Brutal Justice. (The fall of Lee Baca.)

Written by: Philip Remington Dunn

“For all who draw the sword, will die by the sword.” Matthew 26:52

Former Los Angeles County Sheriff Lee Baca is getting a taste of his own medicine. U.S. District Judge Percy Anderson refused to go along with an initial plea deal of “no more than six months” in custody in exchange for a guilty plea in which Baca would admit he lied to federal officials. Eight other Sheriff’s deputies have already been convicted of covering up and participating in a course of conduct that alleged they violently attacked County Jail inmates. Baca’s former number two, Undersheriff Paul Tanaka got five years after going to trial and being convicted by a jury. Federal prosecutors have now doubled down on Baca by quickly empaneling a Grand Jury to indict him on new more serious charges for which he could serve up to 20 years in prison.

Now that’s justice for you. First you publicly announce to the world - or at least all prospective jurors - that the former Sheriff will admit he is a liar, then you pull the deal and double the charges. Well guess what Sheriff Baca? Welcome to the judicial cattle round up you helped create. Don’t fight City Hall, oh I’m sorry, even worse the government of the United States of America. If you do, they will punish you for it, sort of like the use of a cattle prod on a steer that doesn’t stay in line on his way to the slaughter. The irony here is the tactics being forced upon the former Sheriff are not unlike those he is charged with covering up.

Beating up on uncooperative inmates is as time-honored as street justice itself. Doubling the punishment on a defendant who will no longer plead guilty is business as usual. The only difference is the first is illegal, and the second is the oil that lubricates the criminal justice system. Poor defendants within this system, which constitute the vast majority, have little choice but to take the deal. The consequences of not playing ball with the prosecution by their rules is just too brutal, they hold all the cards in this poker game.

Sheriff Baca is different though, he can afford to match their resources and engage in a creative defense. His wife is actively soliciting contributions for his defense fund. They estimate about a cool million to make it a fair fight. This involves the use of expert witnesses, an opinion for a price. The creative part is the use of a recent Alzheimer’s diagnosis to explain the Sherriff’s “state of mind”, or lack thereof, at the time the crimes are alleged to have occurred. A man with a stellar reputation in the field of law enforcement inexplicably slipped up, now we know why. If nothing else as time goes on, and it will, the defendant’s mental state will continue to slip away and his lack of memory about the allegations against him might well make it impossible for him to get a fair trial. What is the prosecution to do but hire their own “independent” medical expert to examine the patient, and see if she shares the same opinion as her colleague hired by the Defense. What do you bet they disagree, then it will be up to Judge Percy to decide whom to believe.

Let the games begin and may the cause of justice be served, but one can’t help but think Sheriff Baca would rather be in a different arena. If the charges are to be believed its clear that Baca went to the old school of justice. The kind administered on the streets.

Just like Rodney King who when first asked about the beating he received after running from the police, allegedly said, “Well, I ran away didn’t I…” You see, the rules on the street used to be clear, take your chance and if you get away, great. If you get caught, they get to beat you.

Security and cell phone cameras have ruined everything, no more street justice, just new sentence enhancements. Given the choice, I think Sherriff Baca might take the beating, it doesn’t last as long, cost as much, and probably hurts less.

A House Divided

Seventy police officers have been killed in the line of duty in America this year. Twelve military personnel have died in Iraq and Afghanistan combined during the same time period. Where are we truly at war - the streets of America or some far away medieval land?

Police officers have been ambushed by trained marksmen wielding assault weapons and armor piercing rounds, bullets which cut through flack vests and car doors like Swiss cheese. Law enforcement personnel are afraid to do their job as entire neighborhoods are abandoned at night. The mantra becomes “I’m the one coming home to my family”. Violent anarchy has become a way of life for portions of our population. Children must grow up having to sleep through the sound of gunfire in the night while terrified police learn to shoot first and ask questions later.

Who is responsible? Everyone, no one, or maybe that’s just the way it is? Empathy for those who suffer on the “other side” is a lost notion. We no longer seek to “love our neighbor” no matter who they may be. It has become acceptable to pick and choose who is worthy of empathy.

In my over 32 years as a criminal defense attorney in California I have been witness to about everything law enforcement can do wrong. Over the same period of time I have also developed many strong friendships with police and former police officers of goodwill. I have shared the pain of a widow and her family whose husband and father were murdered for no other reason than he was a cop. I have also set an innocent man free who was convicted of murder against the fervent opposition of a prosecutor’s office that knew the truth, and opposed it anyway. This case is chronicled in my book “When Darkness Reigns”.

