Arizona Criminal Law & Sex Crimes Post

The New York Times today had an commentary entitled "How to Heal Balkan Wounds for Good" by David L. Phillips, who claims to be a human rights activists. While most of the article is typical neoliberal nonsense, including the standard casual reference to the moral value of "free markets", what really caught my attention was his blanket condemnation of Serbia and Serbs: 

In contrast, Serbs have had a history of intolerance against non-Serbs and Muslims, and of aggression and forced expulsions to create a Serbian homeland in territories where they have historical claims — notably Kosovo, but also Bosnia.

Unfortunately, this "black and white" ethnic chauvinism is all too common, and perfectly acceptable in mainstream media when the victims of it are powerless. 100 years ago it was fashionable to hate the Irish and all Catholics. 50 Years ago anti-Semitism was rampant. Today, hating Serbs, and ironically the Serb's putative victims, the Muslims, is very much in vogue. 

For a detailed criticism of Mr. Phillips, see Prof. David Gibbs' review of Mr. Phillips' book "David L. Phillips. Liberating Kosovo: Coercive Diplomacy and U.S. Intervention."

Liberating Kosovo is useful primarily as an illustration of victor's history, and the problems that are inherent in this genre. But this book is not serious scholarship, and I am surprised that MIT Press agreed to publish it.

Prof. Gibbs also wrote a letter in The Economist "On Croatia, India, South Africa, service stations, free trade, Iraq, Yale, the Spartathlon, our cover" when mainstream corporate media white washed Tudjman's crimes against Serbs:

When discussing Balkan scholarship in a recent article (“Writing the past”, January 5th), you mentioned the flight in 1995 of ethnic Serbs from the Krajina region of Croatia and noted the uncertainty about whether this incident should be viewed as a case of ethnic cleansing or a consensual exit. The facts strongly suggest that the Krajina Serbs were indeed ethnically cleansed.

You can see Mr. Phillips' biography here, and his email address is dp2366@columbia.edu. The New York Times email address is letters@nytimes.com. I wrote him and the New York Times an email asking to remove the offensive paragraph from his commentary and apologize for its hateful content. I suggest all readers of this blog who find his language offensive do the same. My email was as follows:

Please remove the sentence in your New York Times commentary regarding Yugoslavia "In contrast, Serbs have had a history of intolerance against non-Serbs and Muslims, and of aggression and forced expulsions to create a Serbian homeland in territories where they have historical claims — notably Kosovo, but also Bosnia." Also, please apologize to all Serbs for such a hateful, not to mention incorrect, comment.

For more information on the neoliberal war against prosperous Yugoslavia, see Neil Clark's many articles here.

The testimony from defense expert on domestic violence Alyce Laviollete triggered an "unusual" cross examination by government prosecutor Juan Martinez regarding Snow White and the Seven dwarfs. Was it effective? Is Mr. Prosecutor right that Ms. Laviolette will say anything, even a fictional character is abused? Or is the government desperately attempting to distract the jury from the Travis Alexander emails?

ZoeB from Pitchforks will be my special guest as we examine the psychological testimony, evidence, and bizarre developments in this fascinating trial. Be sure to follow me on twitter @vlga, and like my facebook page. You can also go here to sign up for updates on future podcasts.

And be sure to see the excellent posts "Snow White’s Brush with Maricopa County Department of Social Services" and "Juggling Apples and Meatballs" by Pitchforks: 

[Jodi Arias Prosecutor Juan] Martinez is floundering now and is determined to make the associations that LaViolette had not made in her talk. He tries to portray her as “not wanting to talk about Snow White now”, when she did talk about her then. He has become ridiculous and is beginning to look sloppy. He obviously did not take the time to watch the video and is flying by the seat of his gaping pants.

Ms. Arias has, either by sheer blind, dumb luck or incredible genius, placed the government on the horns of a dilemma. The government's case against Ms. Arias, for over 4 years leading up to her prosecution for first degree murder, was that she stole her grandfather's gun with the express intent of murdering Mr. Alexander and that Ms. Arias killed Mr. Alexander with that same weapon.Then, just a few days before trial started, the government changed its position because the medical examiner testimony was that Mr. Alexander died from multiple stab wounds. The gun shot came after Mr. Alexander was fatally wounded.

