Friday, July 3, 2015

Jury Nullification Really Is Not; It Is More



One of the problems with discussing, thinking about, avoiding, educating about, being concerned about “jury nullification” is that the term itself is misleading.  It implies that there would legitimately be a certain outcome but for the jury aggressively vetoing that matter.  But that is not consistent with the Framers’ notions of, and intents about, the citizen jury.

Government can start down the road of invading people’s liberties by arresting for and then by prosecuting for a criminal accusation, but there cannot be a conviction unless a jury is convinced that there is beyond reasonable doubt quantum of evidence and also convinced that general concepts of justice are satisfied by a conviction.  That is the original jury’s role.  The thing we label “nullification” is really simply part of the jury’s original role, which government wants now to suppress. But the jury is not nullifying anything when it considers factors other than sheer evidence; it has to be convinced both of the sufficiency and of the justice of the matter, or acquittal is mandated.

Over the years, the executive has put pressure on their judicial friends to nay-say the jury’s full role, pretending the executive has a right to conviction if they have given enough evidence, and judges who are generally not well-steeped in constitutional history and principles have given in, commanding attorneys not to let juries know their full powers.

But you see, that proves the point, because the function of the jury was to protect people against not only bad-minded executives, but also against bad-minded judges, because the protection of juries was against all of government.

So the fact that a judge tells a jury that they must look only at the questions of fact, and not of law nor of justice, merely points out the increasing need for a robust jury.  In other words, the fact that judges say juries can’t do their full and intended function of protection is like the fox telling the famer that he should not put up a sturdy fence around the chicken coop. The wrongful and harmful claim illustrates the need for the protection.

We must educate the public that despite what wrong-minded government tells the citizenry, the citizens, through their jury power, are the ultimate deciders, and they should not be dissuaded from using their power simply because one of the agencies they are designed to protect us against says they can’t protect us against it.
When courts, or the “sovereign’s representative” – public prosecutors, speak ill of the doctrine of jury nullification, they thereby speak against the founding principles of the Republic; they thereby speak against the power of the people to govern the Republic; they essentially speak treason.

Jurors need to know that regardless of what the agencies they were designed to protect us against, the executive and the judicial branches [and the legislative branch also!], they have the power, legitimate power, power recognized and celebrated and endorsed by the Founding Fathers, to disregard evidence and instructions and contrary proclamations and to acquit people who are on trial in front of them.  And they have the duty to do so.

Independence Day approaches, and jurors taking matters into their own hands and acquitting people on trial is the ultimate exemplar of the sort of independence that the Framers envisioned.  Jurors doing otherwise is precisely why we have so many factually innocent people who have been convicted and imprisoned, sometimes for decades.  

As Ben Franklin intoned, the nature of our liberty is such that it is better that 100 guilty people be turned loose than that even one innocent person be convicted.