The social fabric of our culture is unraveling before us, the only answer our society has offered is the use of greater force. Mass incarceration has been the result. It makes us feel safer for awhile by appeasing our ever growing anger. A proposition to make it easier to implement the death penalty, surely that will restore order – that sounds good! Heavier penalties for repeat offenders, even if the offenses are minor – that sounds good! We have even begun yelling “Lock her up!” in response to a presidential candidate – this has become an American mantra. I ask you, where does it all end.

In 1858 Abraham Lincoln reminded our nation that “A house divided against itself cannot stand.” This biblical truth remains as true today as it did then. Let us hope that the soul of  this nation will once again turn to the “better angels of our nature” so that we may avoid the rupture of our national heritage and union. It is not too late.

Decision Time For Republicans; The Convention

“Silence in the face of evil is evil itself: God will not hold us guiltless. Not to speak is to speak. Not to act is to act.” - Dietrich Bonhoeffer

July 18 - 21, 2016is the Republican Convention in Cleveland. Once a time for back room deals and real decision making, the modern party conventions are little more than well orchestrated coronations and choreographed media manipulation. Things are different for the Republicans this year, not because their nominee is in doubt, but rather will Republican political leaders stand with Donald Trump and make the obligatory ringing endorsement. It may play well to Trump supporters at the convention, but history has a way of tracking down politics of expediency. 

The dilemma is to what extent does Donald Trump mean what he says? Does he really want increased patrols of Muslim American citizens? Does he really want to spend $10 - 12 billion building a wall on the border? Will he try to force Mexico to pay for it? Was he just joking when during a prepared speech a plane flew over and he said “that could be a Mexican plane, they’re ready to attack”? Sorry, not funny, and not a little bit scary. What is the compulsion that is so powerful that allows a man who aspires to win the presidency to let such a statement slip from his lips?

History has taught us something about self proscribed strongman leaders that scapegoat religious or ethnic groups of people as the primary cause of a nation’s struggles. The strongman picks a readily identifiable group of people whose language and culture are different from the majority, and of course, they are too weak to defend themselves against the focused anger of the great leader in the making.

The most extreme example of this phenomenon is pre-World War II Germany, Adolf Hitler and the Jewish people. Hitler revealed his intentions in Mein Kampf, disavowed them when running for Chancellor, and carried them out as Führer. President Paul von Hindenburg despised Hitler, but embraced him when his Nazi party won a plurality in the election, and then swore him in as Chancellor.

Any of this sound familiar? “Illegals” are human beings whose existence in our country makes them “illegal” and thus subject to imprisonment as something sub-human, or better stated “alien”. They are different from “us” and therefore inherently dangerous. They must be removed from our presence so as to restore order and prevent them from stealing our jobs and committing crimes. Muslim Americans are facing an even greater threat. They may be American citizens, but that will not matter should the war on terror continue unabated. They are readily identifiable due to their surnames and ethnicity. Should they actually practice their religion, and in doing so dress differently than the rest of “us” the need to protect them from angry citizens will become the rationale for “internment”. Special camps built just for imprisoning an entire group of people until the “war” is over. That’s what happened during World War II to Japanese Americans.

The emergency circumstances of the continuing war on terror will become the rationale for an executive order issued by our newly elected Commander in Chief, Donald Trump. What he needs is a few more major terrorist events on American soil to produce enough fear and anger to get elected. Who would dare oppose the President at that juncture? Punishing the innocent will simply be the price we have to pay for protecting the rest of “us” from the threat that “they” inherently embody. After all “their religion is evil, they don’t think like us, and they don’t have the same respect for human life that we have”. Suicide bombers are all the proof that “we” need that they are different, they are alien, they are sub-human, and thus the prospect of a racist history repeating itself looms before us once again. The time to stand up to this escalating evil is now; silence is no longer an option. Particularly for those best positioned to put an end to it. That’s right, Republican leaders of good will and moral courage. Will they refuse to endorse the increasingly dark tactics of Donald Trump?

This is not to say Donald Trump is Adolf Hitler, but the political strategy that has brought him this far is gaining momentum and it is likely to continue to do so. Blaming someone else for all of our problems has worked in the past and is working for Donald Trump now. Let us see just how many Republican leaders are prepared to become the von Hindenburg’s of their time.

Ronald Reagan was right on immigration.

