Tuesday, June 23, 2009

Calif. Sen. George Runner curries favor and gets a payback

California lawmaker's deal kept paroled sex offenders out of district
By Andy Furillo
The Sacramento Bee
A California lawmaker arranged an improper deal with state corrections officials to stop an influx of parolees into his district 10 months before voters approved "Jessica's Law," the 2006 ballot measure he wrote to restrict where paroled sex offenders could live.
In what state Sen. George Runner characterized as a "side agreement" with the California Department of Corrections and Rehabilitation, the prison and parole agency said it would limit assignments of released offenders into the Antelope Valley to those who had "historical ties" to the area.
The agreement created an added layer of anti-parolee protection for the fast-growing desert valley communities on the northern fringe of Los Angeles County.
State law mandates only that parolees be returned to the county of their last legal residence. In vast Los Angeles County, for instance, an inmate from South Central Los Angeles could be paroled to Lancaster.
CDCR officials, saying that the deal violated the law, terminated the agreement this spring.
"When we took a look at it, we said we can't treat offenders in this county any different than offenders in any other county," said Terri McDonald, the CDCR's chief deputy secretary for adult operations.
"Jessica's Law," which bars sex offenders from living within 2,000 feet of schools or parks, has turned the vast majority of the state's big-city urban landscapes into no-go zones for the measure's targeted population. One result of the initiative has been a huge increase in the number of sex offender parolees who say they are now homeless, spurring a key state oversight agency to call for a "rethinking" of the measure's housing restrictions.

Wednesday, April 22, 2009

Balancing the budget on the backs of infants and the mentally ill

Santa Barbara, CA-- The Santa Barbara County Board of Supervisors is taking a strong position against two upcoming initiatives on the May ballot. Supervisors are taking a stance against the propositions that, they feel will harm the most vulnerable population in our community: children and mental health patients.Proposition 1D and 1E are statewide measures that will be a part of the May 19th Special Election. But, Santa Barbara County Supervisors do not want these initiatives to be a part of the state budget balancing equation.

Friday, April 3, 2009

Overly Aggresive Prosecutors

Published: April 2, 2009
Chatham, N.J.

THERE is both good news and bad in the Justice Department’s decision to move to dismiss all charges against former Senator Ted Stevens of Alaska, who had been convicted on seven felony counts of ethics violations. The good news is that Attorney General Eric Holder has done the right thing, acknowledging that his department’s Public Integrity Section, which handles corruption cases, committed egregious misconduct. The bad news is that the broader problem of prosecutorial excess remains unaddressed.
The Stevens case did not occur in a vacuum, and it should not be treated as an isolated instance. Take, as examples, just a few recent cases.

Last year, the City of New York paid $3.5 million to Shih-Wei Su, who had served nearly 13 years in prison on charges related to a shooting at a pool hall in Queens. Judge Guido Calabresi of the United States Court of Appeals for the Second Circuit found that “the prosecution knowingly elicited false testimony from a crucial witness.”

In the Duke University rape case of 2006, the reputations of several students were destroyed by a county district attorney pursuing political ambitions, and who was later disbarred and convicted of criminal contempt.

In 2007, the United States Court of Appeals for the Seventh Circuit took the extraordinary step of ordering the release of a convicted Wisconsin state employee during oral argument; it then reversed her federal conviction, which had been based on the government’s overreaching application of the “theft of honest services” corruption statute. She later said that the United States attorney, who had been appointed by President George W. Bush, offered her leniency if she would cooperate in a case against the governor, a Democrat in a tight re-election campaign.

In 2005, a veteran New Jersey county prosecutor was driven from office after it was leaked to the press that he was under federal investigation for obstruction of justice. No charges were ever filed.