www.kennedyforlaw.com

Tuesday, June 16, 2015

Politics of Drunk Driving Litigation



          Some people don’t quite get it when I correctly observe that drunk driving in this state [and really in all states, thanks to the federalism busting intrusion into the substance by the federal government] is a political crime.  Maybe they don't want to get it.  What is really going on is that political neo-prohibition groups like MADD and SADD and others have put pressure on the political branches [and the judiciary is the most political of all, despite, and because of, its protestations to the contrary] to become increasingly harsh about drunk driving conviction penalties.  And instead of decrying the pressure, the various branches of government largely genuflect to the improper and considerable pressure by the religio-moralist groups who remain distressed that the 21st Amendment passed.
We have written and spoken about the horrid Vangelder opinion by our supreme court [I really can’t capitalize the court, which would be awarding it more credit than it is due], wherein the science of the matter there boiled down essentially to a debate between Pope Urban, VII, and Galileo, and the supreme court decided to side with mythology and against science, because its MADD masters demanded as much.  Now we have a new judicial outrage, Coffey v. Shiomoto (2015) 60 Cal.4th 1198.
The court defines the issue as: “In an administrative hearing to review the suspension, plaintiff‘s expert witness opined that her BAC was rising at the time of the chemical tests, suggesting her BAC was below the 0.08 percent threshold at the time plaintiff was driving. Both the Department of Motor Vehicles (DMV) hearing officer and the trial court discounted the expert‘s testimony in part by relying on arrest reports, which described the physical manifestations of plaintiff‘s intoxication, such as her general appearance, erratic driving, poor performance on field sobriety tests, and the strong odor of alcohol she projected.”
“We decide in this case whether the trial court erred by considering, in addition to the results of breath and blood tests, other circumstantial evidence of intoxication to conclude by a preponderance of the evidence that plaintiff drove with a BAC at or above 0.08 percent. As we explain, we conclude the trial court did not err.”
The translation of that is even though a scientist has calculated what the BAC was at the time of driving, the government can disregard that calculation and rely on things like FSTs and odor of alcohol to decide what the BAC was, close enough for government work!  Huh?  The court decided to see if they could write something even more outlandish than they penned in Vangelder, and they succeeded.  The problem is that they used some doctrines that anyone knowledgeable about this subject would realize are utterly invalid.  Oh well, what the heck: it is drunk driving, after all, the modern day equivalent of what was occurring in 1692 in Salem, Massachusetts!
First off, to disregard the science of looking at four increasing BACs now and scientifically calculating backwards to the point of driving, they decide to look at driving and odor of alcoholic beverage and FSTs.
The problem is that there is no peer-reviewed scientific test that has found a causal connection between FSTs and BAC [which is why any such connection is not admitted in this state!] nor between such and impairment by alcohol [which is not the issue at an admin per se hearing].  There is no peer-reviewed science connecting odor of an alcoholic beverage to BAC [especially since the odor detected is of the cogenitors mixed with the alcohol and not the alcohol.  And there is no peer-reviewed science connecting driving pattern with BAC.  Yes, yes, there are some non-peer-reviewed projects funded by the executive, its National Highway Traffic Safety Administration, carried out by a couple of psychologists, not relevant nor neutral scientists regarding the science of physiological and neurological impairment, but their work is voodoo conclusionism, not science.  So to put that on the same balance beam as real science is adversarial Vangelderism gone mad.  Or MADD!
How did things balance out that the DMV hearing [where hearing officers are expressly permitted not to be neutral; they are institutionally congruent with the party taking the anti-liberty action]? 
“At the ensuing administrative hearing, the DMV hearing officer had before her the ―Officer‘s Sworn Statement form, Officer White‘s arrest report and the supplemental reports of Sergeant Martin and Officer White. In addition to considering these documents, the hearing officer heard telephonic testimony from Jay Williams, a forensic toxicologist with extensive experience, who testified for plaintiff. Williams noted the result of plaintiff‘s first breath test was 0.08percent, the second test three minutes later was 0.09 percent, and her blood sample taken about 20 minutes later tested at 0.095 and 0.096 percent. According to Williams, these results suggested the alcohol level in plaintiff‘s body was rising at the time of the tests and, given the totality of the circumstances, were consistent with plaintiff‘s BAC being below 0.08 percent at 1:32 a.m. when she was first pulled over by Sergeant Martin.
“The DMV hearing officer rejected Williams‘s testimony regarding a rising BAC, explaining in her ruling that the witness‘s two conclusions—first, that plaintiff‘s BAC was rising at the time she was pulled over, and second, that It may accordingly be deduced that her BAC was below 0.08 percent when she was driving—were not supported by reliable evidence, were―too speculative to support the contention, and were―based on a subjective interpretation of the evidence.”  Yeah, .08, .09, .095, .096 are not rising in DUI new math!
So, we have a scientist testifying live, subject to cross-examination by the hearing officer, about what the mathematical/scientific calculation was versus a cop’s hearsay report of symptomology, and the symptomology carries to day to define the numbers???  Was Alice of Wonderland fame the hearing officer?
Playing with a stacked deck is worse than not playing at all, but the judiciary is supposed to protect us from rapacious and thoughtless government, at least when litigation is brought to bear against the outrage.
Then the court discusses the “rebuttable presumption” of Vehicle Code section 23152(b), the problem being that CALCRIM has dropped reference to that “presumption,” because caselaw provides that the proper word/term/concept is “permissive inference”: “presumption” is not supposed to be used for the concept being addressed there!  Does that presage that the supreme court will reverse itself if the matter comes before it again and will allow “presumption” to be employed there, or do they simply not understand their own caselaw?
The court says that the presumption was rebutted here, but their repeated employment of a previously disallowed term is most troubling.
The court finds pivotally compelling an old Arizona case that announced that BAC could be ascertained from circumstantial evidence surrounding the driving and the individual, while agreeing that such is not really authoritative here.  That is interesting that our supreme court finds sufficiently persuasive a 1983 Arizona case to deprive this motorist of liberty, but our state courts do not find persuasive a much, much later Arizona case that holds self-evidently that “implied consent” is not Fourth Amendment consent for warrantless DUI blood draws!  It can’t be that they are result-oriented in what foreign cases they will rely on, can it?  Naaahh!
If a judge or DA had to defend against losing their robes or Bar card based on the quality of the result-oriented, pseudo-science evidence introduced to strip this woman of her liberty right to drive, they would be shrieking their proper outrages to the rafters.  But because this is drunk driving, who the Hell cares about litigational precision!/?  The supreme court should hang its head in shame.  But it has none.