         "Rather than making them, of talking about putting up a fence, why don't we work out some recognition of our mutual problems, make it possible for them to come here legally with a work permit, and then, while they're working and earning here, they pay taxes here? And when they want to go back they can go back, and cross. And open the border both ways, by understanding their problems. This is the only safety valve they have right now, with that unemployment, that probably keeps the lid from blowing off...And I think we could have a fine relationship." - Ronald Reagan (during a 1980 Republican primary debate.)

         In my lifetime there has never been a better presidential candidate than Ronald Reagan.  Somehow in words, if not always in deeds, he managed to articulate the moral high ground and never relinquish it to his opponents. No matter how significantly I might’ve disagreed with his policy, in the moment, with soaring rhetoric, his ideas and relentless optimism always moved me. The quote above is but one fine example.

         Ronald Reagan established the moral high ground for Republicans. Sadly, the current Republican leadership has abandoned this standard. There is no compassion for the poor people struggling to survive on our southern border, no call for an “understanding their problems,” no common sense solutions calling for “recognition of our mutual problems,” only anger and condemnation. 

          “Build a wall and make them pay for it!” says Donald Trump, and given the chance he would punish all the Mexican people for the perceived wrongs they have inflicted upon us. The existing 650 mile wall cost 7 billion, estimates for Trump's wall range between 10 and 12 billion.

          For twenty-six years I have regularly crossed the border to build houses with Baja Christian Ministries. We can build a three bedroom “A” frame in a weekend for about  $7,000. We have now built over 2,000 homes for families that survive on the prevailing wage of a dollar an hour. They are decent, hard working, humble people who would gladly live in Mexico if it were possible to come here legally with a work permit and “go back” to their own communities.

          This is particularly true for someone returning to his own home and family. Instead of promoting “family values” designed to keep those families intact, we as a nation incarcerate parents for being illegal separating them from their children. This is nothing less than oppressing the poor. What we do is not only unjust it is, as President Regan pointed out, bad policy. We are not the only ones angry about the relationship between our nations. Mexican nationalism is on the rise. Stoking the flames of anger across the border is dangerous to our national security. ISIS has proven that poor people consumed with hatred are more than a serious threat. Equally ruthless drug cartels and gangsters terrorize the Mexican people and destabilize their government. Mass executions of political opponents and other rivals are common occurrence in Mexico, carried out with firearms purchased in the United States. ISIS is nothing less than gang terrorism with a consistent ideology of anger inspired hatred. Islamic terrorism is not the only evil to ever threaten our nation. Kamikaze pilots were the first suicidal bombers we dealt with, and radical jihadists won’t be the last.

          We’ve had one big advantage over the terrorists on the other side of the globe, we can get to them a lot easier that they can get to us. This is not true of Mexico, or the other 300 million people living in squalor to the south of us. There’s a land bridge connecting us that no wall, regardless of height and width, will ever defeat. Fortunately the vast majority of these people share our core values deeply inspired by our common Christian heritage. Let us who are still strong enough to act provide and care for the poor, the widowed, and the orphaned - the least of our brothers and sisters, the least of all of us. We must build houses not walls. We must show compassion not anger and reason instead of foolishness. If we can’t do it simply because it is the right thing to do, at least do it to keep the lid from blowing off.

Racism On The Rebound

“Those who fail to learn the lessons of history are doomed to repeat it” -Edmund Burke

         I came of age during the Vietnam War. Fourteen years of carnage, 55,000 Americans lost, massive protests in the streets, hundreds of millions wasted, utter defeat. I remember thinking to myself, at least we will never be that stupid again. Thirty years later we invaded Iraq and the nightmare continues with no hope of resolution in sight.

         My first boss after graduating law school, as a Public Defender, spent four years of her childhood in a Japanese “internment camp”. She was staunch supporter of civil rights, who’s foundation was steeped in the reality that at any age, an entire demographic of Americans could be rounded up, their property seized, and they imprisoned, simply because they were members of a racial group that was identified as our “enemy”. As she, Joyce Yoshioka, told me what her family had endured, the staggering injustice of it all made me angry. I consoled myself by thinking we will never do that again. I naively believed we would never go back to a time when institutional racism was acceptable to the American people.

          Enter Donald Trump. I have lived long enough to see dark chapters of our history repeat itself.

         Specifically identifying people from an identifiable religion or racial group in order to discriminate against them is racism. It has become acceptable to a large portion of our nations populace to identify Americans of Middle Eastern heritage as potential enemies, and thus discriminate against them all.

