits claim. Because, if so, I'd say he's got a good appeal for a denial of benefits.  Alas, the claim was for benefits for a child.

In any event, the majority's logic goes like this: guy with a grudge has explosive diarrhea which they say may very well have been unexpected and not willful. Guy goes to bathroom. Guy gets a brilliant idea:

 "I am going to capitalize on this moment where I have explosive diarrhea everywhere including all over my clothes, and I'm going to smear it all over the walls and bathroom to get back at dem feds for denying my child social security benefits.  That'll teach em!"  I mean. to me, it seams like a stretch.  But, apparently not to dem judges.

Well, at least two of them. The dissenter not only came out on the right, just, side, he did so funnily.  Here are a few highlights:

"The momentous importance of this case surely forecasts its deserved place in the annals of federal prosecutorial history. Before us is an appeal from a conviction of a citizen who was prosecuted for soiling federal property after he had the misfortune of involuntarily losing control of his bowels while on the premises of the United States District Court for the District of Maine." [emphasis on funny words added.]

and later:

"Strong's sufficiency-of-the-evidence claim is unpreserved, so he must establish plain error, and the evidence is reviewed to determine if there was “clear and gross injustice.” United States v. Hicks, 575 F.3d 130, 139 (1st. Cir. 2009) (quoting United States v. Gobbi, 471 F.3d 302, 309 ( 1st. Cir. 2006)) (internal quotation mark omitted); see also United States v. Concemi, 957 F.2d 942, 950  1st. Cir. 1992)." [emphasis of funny words added.]

I'd say this injustice was VERY GROSS.  (too easy).

If you aren't so grossed out thus far and are still reading, here is a quote from his  testimony makes me feel really really sad:

"Q. What was the nature of the excrement that erupted when you lost control of your bowels?

A. It was liquid and there was pieces in it.

Q. Okay. And what did you do after it happened?

A. The Security personnel walked me to the bathroom. I walked into the bathroom, I removed my jacket, I put it in the far corner, same jacket I wore today. I put it in the corner.

Q. What did you do next?

A. Then I removed my trousers, I removed my socks.

Q. What were the condition of your trousers and socks?

A. My jeans were just completely covered in feces on the inside. My socks were covered with feces, my legs, you know, had feces all right down—down my legs and on to my ankles. I took a paper towel—

Q. Was it dripping down your legs and ankles?

A. All the way to my ankles.

Q. And what did you do with the clothing when you took it off?

A. I put the jeans on the floor, I mean this is so prescribed I just don't—I just put it right at my feet there. And then the boxers I took off and I put in the trash.

Q. And why did you throw the boxers in the trash?

A. They were destroyed, there was no—I mean, how could I carry them home? What was I going to put them in? I mean, it was covered in feces, there was—I mean, what was—I mean, I had my briefcase, I mean, what was I supposed to do with them? I threw them in the trash.

Q. Okay. Did you at any—did you at any time reach for paper towels?

A. Many times.

Q. What were you doing with the paper towels?

A. Cleaning my legs, my back side, it was on my sides, I mean, because it was—it was a mess, it was just a mess.

Q. Did you attempt to clean your jeans?

A. A little bit, I mean, I took paper towel, you know, through, you know, through them but I just—it was futile, it was just—

Q. At any time did you sit on the toilet?

A. A couple times.

Q. Would you explain what happened with you sitting on the toilet, please?

A. Well, I cleaned myself up, I started to urinate, and I stood up again and I kept wiping myself and then I sat down to put my socks back on. I didn't have any boxers at that time, so I put my socks back on. I put my jeans back on, you know, I've been—I don't know if you've ever had an incident in the kitchen where you have something spill or something, you're grabbing everything and anything trying to mop up milk or—I don't know if you've ever spilled spaghetti sauce and there's meat, you're trying to get it up as quick as you can. And that's—basically it was just like this frenetic pace, but it was repulsive, I mean, the smell was—and I was embarrassed, I mean, here I had used the bathroom in my pants, a 50–year–old man and I was in a federal courthouse. It was very, very embarrassing. So, I mean, so it was a frenetic pace just to clean myself up. So I did the best I could . . ."