Thus the government faces the following dilemma: either Ms. Arias is truthful and accurate when she testified she shot Mr. Alexander first. In that case the government would be validating, at least implicitly, her testimony that she killed Mr. Alexander in self defense. Or the government has to explain why if Ms. Arias stole a gun to kill Mr. Alexander did he die from knife wounds?

So far the government has not explained its position with regard to the dilemma during the entire course of the 6 week trial. My suspicion is that the government will cravenly wait until closing argument to try to do so. The most likely explanation I have heard of so far from the peanut gallery is that Ms. Arias tried to shoot Mr. Alexander first but the weapon jammed. Then after knifing him 29 times, she shot him while he was already dying or even dead. See "Gun Jodi used jammed, forensic expert believes":

HLN’s Dr. Drew welcomed forensic crime scene expert Randolph Beasley to the show. Although Beasley has nothing to do with the Arias case, he knew both Alexander and Arias and gave his opinion on what he believed happened on that fateful day nearly five years ago.

 “To me, what makes sense on this case is that Jodi did not bring a knife to attack Travis,” he said. “She brought a gun. It's obvious she premeditated this. When she shot him in the bathroom when he's in the shower, the gun jammed, so she couldn't finish him off.”

He added, “When the gun jammed, she panicked. She had to go ahead and find a knife … and finished him off.”

The only problem with this explanation is that, as far as I know, Ms. Arias was never a Navy Seal. It is not easy to unjam a weapon. It takes quite a bit of training and skill to be able to do so. Pulling the trigger on a jammed weapon will not accomplish anything. It is even harder during a life and death struggle to have the presence of mind to forgo a jammed gun and reach for a knife, especially when the opponent is much larger and stronger.

Whether or not Ms. Arias was the aggressor or victim, whichever the case, if in fact she first tried to shoot Mr. Alexander and the gun jammed, she was then in a struggle for her life. I have a very hard time believing what will probably be the government's final argument: she stole the gun to kill him, when she tried to kill him, motivated by sexual jealousy, the gun jammed; then, while in a life and death struggle with Mr. Alexander, she put the gun to the side and stabbed him multiple times; and after he was mortally wounded she shot him once in the head. So far the overwhelming evidence is that Ms. Arias knew next to nothing about guns and was not some Nikita-esq femme fatal.

Of course, this all assumes the jury believes the government's assertion that Ms. Arias stole the weapon with which she shot Mr. Alexander. For a detailed criticism of this point, see the excellent post "Still in the Dark After Dark: “Pathological” Lying About The Gun(s)" by "Pitchforks". There is also quite a bit of good information at "You Could be Wrong".

For regular updates regarding the Jodi Arias trial, you can follow me on twitter @vlga and like my page on facebook. Pitchforks is also on twitter at PitchforksPost.

P.S. In response to all the comments and tweets that I have received along the lines of "premediation is just so obvious, etc...", I would suggest reading Nassim Taleb's wonderful book "Fooled by Randomness". "Black Swan" is also from Mr. Taleb and is much more famous but not nearly as good.  John Meynard Keynes, the economists of the 1930s who saved capitalism, wrote "A Treatise on Probability" that is along the same lines.

What I am specifically referring to is what Taleb and Keynes called decision making under uncertainty. No matter how much information we gather, we cannot know for sure what Ms. Arias was thinking in the moments leading up to her killing Mr. Alexander, and I doubt if Ms. Arias even knows for sure what she was thinking then. Figuring out what happened in the past is just as hard as predicting the future. Figuring out her state of mind is no easier than knowing what the price of gold will be in 50 years. We just don't know.

Under these sorts of conditions then, we resort to convention or what Keynes called heuristics. That is because even though we are operating under uncertainty, we still have the practical problem of deciding what to do in these sorts of cases. My position is that a thousand years of common law is pretty good convention, and it would dictate we do not find someone guilty of intent to kill without either direct evidence of premeditation or an overt act before the killing. The consequences of getting it wrong and convicting her of first degree murder are too great, much worse than being mistakenly too lenient and convicting her of murder in the second degree. 

As far as I am concerned, the only issue in the Jodi Arias trial is has the government proven premeditation. That of course, is important because if the government has not proven premeditation, they cannot convict her of murder in the first degree and thus the death penalty is off the table. And while the government has also alleged murder in the first degree by way of felony-murder, that allegation is so specious as not to even warrant a response.

