austindefender

What Defense Lawyers Do:

By requiring the state to prove its case and helping defendants understand their options in the criminal justice system, defense attorneys can help ensure that the state doesn’t send innocent people to jail and that individuals who commit criminal offenses receive appropriate sentences that punish without leading to unnecessary prison and jail overcrowding.

–The Texas Fair Defense Project.

“Helping people understand their options” is fair enough.  The bit about ensuring “innocent” people don’t go to jail, though, is not quite right.

A defense lawyer’s job, is to keep you from going to jail, whether you did it or not.  It’s a bit like being a plumber, or a doctor.  The goal is to mitigate the damages, not to assign blame.

The part about “appropriate sentences” also rings false.  Whether a sentence is appropriate is more a matter of concern for judges, or to jurors.  What’s “appropriate” one might be disproportionate to another, but – for defense lawyers – less is always more (as a defense attorney friend of mine likes to say).

But then again, that’s the nature of an adversarial system.  So long as both sides are roughly equal, justice is likely to be found somewhere in between.  After all, it’s not “from the benevolence of the baker” that we expect our bread.

SB 1070

A. NO OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR
17 OTHER POLITICAL SUBDIVISION OF THIS STATE MAY ADOPT A POLICY THAT LIMITS OR
18 RESTRICTS THE ENFORCEMENT OF FEDERAL IMMIGRATION LAWS TO LESS THAN THE FULL
19 EXTENT PERMITTED BY FEDERAL LAW.

Not sure what this means.  I’m not sure how a town or county could stop INS or ICE, or why they would want to.

B. FOR ANY LAWFUL CONTACT MADE BY A LAW ENFORCEMENT OFFICIAL OR AGENCY
21 OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS
22 STATE WHERE REASONABLE SUSPICION EXISTS THAT THE PERSON IS AN ALIEN WHO IS
23 UNLAWFULLY PRESENT IN THE UNITED STATES, A REASONABLE ATTEMPT SHALL BE MADE,
24 WHEN PRACTICABLE, TO DETERMINE THE IMMIGRATION STATUS OF THE PERSON. THE
25 PERSON’S IMMIGRATION STATUS SHALL BE VERIFIED WITH THE FEDERAL GOVERNMENT
26 PURSUANT TO 8 UNITED STATES CODE SECTION 1373(c).

It’s hard to see what difference this part of the law makes.  The police were free to question people about their immigration status before this law, and they’re free to do it after.

If they’re not so inclined, they have to decide it’s “impractical.”  It is, in other words, discretionary – pretty much the same as it was before.

The last sentence says that they’re to “verify” status with the Federal Goverment.

The problem with this is that the Federal Government doesn’t keep a list of who is and who isn’t a citizen.  There is no archive of photographs and fingerprints of every person who was born in this country.  Similarly, there is no list of everyone who is here illegally.  Even if there were, it would only be useful if the officer could first make a positive ID.  Since Americans aren’t required to carry IDs, and aliens rarely carry them if they show they’re here illegally, even making an initial identification is often difficult.  “Verifying” somebody’s immigration, in other words, is easier said than done.

Any person who is arrested shall have the person’s immigration status determined before the person is released.  [From the House Engrossed version.]

I’m not sure – because it doesn’t say – what happens if someone’s immigration status isn’t determined by the time they’re to be released.  However, if it’s meant to say that they’re to stay in jail until somebody (who?) gets around to it… it’s unconstitutional.  The government cannot keep a person in jail indefinitely without a charge.

C. IF AN ALIEN WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES IS
28 CONVICTED OF A VIOLATION OF STATE OR LOCAL LAW, ON DISCHARGE FROM
29 IMPRISONMENT OR ASSESSMENT OF ANY FINE THAT IS IMPOSED, THE ALIEN SHALL BE
30 TRANSFERRED IMMEDIATELY TO THE CUSTODY OF THE UNITED STATES IMMIGRATION AND
31 CUSTOMS ENFORCEMENT OR THE UNITED STATES CUSTOMS AND BORDER PROTECTION.

If the Feds do know someone is here illegally, and they’re arrested and booked into jail, the Feds routinely ask the jail to hold onto him until they can come and get him.  (It’s known as an “immigration hold.”)

As far as the part about “immediately” transferring him, it’s meaningless.  ICE will come and get an alien when ICE is ready to come and get him.  Arizona has no authority over Immigration, and no ability to make them come.

