Tuesday, March 29, 2011

Illegal "War" in Libya; Does the Constitution Matter Anymore

What too many of those who blather about the “justification” of our being in another undeclared “war” don’t seem to comprehend, or don’t care about, is that the question is not whether the president can form and then spout the words that makes his invasion of another sovereign country palatable; the question is whether the invasion without congressional declaration is lawful, plain and simple.  And, yes, presidents from Truman through Obama have committed our boys and girls to things that look and sound and kill like wars without a declaration by Congress, and all of those actions, by Democrat and Republican presidents, were and are illegal and unconstitutional.  And there is no legitimate doctrine of constitutional jurisprudence that proposes that some or any quantity of unconstitutionalism makes the next similar incident constitutional – unconstitutional acts are always unconstitutional.

The Framers debated whether the political decision of whether we should wage war should rest with the commander in chief, as was the case in England, or should rest with the legislative branch, and they purposely and knowingly chose the latter.  Whether we go to war = Congress; how it is to be waged once thus authorized = commander in chief.

Congresses for 60 years have abdicated their duties in that regard, and presidents for 60 years have been usurpers in that matter, and as a result, thousands of our children have been killed in illegal wars, and the usurpers and the abdicators are political murderers.

We must get out of Libya now, and not with the current shell game of wink-wink, nod-nod, “it’s really NATO.”  The supreme allied commander of NATO is an American admiral; the theater commander of this belligerence is an American general. 

We cannot convince the nations that we arrogantly, ethnocentrically believe it our mission on this Earth to liberate and to bring into the 21st century of governance by a rule of law to follow us by breaking our own fundamental law.  We are perceived as hypocrites for that and for so many other things, and rightly so.

The question is not whether the world would be a better place without [Gaddafi, Assad, Mubarak, Saddam, pick your dictator] [some thought it would have been a better place without Bush!]; the question is the legitimacy of our actions.  “Take out Gaddafi,” Bill Bennett?  By what authority do we assassinate foreign leaders whom we don’t like?  We have not been given the authority to don the mantle of Crusader Rabbit of the Universe, and presidential invasions of other lands to “enlighten” them ushers in a new Dark Ages of corrupted constitutionalism.  The same so-called originalists and Tea Partiers who rhetorically ask for the authority in the Constitution for Obama’s tyranny about national health care issues should also eagerly and aggressively denounce his and other presidents’ unilateral international military adventurism.

Wednesday, March 16, 2011

Another Innocent Man Convicted in this Land of the Free

Well, it’s happened again, and it will happen over and over and over until  juries stop presuming that their government officials, judges, prosecutors, cops, etc., always tell them the truth: another factually innocent man has had his case set aside after decades in prison, and largely based on erroneous eyewitness testimony.

As reported in the Los Angeles Times [why not in the Desert Sun???], Francisco Carrillo was wrongfully convicted, as digested here:

[LA Superior Court Judge] Bacigalupo overturned Carrillo's 1992 murder conviction Monday after witnesses recanted their identification of him as the gunman and a dramatic reconstruction of the shooting raised doubts about whether they could have ever reliably identified the shooter.

The murder case against Carrillo hinged solely on the word of six teenage boys who had been standing with the victim on a Lynwood street when the gunman drove by. One jury deadlocked 7 to 5 in favor of acquitting Carrillo, but a second jury found him guilty. He was sentenced to two life terms in prison.

Last week, five of the six witnesses testified at the Compton Courthouse that they had not clearly seen the gunman. Among them was the victim's son, who said he made his identification because one of his friends at the scene said he recognized Carrillo as the shooter. That friend also recanted.

The case underscores what legal experts say is the danger of eyewitness testimony. Studies have shown that faulty identifications are the biggest factor in wrongful convictions and that witnesses are particularly unreliable when identifying someone of a different race. The witnesses who identified Carrillo are black, while he is Latino.