Triple sad face.

JJC VERDICT:  Shitty opinion. Poopy prosecution.  Loose Bowel Movement.

Daily Dose of Juice, Justice and Corgis

Today's Juice

I finally got my hands on the 33 page (that is pretty long) indictment against RHONJ Theresa Giudice and her hubby. It ain't pretty.  And the pulitzer goes to BuzzFeed for the best coverage. Even I don't have the patience to analyze the indictment like that! Sadly (?) Joe Giudice is not a USC (united states citizen for those not used to regularly filling out client interview forms) so he could face deportation if convicted, in addition to prison.

The long and short of  it is they are accused of lying to get loans (e.g. she allegedly reported income from a job she didn't have and also allegedly presented a fake tax return) from as far back as the early 2000s.  They are also accused of lying in bankruptcy filings and hiding money and assets from creditors in those proceedings.

*UPDATE*She hired this guy to defend her. Former AUSA. Member of all the right associations and organizations.  Super Lawyer. Clerked for a federal judge. Don't know anything about him besides what I read, but what I read seems like he's legit.

JJC VERDICT: I mean I am not a fan of prison or deportation. At the same time, maybe it is because I have seen  how mean Teresa and Joe are on the show, or because this is essentially fraud for pure greed--to keep up with their ridiculously lavish lifestyle--but I really don't feel bad for them.  I don't know, if you feel differently and think I should too, let me know why. I'll keep my pitty-meter open. Tip for Teresa: when you get upset, you cannot flip counsel table at the jury.

Today's Justice

Rough day for contra costa county judges.  You heard here first that Judge Maddock (pictured above...to be fair some defense lawyers have said good things about him in the past, but his ruling in this case was truly terrible) was reversed.

On the same day, Judge Bruce Mills was publicly admonished for judicial misconduct by California's Commission on Judicial Performance.  His offense? His son got a ticket for smoking, his son was supposed to do community service for said ticket, his son failed to do community service (in his defense he was in an out of state rehab), so ole papa Mills walked down the hall and badabing badaboom his son was good to go with a different commissioner who accepted Judge Mills' representation that his son was in rehab as proof of completion of the community service.  So how did he get caught? Well, what had happened was he went to his son's arraignment on the ticket with him and that commissioner had beef with Judge Mills over some kind of Judge race that I was too bored to read the details of. Long story.  Judge Mills was so bitter about the beef that he expected that commissioner to recuse himself.  When he didn't, Judge Mills did not paper him. So that commissioner told the kid to do 20 hours of community service. The kid failed to do it. The judge set an OSC re contempt (apparently how something like this is enforced because it was infraction so no probation.)  The commissioner was obviously personally interested in the case and likely looking forward to the court appearance of the kid after he failed to do the community service.  But, he happened to be gone the day of the court appearance and when he asked the fill-in commissioner what happened, she told him the whole story. WHOOPs.

I'm not going to lie, one night I was super bored and stumbled on the judicial commission's website of published disciplinary opinions.  And you thought the bar discipline section of the daily journal was juicy? This stuff is SUPER entertaining.  Highly recommend adding to your favorites so when you're in court with nothing to do you have some great reading material.

JJC VERDICT: Dear Judge Mills, super petty, not worth it, just play by the rules next time. Dear commissioner dude with a grudge: INTERESTING. I'm guessing your snitching on Judge Mills is going to hurt, not help, that beef.

P.S. while I was on their site, I noticed that Judge Seeman (finally) resigned in March because of this.His mug shot makes me sad. double sad face.

Today's Corgi

My Corgi, who I will refer to as Jane Doe henceforth because, no joke, my husband worries about her privacy.  I kind of wish I really  had named her Jane Doe though, kind of an awesome name for a beautiful corgi like mine.

JJC VERDICT:  Jane Doe is a sleeping beauty.

How a Crim lawyer gets organized

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Reversible Error to Deny D's Motion for DA to Run Cop's Rap Sheet!!!

Dear Judge Thomas Maddock, your ass just got reversed!!!

