Under Duress

I was recently appointed to represent an eleven-year-old boy accused of burglarizing a school. The boy claims that he was bullied into it by older, tougher boys. While researching the defense of duress, I could not get out of my head the following lyrical gem from Mr. Don Van Vliet:

I saw you dancin' baby in your x-ray gingham dress
I knew you were under duress
I knew you were under your dress
Just keep comin' Jesus
You're the best dressed*

Now it's in my head again.

* From "My Human Gets Me Blues" on the Trout Mask Replica album.

Strict Liability Haiku

All Poetry Is Crap Except For Mine

Virgil was a manatee,

Verging on insanity.

The Truth Is Out There

Perhaps because of the tendency of pundits to refer to the jury trial as a "search for truth," many of my clients are unusually eager to go to trial, confident that when the truth is revealed to the jury, a not guilty verdict will be guaranteed.

I tell these clients that, as unjust as it may seem, the truth does not matter. What matters is what will be believed.

I am not convinced that hate crime legislation amounts to unconstitutional Orwellian punishment of "thoughtcrime."
(Not that I wouldn't try and argue that to a jury, should the need arise.)
Hate crime laws punish discriminatory conduct, not offensive thoughts.
I do still have some objections to hate crime laws, however, and I would be very interested to hear opinions on these objections or on any other aspect of hate crime prosecution.

Hate Crime Legislation is a Form of Affirmative Action
Hate crime laws are intended to recognize the fear instilled within a class of people when bias-motivated crimes are committed against members of that class. This is done by imposing additional penalties intended to provide a greater deterrent than for the "hateless" version of the same crime. The end result is that blacks and homosexuals are provided special "protection of the law" from racist or antigay crime. Why should little old ladies receive less protection from crimes committed against them because of their frailty. Why are children less worthy of special protection from harm?
Isn't this affirmative action? A little "extra" government help intended to redress the oppression and victimization of blacks, etc?

The California Law is Poorly Drafted
The California hate crime statutes do not require bias against the victim as a necessary element, only that the crime be committed, in whole or in part, "because of one or more" of certain listed actual or perceived characteristics of the "victim," including disability, gender, race, religion and sexual orientiation.
What then of the opportunistic robber who steals from a blind man to avoid identification? The crime was certainly committed, at least in part, because of the disability of the victim. But the robber has no animosity toward blind people.
And what about the neo-nazi who spray paints a swastika on a bus shelter directly across the street from a jewish community center? The victim of the vandalism is the bus company. The perpetrator likely did not know or care about the any of the "characteristics" of the bus company, only those of the many jewish "non-victims" to whom the content of the graffiti was directed.
Gender is a listed characteristic. Is all heterosexual rape and domestic violence hate crime because it is committed "because of" the victim's gender? If so, then why should the bisexual "equal opportunity" rapist be punished less severely than the heterosexual rapist?

Hate Crime Laws Are Unduly Alarmist
Proponents of hate crime laws like to tell us about the under-reported epidemic of hate crime. The truth of the matter is that in California last year, there were 1,409 reported hate crimes, but only 139 convictions. Assuming that far fewer than 90 percent of the perpetrators eluded capture, these figures would seem to indicate over-reporting of hate crimes.

Hate Crime Update: Dead Brit DJ John Peel Subpoenaed to Render Expert Opinion on the Varying Gayness of New Order's Music Throughout the Eighties

The Mr. O "hate crime" prelim finally got going at around 3 pm yesterday, which left me about 10 minutes to begin cross-examining the "victim" before having to end for the day. The hearing is expected to last another hour or two, and will resume in a couple of weeks.

After establishing that the loud music emanating from the victims' car would have been the only thing that might have given the defendants reason to believe that the victims were gay, the following exchange occurred:

ODL: What kind of music were you playing on your car stereo?
Witness: I think it was New Order, Techno.
ODL: New Order and Techno? Or techno New Order?
W: I don't see how that's relevant.
ODL: Well, you're going to have to answer unless the prosecutor objects.
W: It was New Order.
ODL: Late eighties New Order or early eighties New Order?
W: Late eighties, I guess. It was the "Substance" album, which I think was released in 1987.
ODL: Isn't it true that although "Substance" was released in 1987, "Substance" is actually a retrospective compilation containing tracks which were first recorded in the early eighties?

Ha!

Hate Crime? No, I Love It!

Well, the last couple of weeks at work have been fairly uneventful, hence the recent topical wandering on this blog. But later today, that may change. This morning, I will be appearing on behalf of Mr. O at his preliminary hearing. Mr. O (along with two cohorts) is charged with a "hate crime," based on the following scenario:

Mr. O and his friends are in the drive-thru lane at Taco Bell. Two guys in the car behind Mr. O's have their stereo up more than a tad too loud. Mr. O and/or one or more of his friends tell them rather impolitely to turn down the stereo. The language used in the request includes "faggots," "queers," and "other derogatory terms." The guys with the loud stereo retreat out of the drive-thru lane but are pursued by Mr. O and friends who run them off the road to deliver a misdemeanor battery to one of them and a felony vandalism to their windshield. Again, epithets beginning with F and Q are hurled.

Is this a hate crime? To be a hate crime under California law, discriminatory motive must be a "substantial factor" contributing to the selection of the victim. In America, merely calling someone a "faggot" is not against the law, even while you're punching them in the face. Certainly the punching to the face is illegal, but the accompanying insult adds nothing to the culpability of the assailant, unless the victim is being punched because he is gay.