Wednesday, May 6, 2015

ACLU Finally Enters Fray on Illegal Traffic Court Bail Scam

https://www.aclunc.org/news/aclu-warns-california-counties-charging-payment-court-dates-unconstitutional
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That is a fight that I have been making for many years.  In Riverside County, the traffic judges demand “bail,” without a finding of flight risk, of all pro per arraignees, but if they are represented by counsel, the “bail” is “waived.”  I have set up two speedy trial attacks on that, pro bono, with defendants willing to undergo the inconvenience of coming back for the continued arraignments required of those who don't pay the “bail.”  On one, I filed an amicus 1382 dismissal motion when the continued date passed the 45 day point, which was denied by the traffic pro temp. [who should lose his license to practice law, by the way for the shameful way he treats pro pers on that stuff], and then the clerk saw that my name was on the amicus motion, so she whispered to the judge on the continued date that he had better let the defendant have his trial.  He was, of course, found guilty, and I did a pro bono appeal and it was reversed by minute order [so nothing to seek publication on], the single appeals judge musing that what was happening in the trial court was unsupported by law.  I agreed.  He is now the PJ of the county but it is still going on!
 
On the second one, I filed a pro bono/amicus 1382 dismissal motion, and when the judge saw my name, he granted the motion to dismiss on the day of continued trial.
 
I had complained to a previous PJ of Riverside County, and he wrote back an incomprehensible letter that (a) it is not happening, but (b) if it is, it's okay.  I knew it was happening, because they tried to pull that on me and I refused to pay, so they buckled under and gave me my trial – on which I was acquitted.  And I know it is not okay, because "bail" may only be imposed on a pretrial person if he is found to be a flight risk - never as an admission ticket to trial court!
 
But it goes on and on and on here, and I cannot be Crusader Rabbit for the world, so I am glad the ACLU is getting involved.  I think when I first heard of this traffic court scam a decade or so ago, I wrote the ACLU about it, but they apparently were not interested then.
 
It used to occur in the Joshua Tree court, but the judges there wised up to the Constitution and it does not happen anymore.  I do not know about the rest of San Bernardino County.
 
Thousand and thousands and thousands of pro pers have had their constitutional right to court trial extorted from them by this pernicious and contra-constitutional practice.  Were we able to sue judges for their malfeasance [an immunity the Courts manufactured for themselves, and then for their prosecution chums, from whole cloth], a class action could be brought, reaping $millions.

Wednesday, April 15, 2015

Best Coachella Fest Defense Available Anywhere



As I announced and predicted would occur in various forums, there were many arrests at the latest incarnation of the Coachella Valley Music and Arts Festival [Coachella Fest], and most could have been avoided if my advice had been followed.

You need to understand that local government coffers swell with these sorts of arrests, and subsequent prosecutions, because they are Grant funded, meaning the local agencies receive enormous sums of money from Sacramento, which was sent there from Washington, D.C., which was taken from you in taxes back here, to screw over people, in the disingenuous name of “health” and “safety,” in this nation conceived of Liberty.  And most of these sorts of arrests were and are avoidable, if you just are careful of to whom you are speaking, of who you are letting sidle up to you, and then of what you say and allow when you are detained and arrested.  You are not required to talk to cops, nor to let them search, and you should not, because it never, ever helps.  They are there to put cases together, not to seek the neutral ends of justice, nor to help you out of the downsides of your bad choices.

Even though avoidable things have not been avoided, that which should have been avoided can be mitigated or eliminated if you have the proper attorney.

No one is more effective nor experienced with dealing with drug, alcohol, and conduct related offenses at these festivals [or anywhere else] than am I.  No one has a better track record, credibility in the Courts, grit, or scholarship than I.

If you have been victimized at one of the festivals, this weekend’s or next weekend’s Coachella Fest, or the later Stagecoach, contact me.  You can do no better than have me on your side if you have been accused of crimes; you can [and too many do!], however, do much worse.

It does not cost to talk to me about your case; it will, however, cost you more than mere money if you choose to go elsewhere.

Call for an appointment: 760-863-3840.

www.kennedyforlaw.com