The government has not proven premeditation, and in fact, could not do so under any circumstances. Without direct evidence, either a confession by Ms. Arias that she intended to kill Mr. Alexander, as in "I wanted to kill to him", or an overt act such as hiring a hit man or waiting in wait in ambush, the government cannot prove premeditation beyond a reasonable doubt. Note that I am not saying she did not intend to kill him or that there is not very good reason to suspect that she intended to kill him, just that the government will not be able to prove it beyond a reasonable doubt. And that has been clear since day one. Someone asked me on twitter a question along the lines of "she lied so she doesn't get the death penalty?". My answer, yes, exactly right. To paraphrase Lt. Kaffee from a "Few Good Men", it doesn't matter what we know; it only matters what we can prove.

Instead of proving premeditation with direct evidence, the government is trying to do so with circumstantial evidence. So far the attempt has been, with the most charitable interpretation possible, pathetic. While the law does not recognize a distinction between direct and circumstantial evidence, there is a jury instruction that says exactly that, the inference the government wishes the jury to draw from the circumstantial evidence is, dare I say, comically lacking.

If they could have proven the gun that Ms. Arias used to shoot Mr. Alexander was in fact stolen by Ms. Arias then that would be very good evidence of premeditation. But they have not done so; nor are is the government able to do so. On cross examination, the government has asked her number of questions regarding gas cans. This could be fruitful to the government's allegation of premeditation, but the prosecution has not closed the loop on this point.

In particular, my assumption is that there trying to prove Ms. Arias used gas cans to avoid being seen in Arizona at a gas station by either a witness or cameras. That, if true, would show planning of at least something. So why then didn't Mr. Prosecutor flat out ask Mr. Arias if that was her intent? Instead, he avoided asking her that question because of one thing: fear. Mr. Prosecutor is afraid she will have an answer for the question and the jury will believe her. So he is instead doing what trial lawyers have been trained to do, save the ultimate question for closing argument when the other side has no chance to contradict your argument.

Under all circumstances, such a approach is cowardly and craven. In the particular circumstance of this one in which a prosecutor's job is not to win per se but act as a "minister of justice", it is downright evil. When someone, anyone, as in Jodi Arias, is on trial for her life, she should be given every opportunity to directly answer all the government's accusations in her own voice directly to the prosecutor's face. It should then be up the jury to decide who to believe with all the facts before them. The jury should not be in the unfortunate position of deciding the fate of a person, as they are in now, without all the facts before them because the prosecutor was too afraid to ask the defendant the ultimate question.

But assume for the sake of argument she was asked that question and did not have a good answer for it. What was she planning? Was she planning on killing him since the moment she asked to borrow the gas cans in May, or since she left for her trip from California? If she was planning on killing him before she left on her trip, then why did she stay with him for 8 hours and have sex with him on the same day? Does that really sound like a plan on murdering Travis Alexander? I don't know, and even more more importantly, the government cannot answer these questions without speculation or guess work. The guesses may be reasonable and even probable, but that is not proof beyond a reasonable doubt, and certainly not proof enough to send Ms. Arias to death row.

As far as whether her testimony is believable, she was not untruthful in the sense she was deliberately testifying falsely. She believes what she is saying. While it may not be in fact what objectively happened, I have no doubt that she either always believed what she is saying since day one, or in the 5 years since Mr. Alexander's death has convinced herself of what she is saying is true (this is called the "narrative fallacy" made famous by Nasim Taleb in "The Black Swan"). By way of example, Sarah Palin says she doesn't believe in evolution and thinks the Earth is only 5000 years old. Those statements are nothing short of ridiculous, completely contracted by all scientific evidence, and obviously not true, but she is not a liar because she honestly thinks those are the facts.

As far as the numerous accusations she was being evasive or deliberately forgetful, in that regard her testimony is no worse than the typical police officer testifying on cross "I don't remember, I don't recall, or I don't know", something that I have personally experienced dozens of times.  

That being the case, it is obvious that the government overcharged her and should have accepted her offer to plead guilty to murder in the second degree some time ago. That way, the government could have avoided this silly fiasco that has hardly made Arizona look civilized and respectable, ie, "bull dog" or "mad dog" prosecution. Once the jury comes back with something less than a conviction for murder one, I hope media will aggressively question the Maricopa County Attorneys' Office why they wasted so much time and money on a wasted prosecution. I hope they will ask MCAO why did they refuse to accept Ms. Arias' plea to murder two with the hopes of garnering fame and attention? While nature may be "red in tooth and claw", do we want that to be the philosphy of our prosecutor's office?