NOTWITHSTANDING ANY OTHER LAW, A LAW ENFORCEMENT AGENCY MAY
33 SECURELY TRANSPORT AN ALIEN WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES
34 AND WHO IS IN THE AGENCY’S CUSTODY TO A FEDERAL FACILITY IN THIS STATE OR TO
35 ANY OTHER POINT OF TRANSFER INTO FEDERAL CUSTODY THAT IS OUTSIDE THE
36 JURISDICTION OF THE LAW ENFORCEMENT AGENCY.

This part is about getting immigrants off of Arizona’s hands as soon as possible.  Transporting inmates may get them off of Arizona’s hands faster, but it also means the state will have to pay for the transporting.  In any case, they can only transport inamates when the Feds are ready to take them. Arizona can’t just drive up to their front door, drop them off, and drive away.

E. A LAW ENFORCEMENT OFFICER, WITHOUT A WARRANT, MAY ARREST A PERSON
38 IF THE OFFICER HAS PROBABLE CAUSE TO BELIEVE THAT THE PERSON HAS COMMITTED
39 ANY PUBLIC OFFENSE THAT MAKES THE PERSON REMOVABLE FROM THE UNITED STATES.

The police can already make an arrest when they have probable cause – That’s sort of the whole point of having probable cause in the first place.  I have no idea what the Arizona legislature was thinking when they wrote this.  So far as I can tell, this part of the law doesn’t change anything.

F. EXCEPT AS PROVIDED IN FEDERAL LAW, OFFICIALS OR AGENCIES OF THIS
41 STATE AND COUNTIES, CITIES, TOWNS AND OTHER POLITICAL SUBDIVISIONS OF THIS
42 STATE MAY NOT BE PROHIBITED OR IN ANY WAY BE RESTRICTED FROM SENDING,
43 RECEIVING OR MAINTAINING INFORMATION RELATING TO THE IMMIGRATION STATUS OF
44 ANY INDIVIDUAL OR EXCHANGING THAT INFORMATION WITH ANY OTHER FEDERAL, STATE
45 OR LOCAL GOVERNMENTAL ENTITY…

Federal law already provides for sharing immigration information – but if it didn’t, Arizona would be powerless to change it.  As far as Arizona itself failing to send or receive information, Arizona is free to change that.

G. A PERSON MAY BRING AN ACTION IN SUPERIOR COURT TO CHALLENGE ANY
12 OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL
13 SUBDIVISION OF THIS STATE THAT ADOPTS OR IMPLEMENTS A POLICY THAT LIMITS OR
14 RESTRICTS THE ENFORCEMENT OF FEDERAL IMMIGRATION LAWS TO LESS THAN THE FULL
15 EXTENT PERMITTED BY FEDERAL LAW…

Again, I don’t know how a county or town would go about limiting or restricting the activities of ICE or the INS.  Perhaps some counties or towns are trying to do that.  If they are, this is Arizona hoping that encouraging lawsuits will get them to stop.

13-1509. Trespassing by illegal aliens; assessment; exception;
41 classification
42 A. IN ADDITION TO ANY VIOLATION OF FEDERAL LAW, A PERSON IS GUILTY OF
43 TRESPASSING IF THE PERSON IS BOTH:
44 1. PRESENT ON ANY PUBLIC OR PRIVATE LAND IN THIS STATE.
45 2. IN VIOLATION OF 8 UNITED STATES CODE SECTION 1304(e) OR 1306(a).
1 B. IN THE ENFORCEMENT OF THIS SECTION, THE FINAL DETERMINATION OF AN
2 ALIEN’S IMMIGRATION STATUS SHALL BE DETERMINED BY EITHER:
3 1. A LAW ENFORCEMENT OFFICER WHO IS AUTHORIZED BY THE FEDERAL
4 GOVERNMENT TO VERIFY OR ASCERTAIN AN ALIEN’S IMMIGRATION STATUS.
5 2. A LAW ENFORCEMENT OFFICER OR AGENCY COMMUNICATING WITH THE UNITED
6 STATES IMMIGRATION AND CUSTOMS ENFORCEMENT OR THE UNITED STATES BORDER
7 PROTECTION PURSUANT TO 8 UNITED STATES CODE SECTION 1373(c).

I’m not sure what the Arizona legislature means by “final determination,” but unless it’s trying to cancel the Constitution, the “final determination” in a criminal case is made by a jury, not by the police.