This case is merely the tip of an outrageous iceberg of wrongful convictions; they happen all the time. The problem with unearthing them is that not all wrongfully convicted people have the wherewithal to reopen their case, and where the sentences are comparatively short, they would have completed their sentences by the time the system was able to help them.  And a lot of the reason that most of these things don’t get rectified is because judges and DAs are reluctant to give defense attorneys the tools to attend to the matter.  Our U.S. Supreme Court, supreme only in its finality and not in its wisdom, has famously held that for liberty-suffering people to come to them for habeas corpus relief, the Great Writ which is supposed to protect all against arbitrary and evil government [the Framers recognized government is evil; it’s only modern statists who deny such], one must pose an argument other than that he is innocent!  Innocence alone is not enough to undo a wrongful conviction in the tribunal set up to protect us from overweening government!  And we thought Saddam was an extremist in his assaults on Liberty!  Moreover, it is not a foregone conclusion that one can get a court order for post-conviction DNA testing, which is the vehicle by which many wrongful convictions are overturned.  Trial courts and DAs make such very difficult to obtain.

Jurors must, must, must start to look at stuff presented to them with the fundamental skepticism the Framers intended, or else they or their loved ones could, indeed eventually will, get caught up in the illegal conviction-o-mania besetting this land for the last 3 or 4 decades.

When citizens presume their government to be wise, honest, correct, and supportable in its actions, that defines a police state.  And Folks, we are there.  One of the biggest mistakes a defense attorney can make is to call a lying cop a liar; most jurors these days are police groupies and they take great personal umbrage when their badged “heroes” are attacked.

We see instances daily of police and governmental treachery and duplicity and evil, but jurors do not want to believe the one who is smiling at them in court, Boy Scoutishly, is one of those sorts.  And trying to convince the pro-government jurors that the prosecutor has motives other than presenting the unvarnished truth is tantamount to suggesting that the Father of our country, George Washington, cycled his slaves in and out of his Philadelphia government residence every 6 months because of the law that if they lived in Pennsylvania more than 6 months, they would be free, and he didn’t want that.  [Huh?  He did that?  Ooops, sorry, bad example, I guess.  Or the apt one!]

We have a moral imperative in this land, especially if we are going to continue to boast the claim of “exceptionalism,” to understand that liberty is the ascendant value, power is the diminishing value, and the devices the Framers left us for keeping the proper relationship there [beyond reasonable doubt burden on government, presumption of innocence for accused people, neutral jurors working with a neutral judiciary to stand against the waves of tyranny, right to bear arms in the citizenry, warrants for liberty invasions, and a non-proactive constabulary], or else the tears shed at 4th of July parades when the Flag goes by is sheer hypocrisy – or worse.

Let us return the Republic to an even, liberty-oriented keel.  And let’s compensate those wrongfully convicted handsomely from the coffers of the prosecutors and judges who did not do their jobs, and if there was malice on the part of those prosecutors, judges, or the investigating cops that gave rise to the wrongful convictions, let them serve the same sentence illicitly imposed on innocent citizens.  For all wrongs, there needs to be a remedy commensurate with the gravity of the wrong.

Friday, March 11, 2011

DUI Screwy-isms

One of the great outrages in drunk driving enforcement and litigation is the absurdism that the non-law-trained DMV hearing officers [who used to be clerks selling Vehicle Codes at the front desk and will be returned to that assignment if they do not steal enough licenses from the motoring public!] are invited to presume that cops have done what cops are supposed to do in investigating DUIs. That is, in lieu of real evidence needed in virtually all walks of litigation before rights/privileges can be stolen by government, the presumption that the cop did his job supplants much of the need for proof.  Huh???

Uh..., the fox guarding the henhouse would have more validity and bring more safety.  Now, no, chill out, this is not an attack on police in general, nor on the ones I know and trust in particular; this is revealing a pro-government outrage that is to due process what Bernie Madoff was to stock investment advice.

Nobody in the know about police work and police motivations, who are honest about the subject, would suggest that anyone should rely on the veracity of subjective police reports!  It is well established that cops have enormous incentives to stretch the truth, so much so that in an even contest between a citizen and a cop, it is reversible error to presume the cop to be more credible than the citizen. People v. Dickerson (1969) 273 Cal.App.2d 645, 650 and fn. 4, cited app., without contradiction by any other justice, as evidence of the “prevalence of police perjury [in criminal investigations/testimony]....” Briscoe v. LaHue (1983) 460 U.S. 325, 365 and fn. 36 [Marshall, J. dissenting]. 