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Last week, a local Phoenix attorney, Mark Hummels, was shot and killed by disgruntled litigant Arthur Douglas Harmon after leaving a mediation. Just two days ago, a prosecutor in Texas, Mark Hasse, was killed leaving court. While most lawyers have no problem laughing at the profession, even repeating lawyer jokes, the idea that any targeting any profession for the simple fact of what they happen to do for a living is vile. See the story I did with Adam Longo of CBS 5 "Lawyers often targets of threats and violence": 

As an outspoken advocate of gun control, Phoenix attorney Vladimir Gagic knows that plenty of people will not agree with his positions. He was not, however, expecting vulgar email threats after sharing his views on a local television station several months ago. One man wrote to Gagic:

(expletive deleted) YOU you piece of (expletive deleted) "Vladimir" - you are a dumb (expletive deleted) ... I can't believe you spout such (expletive deleted) in AZ...It must suck to have to look over your shoulder every day."

Gagic says he and his fellow colleagues in the legal profession deal with threats routinely. "It's very common. It is extremely common," said Gagic

...

"It's a sad commentary in our country for professionals who wear suits and ties and carry a briefcase. That's our weapon. Now, we might have to carry a Sig Sauer or a Glock in the other hand," said Gagic.

The Jodi Arias defense team will soon present its case and evidence and among other things, there is a lot of speculation about whether Jodi Arias herself will testify. But despite the fact that Ms. Arias has yet to testify, or even certain if she will, that has not stopped people from all over America, the world even, from have already come to the conclusion that Ms. Arias is in fact not just a murderer and a liar, but a psychopathic killer. For example, see "Inside The Mind Of Accused Murderer Jodi Arias" by David Lohr. 

...women like Arias often meet the criteria for both sociopathy or psychopathy, according to Wendler.

"The characteristics of psychopathy include disregard and violation of other people's feelings, wishes and rights," Wendler told HuffPost. "These individuals use deceitfulness and manipulation to obtain what they want (pleasure, profit, etc.). They are often called pathological liars. They are self-centered and show reckless disregard for the safety of others; they lack empathy towards their victims and have little or no remorse about their criminal actions."

What entitles anyone to conclude Ms. Arias is a psychopathic killer is beyond me. She may very well be a killer, a liar, and a psychopath, but the evidence of that last label is pitifully weak. For one thing, psychopaths are very rare, maybe something like 1 to 5% percent of the general population. One study found that only about 1.9% of women fall into the anti-social psychopath group ("Psychopathy among prisoners in England and Wales"). Keep in mind we are not talking about psychopaths in general but the much smaller subgroup of criminal or anti-social psychopaths. Second, the crowning definition of a psychopath is not just their willingness to lie, but their singular talent in being able to do so convincingly.

So far, the prosecution has presented a lot of evidence that Ms. Arias is not just a liar, but a terrible liar at that. The difference between between Ms. Arias' statements and demeanor with, for example Scott Peterson, is striking. According to the prosecution Ms. Arias has consistently changed her story from one version to the next, each seeming more impossible than the other. If in fact that is the case, that sounds like someone who is trying to get away from trouble and is terrible at doing so. That does not sound like a anti-social psychopath at all. 

Lying is something everyone does, especially to the police "officer, I was not driving that fast; officer, I stopped at that stop sign, I swear; officer, I only had two beers, etc...". People even lie to their doctor, risking their life for nothing more than not revealing an embarrassing secret. You are probably asking yourself so what? So what if Ms. Arias is lying, but is not a psychopath? The distinction is important because the fact that Ms. Arias may have lied to the police about what happened is very weak evidence she is guilty of murder, certainly very weak evidence of premeditated murder.  

Most people, even completely innocent people, when confronted with the stress of a hostile police investigation will not be completely truthful and will say things that are inconsistent, just like Ms. Arias has done so far. If, however, she is not just a liar but is in fact a psychopath, then the prosecution theory of premeditated first degree murder makes a whole lot more sense. Then the prosecution theory is not just "she's lying" but "but she is lying to cover up the premeditated murder and not just because she is scared and confused". If she was an anti-social psychopath, the story she told the police would have been much more convincing and rehearsed. But she is nothing more than an amatuer liar, hardly a criminal mastermind.

The fact that Ms. Arias may have lied to the police is evidence she lied to the police, not of first degree murder. Up to now, the State of Arizona has done of very good of proving she is guilty of the first accusation and innocent of the second. 