8 C. A PERSON WHO IS SENTENCED PURSUANT TO THIS SECTION IS NOT ELIGIBLE
9 FOR SUSPENSION OR COMMUTATION OF SENTENCE OR RELEASE ON ANY BASIS UNTIL THE
10 SENTENCE IMPOSED IS SERVED.
11 D. IN ADDITION TO ANY OTHER PENALTY PRESCRIBED BY LAW, THE COURT SHALL
12 ORDER THE PERSON TO PAY JAIL COSTS AND AN ADDITIONAL ASSESSMENT IN THE
13 FOLLOWING AMOUNTS:
14 1. AT LEAST FIVE HUNDRED DOLLARS FOR A FIRST VIOLATION.
15 2. TWICE THE AMOUNT SPECIFIED IN PARAGRAPH 1 OF THIS SUBSECTION IF THE
16 PERSON WAS PREVIOUSLY SUBJECT TO AN ASSESSMENT PURSUANT TO THIS SUBSECTION.
17 E. A COURT SHALL COLLECT THE ASSESSMENTS PRESCRIBED IN SUBSECTION D OF
18 THIS SECTION AND REMIT THE ASSESSMENTS TO THE DEPARTMENT OF PUBLIC SAFETY,
19 WHICH SHALL ESTABLISH A SPECIAL SUBACCOUNT FOR THE MONIES IN THE ACCOUNT
20 ESTABLISHED FOR THE GANG AND IMMIGRATION INTELLIGENCE TEAM ENFORCEMENT
21 MISSION APPROPRIATION. MONIES IN THE SPECIAL SUBACCOUNT ARE SUBJECT TO
22 LEGISLATIVE APPROPRIATION FOR DISTRIBUTION FOR GANG AND IMMIGRATION
23 ENFORCEMENT AND FOR COUNTY JAIL REIMBURSEMENT COSTS RELATING TO ILLEGAL
24 IMMIGRATION.

Locking people up is expensive – Maricopa County (of Joe Arpaio fame) charges $189 per inmate, per day.  The Arizona legislature fixes that – or pretends to fix it – by saying that the inmates have to pay.  Of course, it’s hard to make money from a jail cell, and once they’re deported it becomes even less likely that they’ll pay.

E. NOTWITHSTANDING ANY OTHER LAW, A PEACE OFFICER MAY LAWFULLY STOP
21 ANY PERSON WHO IS OPERATING A MOTOR VEHICLE IF THE OFFICER HAS REASONABLE
22 SUSPICION TO BELIEVE THE PERSON IS IN VIOLATION OF ANY CIVIL TRAFFIC LAW AND
23 THIS SECTION.

Police may stop people who commit traffic violations, whether they’re citizens or not.  Again, this does not change the existing law in any way.

13-2929. Unlawful transporting, moving, concealing, harboring
27 or shielding of unlawful aliens; vehicle
28 impoundment; classification
29 A. IT IS UNLAWFUL FOR A PERSON WHO IS IN VIOLATION OF A CRIMINAL
30 OFFENSE TO:
31 1. TRANSPORT OR MOVE OR ATTEMPT TO TRANSPORT OR MOVE AN ALIEN IN THIS
32 STATE IN A MEANS OF TRANSPORTATION IF THE PERSON KNOWS OR RECKLESSLY
33 DISREGARDS THE FACT THAT THE ALIEN HAS COME TO, HAS ENTERED OR REMAINS IN THE
34 UNITED STATES IN VIOLATION OF LAW.
35 2. CONCEAL, HARBOR OR SHIELD OR ATTEMPT TO CONCEAL, HARBOR OR SHIELD
36 AN ALIEN FROM DETECTION IN ANY PLACE IN THIS STATE, INCLUDING ANY BUILDING OR
37 ANY MEANS OF TRANSPORTATION, IF THE PERSON KNOWS OR RECKLESSLY DISREGARDS THE
38 FACT THAT THE ALIEN HAS COME TO, HAS ENTERED OR REMAINS IN THE UNITED STATES
39 IN VIOLATION OF LAW.
40 3. ENCOURAGE OR INDUCE AN ALIEN TO COME TO OR RESIDE IN THIS STATE IF
41 THE PERSON KNOWS OR RECKLESSLY DISREGARDS THE FACT THAT SUCH COMING TO,
42 ENTERING OR RESIDING IN THIS STATE IS OR WILL BE IN VIOLATION OF LAW.
43 B. A MEANS OF TRANSPORTATION THAT IS USED IN THE COMMISSION OF A
44 VIOLATION OF THIS SECTION IS SUBJECT TO MANDATORY VEHICLE IMMOBILIZATION OR
45 IMPOUNDMENT PURSUANT TO SECTION 28-3511.