As the Dickerson Court insightfully notes, “The court appears to have ignored: 1. that the natural desire of a police officer to see a criminal brought to justice may cause him to be less than candid in connection with a collateral inquiry which does not go to what appears to him to be the only relevant question: was the defendant a thief?  2. That law enforcement is often a 'competitive enterprise' (Terry v. Ohio, 392 U.S. 1, 12 [20 L.Ed.2d 889, 900, 88 S.Ct. 1868]; Johnson v. United States, 333 U.S. 10, 14 [92 L.Ed. 436, 440, 68 S.Ct. 367]; and 3. that a police officer who has conducted an illegal search and seizure may be subject to criminal, civil and disciplinary sanctions.” Dickerson, supra at page 650, fn. 4.  He would also be subject to such sanctions for other illegal activity for which he would need to shade the truth for his own professional benefit, including matters related to a DUI investigation.

And, nevertheless, cops are presumed to do what they are supposed to do, per Evidence Code section 664?  We take people’s license and liberties based on that evidentiary naiveté?  Apart from the Dickerson teaching, supra, let’s just look at a few recent things regarding the credibility of cops:

http://www.sbsun.com/ci_17568968 [seven people from San Bernardino Sheriff’s Department indicted for theft, including command officers];

http://latimesblogs.latimes.com/lanow/2010/10/cathedral-city-police-officer-sexual-assault.html [Cathedral City cop arrested and charged for sexual misconduct];

http://www.ktvu.com/news/27133316/detail.html [57 cases dismissed due to misconduct by San Francisco Police]

http://www.law.com/jsp/ca/PubArticleCA.jsp?id=1202484717574&slreturn=1&hbxlogin=1 [Videos of rampant corruption by San Francisco cops in recent drug busts]

And on and on; not a day goes by that we do not see some new police corruption event, so the idea that we are stripping people of their freedom of locomotion and related livelihoods on a due process deficient procedure, sprinkled with presumptions that cops and the rest of government do-what-they-are-supposed-to-do-so-who-needs-evidence?/!, is appalling.

If we really believe in a rule of law, and don't merely invoke that saying to make us feel good and superior to the rest of the world, then we really need to pay attention to the evidentiary shortcomings that are invited into the DUI enforcement henhouse.

Sunday, March 6, 2011

Penalty Assessment Scam

You might have noticed that if you have committed an offense, traffic infraction or otherwise, which has a mandatory maximum fine of, say, $100.00, the amount ultimately imposed by the court might be in the neighborhood of 4x that amount - a rich neighborhood indeed.  That is due to a corrupt device in the statutes allowing "penalty assessments" to be tagged onto the base fine.

What seems not to be fully understood and appreciated is that the penalty assessment system which is being used to jack up fines to grotesque and confiscatory amounts is really a local, and sometimes state, device to detour the limitations on raising taxes installed by the voters decades ago in Proposition 13. The voters made raising taxes difficult precisely so government would cut back on its bloated programs and operations, and instead of heeding the command of the voters, local and state legislators increasingly thumb their noses at the voters by using and then increasing penalty assessments to make up for lost tax revenue. That is, instead of cutting back on government programs and salaries as intended, legislators have sneaked around the barricade and charged full-steam ahead with various, and costly, programs, but the funding for them does not get debated, nor authorized by voters, nor voted upon by the requisite super-majorities.

The penalty assessment authorizations and enactments in the codes should be repealed immediately, because they are to taxation what Bernie Madoff is to stock investment advice, and those who have authorized that sneaky form of surreptitious taxation against the voters’ mandate should live with Bernie.

In Riverside County, things are even more outrageous.  In that county, there is a booking fee that is over $425.00: if you are arrested by other than the sheriff and hauled off to "his" jail [that you and I paid for], you have to pay through the nose for that "service."  Other counties charge $50-80, but Riverside County, always looking to screw over its citizens, has imposed 5x the upper amount found virtually anywhere else.

We have to stop this outrageous practice of imposing hidden taxes on the backs of those brought into the criminal justice system, because in addition to the fact that it is a scumduggerish disregard of the intent of the voters, such a practice could readily be an incentive for local cops to arrest and jail more people than the merits support.  If the system, and the cops' bosses, make handsome sums off of assessments on fines and for bookings, then there is a strong incentive for people to shade things to create the impression that arrests and convictions are merited.  And if you don't believe that the system has an agenda other than neutral and above-board service to the constituents and the citizenry, and then does not act on that ulterior agenda regularly, climb out from under your rock and come into the light.