Jodi Arias is on trial for alleging murdering Travis Alexander (see “Jodi Arias: Who Is the Admitted Arizona Killer?”).

Jodi Arias is a woman that many can't keep their eyes off of--a soft-spoken, small-framed 32-year-old who last year won a jailhouse Christmas caroling contest. But she is also an admitted killer who is now on trial in Arizona for the 2008 murder of her ex-boyfriend Travis Alexander.

So what? Why has that simple statement generated so much attention around the world? An ex-girlfriend murdering her ex-boyfriend, while not as common as the other way around, happens every single day multiple times around the world.  What is so special about this case then?

The obvious answer is that while the procedural facts of the case are not that unusual, there has been quite a lot of attention focused lately on female killers. Everyone is well aware of the danger that single men armed with dangerous weapons pose, so when the killer is a young, attractive women, just like Casey Anthony, that fact in itself is unusual and interesting, at least from the media’s perspective.

So does she have a defense to the charge? Of course she does.  For example, despite Nancy Grace’s typically silly opinion that this couldn’t be self defense because the crime scene was so bloody (see “Jodi Arias' Self Defense Claim Is 'Really Disturbing' Says Nancy Grace”).

These crime scene photos make me nauseous, and I have seen all sorts of crime in my time. They are some of the worst I have ever seen, and I can see from the photos that this was not self defense. This murder cannot be justified as self defense.

At the risk of stating the obvious, every single crime scene where a knife and gun were used will be sickening, whether or not it was justifiable or a crime. That is just the nature of violent deaths, and Nancy Grace’s amateurish opinion is nothing more than someone saying “I think she guilty because I don’t like her”.

And that is my biggest concern with this trial. The prosecutor’s in the Casey Anthony case seemed to believe that Casey Anthony was guilty of murdering her daughter because she was a party girl with unusual habits. With that in mind, I hope that as this trial unfolds, the prosecution will have more than just Jodi Arias was a party girl too.

There are a number of theories about why Adam Lanza killed 20 young children and 6 adults in Newtown, Connecticut ("As nation mourns, investigators try to figure out what led to tragedy in Newtown, Conn"): 

Federal investigators planned to visit dozens of shooting ranges and gun stores across Connecticut Sunday, attempting to figure out what led smart but painfully awkward 20-year-old Adam Lanza to murder 26 children and adults at Sandy Hook Elementary School in Newtown... 

Some people say lax gun laws are to blame; former Gov. Mike Huckabee said it was because we took God out of our public schools, while some others blame the lack of mental health treatment, and a "gun culture" promoted by violent movies, TV, and video games.  

My own feeling is that at least to some degree, many of the reasons listed above are to blame. As I wrote before in "The NRA gave him the gun and Hollywood gave him the reason: James Holmes and the Aurora Theater Shooting": 

Considering the destructive and dysfunctional message Hollywood pimps for a cheap buck, maybe it's time Congress imposed a sin tax on Hollywood movies to make up for the cost to the rest of society. There is no reason a sin tax should just apply to gambling, alcohol, and tobacco when Hollywood trash is just as dangerous.

As far as "God" not being in public schools, that answer is downright silly. The better answer is that the modern neoliberal state has destroyed any sense of community, which organized religion used to represent, and in its place, we are now only a collection of individuals. As Margaret Thatcher wrote, "there is no society anymore, only individuals". 

Mr. Neil Clark best made this point with his recent article "Get used to Cumbria-style killings in neoliberal UK: The egotistic culture of free market capitalism is to blame":

By encouraging us to be selfish and ultra-competitive, neo-liberalism destroys social cohesion. Other people are seen as threats and rivals, and not as potential comrades. In a neoliberal society it's much harder to make deep and lasting friendships and for families to stay together. Trust - that most essential element for building meaningful relationships - is eroded.

One of the odder things I have noticed is the convergence of Hollywood post-apocalyptic movies and Evangelical Armageddon theology. Two antagonistic groups, Evangelical Christians and Hollywood, have found common ground and are indulging in End of the World fantasy. And as a result, there are many Americans, Christians and non-believers alike, who are building an arsenal, not for basic self-defense, but for the End of the World. To them, there should be no limits whatsoever to the Second Amendment, not because they want to stop a burglar or mugger, but because they are waiting to fight the Antichrist or the next Civil War. 