I’m not really clear on what “a person who is in violation of a criminal offense” means as far as the legislature is concerned.  But the law appears to make it a crime for such a person to have an illegal alien in his car or home, (to “transport” or to “harbor”), or to “encourage” someone to come to Arizona illegally.  If you do take an immigrant somewhere in your car, this law says the state can take your car from you.

The point, I think, is to make people afraid to be around illegal immigrants, or to have them in their cars or homes.  Many of them (the immigrants)  have friends and family members and will continue to be around them, however, despite the law. A woman who is born here, for example, is not likely to start shunning her parents, because they weren’t.  The friend of a man who needs to get to the hospital is likely to take him, regardless of the law.

The bonds of friendship, and family ties, in other words, are likely to be stronger than the fear of this law – which means it’s not likely to be enforced, because arresting so many people would be impractical.

The law has some other provisions.  It makes it a crime to stop in traffic to pick up day laborers.  (Stopping traffic was probably already a crime, but if not, this law says it is if you’re doing it to pick up a day laborer.

It also makes it a crime for illegals to look for work, while providing a new defense to the employers who hire them.

In summary, the law:
1.)  Is poorly written, because important parts of it are vague.
2.)  Contains a number of meaningless provisions, which either restate the law as it already existed, or give police powers they already had.
3.)  Contains unconstitutional provisions, such as the one that appears to try to take away the right to a jury trial, and another that appears to direct jailers to keep people in jail without a charge.
4.)  Contains provisions that are either impossible or impractical.  For example, one calls for immediate transfers of prisoners as soon as they’ve finished their sentences, when in fact, they can’t be transferred until the Feds are ready to take them.  Another demands that inmates pay the costs of their incarceration, when those same inmates are almost certain to be both indigent, and unable to work.  A third calls on police officers to make determinations about the immigration statuses of people they talk to,under circumstances that make that either difficult or impossible.

What remains – what isn’t unconstitutional, meaningless, or impossible – is mostly just bad social policy.  Going after immigrants’ friends and families, for example, is more likely to simply degrade respect for the law, rather than result in more deportations.  Keeping immigrants – who have committed no other crime than being here – in county jails, rather than shipping them home, is a poor use of state resources.  Particularly in Arizona, a state that can’t pay its teachers, and is closing down its kindergartens.

Bad policy aside, mostly what sb 1070 represents is pure demagoguery – a cynical appeal for support from right-wing voters, masquerading as a plan to “do something” about illegal immigration.

The Federal Court opinion on sb 1070, The United States v. Arizona, can be found here.  In a preliminary ruling, the court struck down most of the most obnoxious provisions.

Note: I don’t mean, in this post, to take any particular position on immigration.  I am against shoddy law-making, however, of which this abortion of a bill is a prime example.

Hutaree Wedding

I wonder if this is what she imagined her wedding would be like?

Hutaree wedding – link.

So this doesn’t really have anything to do with the law, but Jesus, what a bunch of goobers:

Michigan Militia Group Preparing for Antichrist

Don’t get me wrong: the last thing anyone wants, I think, is a bunch of Jesus-freaks playing dress-up games with live ammo.  But it’s also sad, in a funny way.  I mean, how did these people think they were going to tip the balance between Good and Evil, exactly?  Was it that extra hand grenade they were going to buy, once Angie’s unemployment check came in?

A federal court last week said a teenage girl couldn’t be prosecuted on child pornography charges, after naked pictures of her turned up on the cell phones of her classmates.

According to the ABA Journal, the appellate court said there was “no evidence the girl had been involved in the distribution of the photo.”

“As a result, the district attorney’s threat to prosecute unless she attended a class and wrote an essay” was “compelled speech,” and a violation of her rights.

It’s an interesting case, but I wonder how the essay was “compelled,” if the DA didn’t actually have a case?

Whether “sexting” – sending naked pictures of yourself by cell phone – is a free speech right was a question the court didn’t reach, the Journal says.  Personally, I think it depends on what you look like.