In 2004, a federal judge threw out the convictions of two men accused of being part of a terrorist “sleeper cell” in Detroit after it was discovered that federal prosecutors had deliberately withheld potentially exculpatory evidence from the defense.
What’s going on here? Equally important, beyond the Stevens case, what can be done?
As the examples above show, prosecutorial misconduct takes many forms, from failing to disclose critical evidence to disclosing information illegally to the press to overreaching in the exercise of the prosecutor’s discretion. Underlying all of them is a frightening misconception of the role of the prosecutor.
That role is not to seek the maximum penalty at every turn, nor to put together an impressive statistical tally of convictions. It is not to use the emotional pain and personal ruin involved on all sides of a criminal case to advance one’s own career or personal agenda. Prosecutors do not even share the duty defense lawyers have of providing zealous representation. The prosecutor’s only duty is to seek justice. Period.
This duty is especially important in an age like ours, when the integrity of the criminal justice process is so frequently called into question.
The presumption of innocence vanishes, these days, with the publicity surrounding an accusation. Any criminal defense lawyer has seen firsthand the humiliation and fear experienced by defendants and their families. By contrast, the reputation of the accusing prosecutor rises commensurately, creating an enormous temptation to make the press conference an essential element of the prosecution.
Attorney General Holder has a lot on his plate, but I think only terrorism policy is equally important to issues surrounding the integrity of the justice system. His goal should be to restore the imperative that prosecutors seek justice, nothing more.
One way to do that would be for Mr. Holder to forbid federal prosecutors to conduct press conferences to announce the filing of charges. The mischief done by statements like “The conduct would make Lincoln roll over in his grave,” as issued by the United States attorney in Chicago, Patrick Fitzgerald, in announcing the filing of a criminal complaint against Gov. Rod Blagojevich of Illinois, is almost incalculable. Save the rhetoric for the conviction; a simple press release setting forth the charges and reminding the public of the presumption of innocence will serve the interests of justice.
The attorney general could also seek clarity in the federal criminal statutes in order to narrow the potential for abuse of the prosecutor’s discretion. The “theft of honest services” statute — created in 1988 to counter a Supreme Court decision that politicians could not be convicted of depriving their constituents of "intangible rights" like good government and honest services — is notoriously vague, and thus prone to prosecutorial overreaching. As Judge Frank Easterbrook of the Seventh Circuit wrote in the Wisconsin case, “The idea that it is a federal crime for any official in state or local government to take account of political considerations when deciding how to spend money is preposterous.”
The Justice Department should commit to investigating all illegal disclosures of grand jury evidence and instances of courtroom misconduct, and to punish those responsible.
Above all, Mr. Holder should promote the idea that the prosecutor’s job, understood properly, is an end in itself, not a stepping stone to higher office. The powers to accuse, to arrest and to prosecute are the most fearsome conferred by our society. The abuse of those powers, historically, has been the very definition of tyranny. Accordingly, the attorney general should consider supporting a rule barring prosecutors from seeking higher office for two to five years after their tenure ends.
The motives underlying a decision to prosecute may rarely be beyond reproach, but they should always be above politics.
John Farmer, a lawyer, was the attorney general of New Jersey from 1999 to 2002.

Wednesday, March 25, 2009

IAC: Abandoning a defense?

Is defense counsel ineffective by abandoning a defense when he has nothing to lose by pursuing it?

Yesterday, the USSC unanimously said no, at least where the defense (here, NGI) had little prospect for success.

Counsel presented metal health evidence in an effort to get a verdict of second-degree murder. When the jury came back with a malice murder conviction and the defendant's parents told counsel they would refuse to testify at the sanity phase, the defense withdrew the NGI plea. The Court sentenced the defendant to 29 to life.

The Ninth Circuit reversed and blamed counsel for abandoning the NGI claim because there was nothing to lose by pursuing it.

The USSC held there is no IAC in abandoning the NGI defense where, "Counsel reasonably concluded that this defense was almost certain to lose."