Interestingly enough, the great conservative icon Ronald Reagan, supported gun control ("Ronald Reagan supported gun control, therefore your argument is INVALID")

As governor of California, Ronald Reagan signed the Mulford Act, which prohibited the carrying of firearms on your person, in your vehicle, and in any public place or on the street, and he also signed off on a 15-day waiting period for firearm purchases. After leaving the presidency, he supported the passage of the Brady bill...

His own words:

With the right to bear arms comes a great responsibility to use caution and common sense on handgun purchases. And it's just plain common sense that there be a waiting period to allow local law-enforcement officials to conduct background checks on those who wish to purchase handguns."

Also, see "Gun Control, Or Reloading Morality?" by Gareth Price: 

Reagan and Thatcher's neoliberal ideology inevitably entails the inculcation of a widespread amorality and misanthropy among the population. With Friday's events -- and the other half-a-dozen similar incidents this year alone -- it should be no surprise (though no less of a tragedy) when psychopathy comes home to roost.

You can listen to my podcast I did on this topic here "Newtown School Shooting: What can be done?". One point that I make in my radio show is that I think the modern decline of monogamy, and rise of both polygamy and serial monogamy, combined with easy access to weapons, is the single biggest cause, or proximate cause, of recent gun rampages (see "monogamy reduces crime"). 

While not strictly related to criminal law, because of the upcoming presidential election and all the talk on the economy, I think discussing bankruptcy law would be important and relevant right now. As I have written before, one cannot separate criminal law from politics and the economy. That is especially true when the economy has been this bad for this long. What I am most concerned about is that despite all the comments, suggestions, and ideas the various parties and candidates have tossed around regarding fixing the economy, I am surprised not a single major political candidate or either of the two parties have mentioned reforming the bankruptcy code. Maybe it's because both Republicans and Democrats are essentially nothing more than neoliberal trade organizations. 

I am referring to two sections of the bankruptcy code that have made it nearly impossible for average Americans to get out of overwhelming debt. And unless Americans have the opportunity to get out of debt for the long-term, they will never start buying and consuming. This is particularly important because it is the American consumer that drives the world market, and in fact, 70% of the American gross domestic product is based on consumer spending. In simple terms, that means until average middle-class Americans start spending and buying again, the economy will never improve.

The first section of the bankruptcy code I wish Congress would change is the fact that student loans debt is nondischargeable under all circumstances. Right now, Americans owe more money to student loan companies than they do in credit card debt and home mortgages (see "Benjamin Franklin was wrong: Student Loan Debt and Death are Certain"). But unfortunately, unlike credit card debt and home mortgage debts, a consumer has absolutely no possibility of discharging student loan debt, regardless of how bad that debt may be. For example somebody who spent $40,000 on culinary school and is only making $15 an hour is a bad predicament. Or even worse, I know plenty of lawyers who owe $250,000 or more in student loan debt and are unable to find work as attorneys.

Understandably, when somebody assumes a great deal of student loan debt they do so with the best of intentions. But for too many Americans the best of intentions have not come to fruition. And the best thing we could do now is allow, under certain circumstances, for consumers to discharge student loan debt. Of course, the end result would be interest rates on student loans would go up and fewer people would start taking those loans. But that might not be such a bad thing in the long run considering the great inflation of higher education costs in the past 20 years. It is no coincidence that higher education costs, a term I use very loosely here because it includes things like massage therapy school, culinary school, etc..., have skyrocketed in the past years while interest rates on student loans have approached zero. 

Second, I would like to see Congress reverse the horrible Noblemen decision of the United States Supreme Court. In that decision the United States Supreme Court said somebody could not cram down their primary residence in chapter 13 bankruptcy. A cram down means somebody reduces their mortgage on a home to the market value of the house. For example, let's say somebody has a house that is only worth $100,000 but they owe $200,000 on that house; if they could cram down they would reduce the mortgage debt to only $100,000 or market value. But the Supreme Court does not allow homeowners to do that on their own personal residence. They can do it on an investment property, but even then, they would have to pay the principal during the course of a Chapter 13 plan, which can last no longer than 60 months.

I would like to see Congress change the law so that a homeowner could cram down her home mortgage on their personal residence not only under Chapter 13 bankruptcy, but also in a Chapter 7 liquidation bankruptcy. And I would also like to see the original notes term remain in place. In other words, instead of being forced to pay off the principal in only five years or less, I would like to see a homeowner pay off the loan for its original term. 