Judge Berchelmann issued his findings the other day in the ethics complaint against Judge Keller.  (This is the case where Keller stopped Michael Richard’s lawyers from filing a last-minute appeal to stop his execution: “We close at 5:00,” she said.)

He says Judge Keller is mostly blameless.  Instead, he finds fault with Richard’s lawyers.  “TDS (Texas Defender Services)” he says, “has only itself to blame” for Richard’s execution.

What’s surprising about Berchelmann’s judgment is that it’s an answer to a question that wasn’t asked.

The question that was asked was whether Judge Keller followed the rules that applied to judges.  By finding the lawyers responsible for Richard’s death he’s answering a different question: “Was TDS responsible for Richard’s death?”

That judges are supposed to answer the question that is presented is a basic rule of law.   (One of the reasons for that rule is illustrated by this case: Not knowing they’d been charged with incompetence, Richard’s lawyers could not present a defense.)

When told Richard’s lawyers were trying to file an appeal after 5:00, Keller had two choices.  She could say, “Judge Johnson is the assigned judge to hear appeals after 5:00,” or she could say, “Tell them we close at 5:00.”

One is consistent with being an impartial (rather than pro-prosecution) judge.

When asked, Keller said she’d do it all over again.

Berchelmann says he does not believe her:

“Although she says that if she could do it all over again she would not change any of her actions, this cannot be true.  Any reasonable person, having gone through this ordeal, surely would realize that open communication, particularly during the hectic few hours before an execution, would benefit the interests of justice.”

Berchelmann may not believe her, but I do.

I’m not sure Citizens United is the disaster some have it out to be. I don’t think we’re  about to experience the end of democracy, or see Ronald McDonald in the White House.

I’m also not sure it’s wrong – in fact, I think it’s correct.

Descriptions of Citizens United in the media have been inaccurate. Which is not surprising.  The opinion is obscure.  The syllabus alone runs to  7 pages, and with dissents and concurrences it all adds up to 183 pages.

The meat of the decision starts on page 27, where the Court quotes the First Amendment:

“Congress shall make no law… abridging the freedom of speech…”

While we typically think of the First Amendment as a right, technically it’s a prohibition.   It’s a limit on government power.  If you accept this, then the identity of the speaker doesn’t matter.  Or, as the Court says, “The identity of the  speaker is not decisive in determining whether speech is protected.”

The Court goes on to identify the law as the kind of law the Court has traditionally been  most suspicious of:  it is a law enforced with a criminal penalty that strikes at speech at the heart of the First Amendment: political speech – in this case, speech about candidates for public office.

The law is “an outright ban, backed by criminal sanctions.  [It] makes it a felony for all corporations – including nonprofit advocacy corporations – either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications…”

The Court identifies the ACLU and the NRA as organizations affected by the ban.  The ACLU could, for example, say “Support candidates who support free speech,” but it can’t say “Support candidate X who supports free speech.”

Finally, the law discriminates: if a corporation owns a media company, it’s free to do as it likes.  The corporations that own Fox News and The New York Times have freedoms other corporations do not.

The Court identifies “strict scrutiny” as the constitutional test to be applied. (Though,  interestingly, does not seem to actually apply it.) The Court points out that, in effect,  it’s returning to an older line of cases, and spends many pages attacking the rationale  behind the decision it’s overturning.

For my part, I have no problem with the idea that corporations don’t have “rights” in the  human sense of the word.  Corporations, are, however, little more than associations of  people, and the mechanisms set up to stop them from identifying with or supporting certain  candidates strike me as cumbersome and unworkable – more likely to snare the innocent than  catch the guilty.  Corporations that really want to get involved in politics, in other  words, are already doing it – they’re just being sneaky about it.

Moreover, the specter of a new flood of corporations flooding the airwaves to tell us whom  to vote for seems farfectched.  Does McDonalds really want to piss off half their customers  by supporting the candidate of the other half?  Does Pepsi really want to be known as “The  Voice of the Republican Party”?

I doubt it.

Grits is always interesting.  I thought this bit was especially  noteworthy:   According to the Office of Court Administration, the Court of Criminal Appeals is less than indiscriminate when it comes to overturning decisions of the lower courts.  Austin decisions came in for special attention 35.5% of the time.  By way of comparison, Dallas decisions merited special attention 3% of the time, Ft. Worth 3.3%, and the 14th court in Houston 2.5%.

In other news, the CCA wrote fewer opinions last year than in any year since 1994.  So there is a silver lining, I guess.