This one straight outta the trenches of Contra Costa County.   Wohooo!!!!!!!!!!!!!!!!!! Here are the highlights:

"The trial court . . . denied appellant's discovery motion to the extent it sought Officer Stonebreaker's birth date and rap sheet.

....As a matter of due process, a defendant is entitled to discovery of all material exculpatory evidence, including impeachment evidence. (Strickler v. Greene (1999) 527 U.S. 263, 280-281; Brady, supra, 373 U.S. 83; People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305, 1314.) Such exculpatory evidence includes any misdemeanor misconduct involving moral turpitude disclosed in a witness's rap sheet, as well as information relating to whether the witness has pending criminal charges and whether he is on probation. (People v. Santos (1994) 30 Cal.App.4th 169, 178-179 (Santos); Hayes, supra, 3 Cal.App.4th at p. 1244.) Additionally, Penal Code section 1054.1 provides “The prosecuting attorney shall disclose to the defendant or his or her attorney all of the following materials and information, if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies: [¶] . . . [¶] (d) The existence of a felony conviction of any material witness whose credibility is likely to be critical to the outcome of the trial.

The People correctly note rap sheets themselves are not discoverable. (People v. Roberts (1992) 2 Cal.4th 271, 308 (Roberts); Hill v. Superior Court (1974) 10 Cal.3d 812, 821.) While the prosecution need not disclose Officer Stonebreaker's actual rap sheet, it must disclose the record of a felony conviction and any misdemeanor conviction involving moral turpitude. (Santos, supra, 30 Cal.App.4th at pp. 178-179 [applying People v. Wheeler (1992) 4 Cal.4th 284, 295-296, and concluding misdemeanor misconduct involving moral turpitude must be disclosed “when such information is requested by the defendant and is in the prosecutor‟s possession”]; Roberts, at p. 308 [court erred as a matter of state procedural law by failing to order disclosure of all felony convictions to the defense].) The People concede as much when they state “appellant did have the right to information relating to [Officer Stonebreaker's] convictions of any felon[ies] or misdemeanors involving moral turpitude” if the information was “ reasonably accessible‟ to the prosecutor.”

Here, “[n]ot only does the prosecutor have reasonable access to rap sheets, he is the assigned doorkeeper. Since the prosecutor has reasonable access to rap sheets, and he has "possession" under [In re Littlefield (1993) 5 Cal.4th 122], . . . a prosecutor shall on a standard discovery request inquire of „the existence of a felony conviction of any material witness whose credibility is likely to be critical to the outcome of the trial.‟ ” (People v. Little (1997) 59 Cal.App.4th 426, 432-433, quoting Pen. Code, § 1054.1, subd. (d)].) In addition, “the birth date of a police officer is covered by Penal Code section 832.8 and can be discovered only by means of a Pitchess motion. (Fletcher v. Superior Court (2002) 100 Cal.App.4th 386, 401-402.)"

Juvenile In Justice

Dear WPSU, thank you so much for pointing out this video to me.  Photographer and researcher Richard Ross visited juvenile justice centers across our country to take photographs. Simple enough.  But oh so powerful.

Ross tells the stories of the voiceless.  Stories about the outrageous reasons they are there (e.g. stealing a bagel).  Stories about the more and deeper outrageous reason they are there (e.g. they have been sexually and physically abused, their parents are locked up). 

There are also heartbreaking videos. See e.g. this one about a kid in solitary confinement. Which, unsurprisingly, causes kids to kill themselves.  Yes, we as a "civilized" society put CHILDREN in solitary confinement.

We also impose gang injunctions on 6th graders.

You can look up the juvenile hall in your jurisdiction to see if he visited it here.

Here are upcoming and current exhibitions and lectures.

Finally, you can support him and me (disclosure: I get 4% ($1.20 if you buy via this link) by buying his book:

 

More info:

web: http://www.juvenile-in-justice.com/

email: info@juvenile-in-justice.com

phone: 805-893-7205

facebook.com/juvenileinjustice

twitter: @juvenileinjust

JJC has MANY plans to post about juvenile (in)justice issues including defenses of the day to use in juvenile court that are based on due process and the equal protection clause. I am still in the research phase though.  So, look out for them in the near future.