         Fear, anger, and eventual hatred are our rationales for racism. It is what they want from us, the end game strategy that terrorism is all about. Make us hate all of “them” as much as they hate us. Hate breed’s hate, evil leads to more evil, and the beacon of light in the world that once was the United States of America is extinguished. “Truth, justice and liberty for all”… if only we can hang onto that which truly made us great for a little while longer.  

“Anyone can convict the guilty, someone who is innocent, now that is something special.”

“Anyone can convict the guilty, someone who is innocent, now that is something special.”

Dark humor such as this is commonplace in the blood sport known as criminal jury trials. Nowhere are the stakes higher and the combatants more competitive. Judges often complain about the level of animosity between defense lawyers and prosecutors. Defense lawyers are seen as obstructionists trying to get the guilty off, and prosecutors are purveyors of pain demanding unjust convictions and cruel sentences. Remarkably, these comments come from a reasonably healthy criminal justice jurisdiction where the defense still has the heart to fight back.

According to the National Registry of Exonerations, last year there were a record number of wrongful convictions reversed, 149, which is 10 more than in 2014 and higher than any other recorded year. Since the group began keeping records in 1989, there have been more than 1730 such documented cases. These miscarriages of justice are no small matter, these are serious cases in which people’s lives were entirely taken from them, families destroyed, children taken from their parents. The scientific breakthrough of DNA testing is responsible for most of these exonerations. But what if there is no DNA evidence, which is usually the case, how many men and women sit in prison for a crime they did not commit with no magic bullet to prove their innocence? Does anyone care?

Witnesses may recant their testimony, even explain their motive for lying, new evidence of innocence may be discovered, and of course the most common false convictor, yes, the jail house snitch is a liar, he did make up a story to get his sentence reduced, he’d done it before and he’d do it again. Countless Writs of Habeas Corpus that present this kind of exonerating evidence are almost always opposed by prosecutors and routinely denied by judges. To admit the system made a mistake is an attack on its credibility, the inherent presumption of guilt, a serious blow to the conviction machine. In a rare instance when a judge has the integrity to grant a hearing to publicly test the evidence, the games begin.

I spent months in one such hearing where the evidence of innocence was overwhelming but that didn’t slow the prosecution. It is one thing to try a case, but to come along later and say you got it wrong, take away one of their wins, that’s when it gets ugly. Fortunately, we had a courageous judge, not up for re-election, and an innocent man was released after five years at Pelican Bay on a 44 to life sentence.

What happened in my case is rare. We had the assistance of honest and dedicated law enforcement personnel from another jurisdiction that helped balance the scales. Most prisoners have no such resources, they are the poorest of the poor, and until recently no one would help them. DNA changed that; today innocence projects have sprung up across the nation, thus the reason for all the exonerations. It is long overdue, and they are just getting started.

Chief Justice Oliver Wendall Holmes once said, “It is better to have a criminal justice system that acquits 100 guilty men, than one that convicts one innocent.” This is the most noble of sentiments, once spoken by the highest judge in the land. May we never forget this wisdom, for if we do, none of us are safe. 

The Power of the State... can be a terrifying thing.

The Sixth Amendment of the United States Constitution: “In all criminal prosecutions, the accused shall enjoy the right… to have the assistance of counsel for his Defense.”

The United States government, the People of the State of California, that’s the law enforcement juggernaut coming after the accused. Agents, detectives, bailiffs, deputies, police officers, D.A. investigators, crime lab experts, victims’ advocates, forensic pathologists, and so many more are working to convict the accused. Standing between them and her client most often is one lone criminal defense attorney.

They good ones have the audacity to question the State’s witnesses, challenge their experts, and insist upon a fair trial before an impartial jury. Most of the time law enforcement tolerates the defense, particularly when they get their conviction, but look out when they lose. Just ask James Crawford of Orange County; he not only won a new trial for his murder client, but he did so by proving the prosecution cheated. The old jailhouse snitch, who “heard” the accused’s confession, hadn’t worked as an informant before, or had he? Crawford kept fighting and got an order demanding the “work” history of the informant – turns out he “works off” his cases all the time. This is something a jury out to know in a fair trial. Case reversed.

Crawford recently did something just as unforgiveable – he came to court and represented a witness. Now if you really want to get them angry, stand between them and someone they need to support their case. I once lost three days in a grand jury waiting room because I represented a client who intended to take the Fifth. Couldn’t they find time to fit her in for a five-minute proceeding? Or, was it they were hoping I would leave and then they could find out if she wanted to change her mind about testifying?