Embarrassingly, Judge Thomas's opinion suggest that the defendant was lucky not to get death or LWOP, even though no specials were alleged. "Mirzayance has no complaints about the sentencing phase since he received the lowest possible sentence for his first-degree murder conviction. California authorizes three possible sentences for murder: death, life imprisonment without parole, and imprisonment for 25 years to life. Cal. Penal Code Ann. § 190(a) ( (West 1999). Mirzayance was sentenced to 25 years to life plus 4 years for a weapons enhancement." (Knowles v. Mirzayance (3/24) 2009 U.S. LEXIS 2329.)
From what I can tell, def was maxed out. Am I wrong?
Michael C. McMahon
Chief Deputy Public Defender
Writs, Appeals, & Training
Ventura County, CA

Sunday, March 15, 2009

Just 10 Seconds of your Time!

SANTA FE – Governor Bill Richardson released the following statement regarding the passage of a bill that would repeal the death penalty: “This is an extremely difficult issue that deserved the serious and thoughtful debate it received in the Legislature,” said Governor Bill Richardson. “I have met with many people and will continue to consider all sides of the issue before making a decision.”

Governor Richardson has three days from the time he receives the bill until he must take action (excluding Sunday.) Persons interested in providing their input to Governor Richardson about the bill to repeal the death penalty have two options: 1. Call 505-476-2225 and leave a message. People can urge the Governor to either sign or veto the bill, or they can leave a message with their opinion about the issue. 2. E-mail the Governor through his web site at: www.governor.state.nm.us Click on “Contact the Governor” and follow the prompts. The Governor’s staff will work through the weekend to tally people’s positions and provide the Governor with the opinions.

Legislators in New Mexico vote to repeal death penalty

Support for the death penalty is a mile wide, but only a inch deep. Consider today's wire story from the Associated Press (Edited for brevity):

Saturday, March 14, 2009
SANTA FE, New Mexico:

The State Legislature voted Friday to repeal the death penalty, meaning New Mexico could become the 15th U.S. state without capital punishment if the governor signs the bill into law.
Gov. Bill Richardson has opposed a repeal in the past, but now says he would consider signing it. "I haven't made a final decision," the governor said this week.
If Richardson signs the bill, New Mexico — one of 36 states with capital punishment — will become the second state to ban executions since the U.S. Supreme Court reinstated the death penalty in 1976. New Jersey was the first, in 2007.
The state Senate voted 24-18 on Friday in favor of the bill, which replaces capital punishment with a sentence of life-without parole. The House approved it a month ago. However, a repeal would not affect the sentences of the state's two inmates on death row.
Countrywide, death sentences and executions have been on a steady decline for more than a decade. Legislation being debated in several states to abolish capital punishment is getting more attention than in the past. Repeal legislation has passed the state Senate in Montana and awaits a House hearing. The state Senate in Kansas is expected to debate a repeal bill on Monday.
President Barack Obama has said he is in favor of executions only in extreme cases, but has otherwise mostly avoided the issue and has no direct sway over states' death penalty laws. But he could appoint more liberal justices to federal courts who are less likely to impose death sentences.
In part, recent death row exonerations prompted by improved methods of testing physical evidence, including DNA samples, have planted seeds of doubt. And changes to state laws also have made a difference, as more states have been giving juries the option of imposing life without parole rather than death.
"As beautiful as our justice system is ... it is still a justice system of human beings, and human beings make mistakes," Sen. Cisco McSorley, an Albuquerque Democrat, said during nearly three hours of debate.
Financial necessity also is a driving factor. The death penalty is expensive — trials often require extra lawyers for appeals and higher security costs — and cash-strapped states are responding to the notion that it is cheaper to imprison people for life.
Observers caution that the death penalty is not likely to end soon in a country where polls still show 60 percent of people support executions. They point to the mostly conservative American South — which does not include New Mexico — as the major reason.
Of the 1,151 executions nationwide since the U.S. Supreme court reinstated the death penalty in 1976, the vast majority — 951 — occurred in the South, according to the nonprofit Death Penalty Information Center. New Mexico has executed one, convicted child killer Terry Clark in 2001.