I know that many people would claim such a change would reduce homeownership in America. But I don't think that's necessarily the case because Canada has a higher rate of homeownership than America even though their mortgage market and banks are much more tightly regulated than ours. And even if that was the case, as people in Western Europe and developed Asian countries can attest to, owning a house is a bit overrated. Too many people put their entire investment portfolio into one asset, their house, and that's not always such a good idea.

To make sure consumers don't abuse the system and that both the home mortgage and student loan credit system remain viable Congress could implement two simple safeguards. One is including a means test to be able to discharge student loan debt. In other words, we need to prevent high income earners like doctors and some lawyers from discharging student loans. That would mean if somebody makes too much money they could not discharge all of their student loan debt. The amount they could discharge would be based on a sliding income scale. Second, to make sure homeowners are not abusing the cram down provision of personal residences, the cram down would be granted only by a judge's order. That way, a cram down would only occur when a bankruptcy court judge thought it was a good idea. Those two simple safeguards would maximize consumer protection, while at the same time ensure the viability of the credit markets.

The basic point here is that until consumers have the confidence to spend money economy will never ever improve. And the simplest and most efficient way we could do that is with a simple tweak of the bankruptcy code.

Glendale Police and the Maricopa County Attorneys' Office have charged Jerice Hunter, the mother of missing baby Jhessye Shockley with murder. This is despite the fact police have not found Jhessye's body after searching a Tempe landfill for weeks.

As Crystal Cruz of KTVK 3 reports in "Investigative report reveals more about Jhessye Shockley case":

A woman told investigators she met Hunter at a shelter, and Hunter wanted to have an affair. The woman stayed a week with Jhessye and her mom at their apartment... The woman was also questioned about a suitcase she left at the apartment when she moved. The woman told investigators the suitcase was big enough to put Jhessye in... Glendale Police searched the Butterfield Landfill, south of Phoenix, unsuccessfully for Jhessye’s body.

If this is all the evidence that the Glendale Police department has against Ms. Hunter, then the case against her, to say the least, is pathetic. Even worse, the Maricopa County Attorney has even less evidence to charge Ms. Hunter with murder than Elizabeth Johnson, the mother of Baby Gabriel. Despite that fact however, the Maricopa County Attorney only charged Ms. Johnson with kidnapping, which resulted in a hung jury, and two less severe felonies. 

That, I believe, leads to the obvious question. In neither the Baby Gabriel or Jhessye Shockley case was a body found; so why did police police charge Ms. Hunter with murder but not Ms. Johnson, in particular when the evidence for murder against Ms. Johnson seems so much stronger than the evidence against Ms. Hunter? Remember that Ms. Johnson sent a text message to Logan McQuerry, baby Gabriel's father, that she killed Gabriel. In contrast, Ms. Hunter has never admitted in any form she murdered Jhessye.  

Could it be that Ms. Hunter is charged with murder simply because of her personality and demeanor? Is there is any real evidence proving she is guilty of murder beyond the trite evidence police have released so far? I hope the difference in charging is based on substance and not on a cynical calculation by the Glendale police department and Maricopa County Attorney. 

The US Navy SEAL TEAM SIX raid that killed Usama bin Laden in Pakistan is back in the news. One of the members of the SEALS who killed Bin Laden wrote a book about the assault, and news media released his name (see "SEAL book raises questions about bin Laden's death"). 

A firsthand account of the Navy SEAL raid that killed Osama bin Laden contradicts previous accounts by administration officials, raising questions as to whether the terror mastermind presented a clear threat when SEALs first fired upon him.

Bin Laden apparently was shot in the head when he looked out of his bedroom door into the top-floor hallway of his compound as SEALs rushed up a narrow stairwell in his direction, according to former Navy SEAL Matt Bissonnette, writing under the pseudonym Mark Owen in "No Easy Day."

There have been a number of books written about American special forces including Delta Force, Rogue Warrior, Inside Seal Team 6, and Kill Bin Laden. The difference about this book, however, is that Mr. Bissonnette did not get approval from the Department of Defense to write the book and he did not have them screen it beforehand. 

That, it seems, was a big mistake on Mr. Bissonnette's behalf. I would be curios to know if he spoke with a lawyer beforehand to determine if he could be prosecuted for what he wrote. Although if a lawyer did in fact tell Mr. Bissonnette he could do what he did, that would not absolve him from all criminal liability. In other words, just because a lawyer says you can do something, that does not mean you can do it an avoid prosecution.