In my opinion, the question of motivation in Mr. O's case might well be resolved by finding out one crucial fact that was not included in the police report:

What was the loud music playing on the gay guys' stereo?

Oh, and I decided to take Nimiwey's advice and not argue to the judge that the hate crime enhancement should be stricken because it is gay.

Fictive Personae (Part One)

A recent post on the lovely and mysterious Nimiwey's blog regarding the unique modern phenomenon of involuntary internet imposture prompted me to regurgitate the following:

The majority of American courts do not accept Multiple Personality Disorder as a defense to murder. Under the prevailing "Alter Approach," criminal intent of the secondary "alter" persona is sufficient to impute culpability to the defendant, regardless of the host persona’s awareness of the crime. The fact that the culpable persona is most likely involuntarily absent at trial does not prevent prosecution and punishment of the host persona.

Corner Light by Tom Rickman

He Said "Arson" (Hehehe)

In recent months I've handled several juvenile arson cases, ranging from a bored 14-year-old igniting the tampon dispenser in the school bathroom to a couple of 17-year-old stoners burning down a house after watching Val Kilmer lip-synch "Light My Fire." Almost all of these kids were charged with arson and possession of an incendiary device (usually the cigarette lighter found on them).

I think I am beginning to understand why kids start fires, but I am a long way from figuring out how possession of an incendiary device can be charged as a separate offense to the arson when the "device" is merely a book of matches or a cigarette lighter.

An incendiary device is defined by statute (California Penal Code section 453) as "a device that is constructed or designed to start an incendiary fire by remote, delayed, or instant means, but no[t] [a] device commercially manufactured primarily for the purpose of illumination." (An "incendiary fire" is defined as "a fire that is deliberately ignited under circumstances in which a person knows that the fire should not be ignited"; an arson, essentially.)

If "devices" such as matches and cigarette lighters fall within the statutory definition, then shouldn't that make possession of an incendiary device a lesser included offense of arson?

Unless there's a way to start a fire without an incendiary device.

"Do What Thou Wilt Shall Be The Whole Of The Law"

A particular post on the intriguing Mental Rebellion blog brought to mind the above quotation by Aleister Crowley (aka "The Great Beast 666").
Well, just like libertarianism and pyramid schemes, these "words to live by" sound pretty good (especially to the egotistically inclined) until you do the math. In Crowleyworld, you'll need either a very big gun or a very deep hole.

(In law school I looked for a long time for a t-shirt w/ Crowley's ugly mug and the "Do What Thou Wilt . . ." slogan. I never found one. Today, I think I would prefer Judge Dredd's "I Am The Law!")

Evolution Made Me Do It

It's a lot easier to empathise with clients accused of murder when you realise how we are all genetically predisposed toward homicide, thanks to evolution. Some of us just do a better job of suppressing those urges than others. And that's only because we fear the repercussions of getting caught.

Today I finally finished reading "The Murderer Next Door: Why The Mind Is Designed To Kill," by David M. Buss, Professor of Evolutionary Psychology at the University of Texas. His book, which includes gruesome murder fantasies gathered from "regular" folks as part of years of research on the psychology of homicide, as well as several bizarre tales of tribal shenanigans, ends on this stark note:

Be aware of just how real the threat of murder is, especially by those we know and those we love. Beware of the man whose uninvited sexual stare lingers a second too long. Exercise caution around a stepparent who just might prefer that you didn't exist. Take heed of the rival who sits silently seething at your success. Think twice about the stoic whom you have just humiliated in front of his peers. Watch out for the ex-mate of the lover you've just lured away. Be wary of the romantics who thought you were "the one" before you unexpectedly spurned them. Be vigilant of the mate turned stalker who just won't let go. Murderers are waiting, they are watching, they are all around us.

Easily Distracted

This morning, my client sat down next me at his preliminary hearing wearing a GIANT PUFFY COAT.

As a strangely boyish, yet monotonous police officer began to testify for the People, my mind began to wander a little . . .

Michelin man. External repairs needed on the Space Station Norteno. Macy's Thanksgiving Day Parade. Robby the Robot.

My client began to wriggle around. The coat was coming off. What would emerge? I scooted over a couple of feet to make room for this frenetic metamorphosis.

As it turned out, it was more Russian Doll than Monarch Butterfly. Relatively speaking, the puffy coat had not really added much bulk at all to its brick shithouse wearer. What emerged was simply a slightly smaller, whiter, fleshier, Michelin man.

But now the coat was gone, I could concentrate on this guy's HUGE ARMS. But it wasn't the hugeness of those arms that kept my attention. I had seen many huge arms before. It was the short stubbly arm hair like he had shaved it a day or two ago. Hmm. Never seen that before.

Why would this man shave his arms? What kind of potential arm-hairiness would warrant such a thing? Why had he let it get all stubbly like that?

And why was the cop was relating hearsay without being Prop 115 qualified.?
"Objection!"

Pass the Adderall, please.

What Would YOU Do? (Part 2)

Comrade Nebur and I faced this dilemma a little while back . . .

Your client has the chance of a dismissal with prejudice because the DA did not properly notice a request for a continuance. However, if you waive the defect, you keep the goodwill of your adversary and future clients will benefit.

What do you do?

N is for Nemesis

I had planned on writing a short post about something rather annoying that happened in juvenile court yesterday involving my nemesis, the zealous prosecutor of children, Mr. N. But then I thought I should reflect a short while before posting.

By the way, I just put up this nifty flickr "rogues gallery" thingy to the right. Click on the little pictures for seconds of fun!