Crawford got his face beat in for standing up to a D.A. Investigator. He didn’t just take it when called “sleazy” in front of his client and an interpreter. While seated, Crawford was hit ten times in the face and then slammed into a wooden bench, leaving his face a bloody mess. Crawford’s “one-sided version is simply not true,” according to Tom Dominguez, who as President of the Association of Orange County Deputy Sheriffs represents the investigator. Of course, the sleazy defense attorney is lying again; wait until you see the other guy! Oh wait, they haven’t released his name, no photos, no arrest, and the Sheriff’s Department is still “investigating.”

In a police state, the first to be attacked are the free press and the opposition brave enough to oppose them. Yes, seeing my brother defense lawyer publicly beaten for maintaining his dignity and doing his job is more than a little intimidating. Perhaps that’s the point. But who knows, maybe they will arrest one of their own, the spotlight on this one. If they do, you can bet the investigator is all lawyered up. Too bad Crawford’s his victim, he could use a courageous defense lawyer right now.

25 years after Rodney King.

It all started with Rodney King, the anger that played out on Foothill Boulevard twenty five years ago started a chain reaction of brutality that still has not played itself out.

Rodney didn’t see it that way, he was old school, and he knew the unwritten rules of Chief Daryl Gates, LAPD. As a convicted felon he’d been around the block a few times before getting high (likely on PCP) and drunk and engaging officers in a high speed chase late one night. When first interviewed about the beating he reportedly said something to the effect of “Well, I ran, didn’t I?” And he got caught.  Street justice if you run and get away, well, you got away.  But if you get caught, you get beat.  Those were the rules of the street.

Technology changed all that; the video didn’t lie.  No carefully contrived set of reports about how the suspect “violently resisted arrest,” could justify the savagery of hitting and kicking a man, lying face down on the ground, with aluminum nightsticks over and over again.  Some communities were appalled by what they saw, others were very, very angry, because it rivaled a truth they had been living for decades. In their neighborhood LAPD was little more than an occupying army, order maintained through fear and oppression.

Then it got worse; much worse.  The prosecution somehow allowed the trial of the four officers involved to be heard in Simi Valley in front of a jury having no African Americans. The resulting acquittals moved us from anger to hatred.  The worst kind, race-based hatred.  Fifty-four died, fires burned, people indiscriminately beaten, a city at war with itself.  Rodney tried, “Can we all get along?” but no we couldn’t.  A real, occupying army, the National Guard and martial law was our only answer.

Did we learn anything or did we just get meaner?  LAPD has made real strides – community policing, new use of force protocol, but the stick is still swinging.  Not so much on the street anymore, but back in the jail and in the courtroom.  Punishment is no longer so swift, but more brutal than ever.  Sentences for guys like Rodney King doubled, then tripled in the last twenty-five years.  Given a choice, I’d bet Rodney would choose the street. 

Felony Murder Rule; how we legalized "Making a Murderer."

Right now at Chowchilla State Prison for Women, there is an inmate; let’s say her name is Tara, who is serving life in prison without the possibility of parole.  One afternoon in October 1993, Tara and two of her friends were driving around casing liquor stores to hold up.

Tara didn’t shoot anybody, but her co-defendant did.  Tara, being just 18 when questioned by police, first said she was waiting in the car when the shooting occurred, but later said she witnessed the shooting. Since Tara was found to have “aided and abetted” armed robbery she was “guilty of murder, under a theory of felony murder.”  Further, “It is not required that the defendant be present when the death occurs.” Still further, the “perpetrator,” that is, the shooter, does not have to be convicted of murder in order for the “accomplice” to be convicted of murder. “A person may be guilty of felony murder even if the killing was unintentional, accidental or negligent.”  (People v. McDonald (2015) 238 Cal.App.4th 16, 22.)

 In Tara’s case, her perpetrator was adjudicated as a juvenile and released after three years.

The best police detective I ever knew once told me “There is a real difference between someone who will pull the trigger, and someone who is just there when it goes down.  Some people are killers, most are not.”

Tara doing life imprisonment without the possibility of parole for a killing she did not commit is unjust.  It may be legal, but it is grossly inequitable.  This is not to say she did not participate in a crime for which she should be punished, but it is to say that the punishment does not fit the crime.  And Tara’s case is not unusual; four boys between the ages of 15 and 18 years are still serving life sentences for first degree murder in a marijuana deal that turned into a brawl in 1995. (see: The Holland Boys)

It is time to do away with the disproportionate cruelty of the Felony Murder Rule.  No law on the books makes it easier to convict someone of something they didn’t actually do.