For example, if a lawyer tells a person it is legal to drive drunk, that person will still be prosecuted for having done so. The lawyer may face a malpractice claim, but it will not be a defense to criminal prosecution.  

Jared Loughner plead guilty yesterday to murder for the Tucson shootings that killed federal judge John Roll, severely and permanently injured Gabriel Giffords, and killed three other people, including a young child (see "Jared Lee Loughner Pleads Guilty To Arizona Shooting" by Elliot Spagat and Bob Christie). 

Jared Lee Loughner agreed Tuesday to spend the rest of his life in prison, accepting that he went on a deadly shooting rampage at an Arizona political gathering and avoiding the prospect of a trial that might have brought him the death penalty.

From what I understand of the story, it seems that Mr. Loughner was the textbook example of a person who would not have committed this crime if either he had received mental health treatment or if he had not been able to have guns and ammunition. If either of those conditions had not been true, 5 more people would still be alive, Mrs. Giffords would still be in Congress, and Mr. Loughner would be living his life away in anonymity and out of custody. Instead, now, many lives have been needlessly wasted, including Mr. Loughner's. 

Now, sadly, we can add Mr. Loughner's name to the following list: James Holmes, Mark David Chapman, John Hinkley, Lee Harvey Oswald, Wade Michael Page, Nidal Hasan, Seung-Hui Cho, George Sodini, Eric Harris, Dylan Klebold, John Allen Muhammad, Lee Boyd Malvo, Sirhan Sirhan, James Earl Ray, Arthur Bremer, etc...

What is the common link of all these names? They all bought the guns and ammunition they used to kill law abiding Americans legally, and they were all law abiding right up until the point they killed their very first victim. 

Gun violence in the United States has made us seem, to the rest of the world, as backwards and primitive. While that may not matter to some Americans, and in fact, some may actually take pride in that point, it should matter. Everyday, 8 children die by gun violence in the United States. Every year, approximately 12,000 Americans are murdered by guns. That means every year, four times the total number of Americans KIA from the entire Iraq war are murdered by guns.

In Japan, a nation of 130 million, in 2008 fewer Japanese (total of 11) were murdered by guns that entire year than the 12 Americans who died in Aurora, Colorado last Friday morning watching the latest Batman movie (see "Aurora Theater Shooting" by Allison Sherry and Sarah Simmons of The Denver Post). 

And while some people self-righteously claim this is not the time to "politicize" the Aurora theater shootings, if gun advocates are sincere in their belief that more guns will save lives, then this is exactly the time to make that point. If gun advocates really believe that an armed citizen could have stopped James Holmes, then why wouldn't they make that point right now of all times? My suspicion is the reason they are not, and instead are relying on indignation, is that they don't even believe their own "more guns makes us safer" nonsense. When, in the entire history of the United States, has an armed citizen stopped a gun massacre? As far as I know, the next time it happens it will be the first time. 

The reason, I believe, not one gun rampage has ever been stopped by a armed citizen is because even if a member of the public was armed, his natural instinct would be to run away and not confront an aggressive, determined shooter, particularly one like Holmes in protective body armor. Plenty of gun owners think they are Audie Murphy when they are the range shooting at paper targets or in the field shooting at unarmed moose, but in the moment of battle, I doubt very many, if any, would react quite like they think they would. It takes more than a gun to make one a hero. It takes months of training every single day to have the necessary skill, and even more importantly, the discipline to do the job. That is why so much of military training is devoted to esprit de corp, drill, and seemingly unnecessary, but absolutely vital, ceremony and ritual. 

One other point I would like to make though is not about guns, but about Hollywood. From the news reports I have seen it seems Holmes was fascinated by Batman, and in particular, the villains. It is time, not only to ban private ownership of guns, just like Japan, but to examine the trash culture Hollywood pushes. It's time we examined Hollywood's money making machine glorification of anti-social, alpha male characters (I call it "alpha male-itis") like the Joker and Tony Montana.  The NRA may have provided Holmes the means, but Hollywood provided the motivation. 

There is a strong culture of aggression developing in America today which is pretty psychotic. You can see it when you accidentally bump into a stranger on the street, you can see it on the highway when someone explodes in road rage, you can see it in a bar when knife-fights break out over the smallest things, you can see it on the Internet when people start attacking each other in profanity-ridden tirades, you can see it on television shows that glorify mobsters and biker gangs, you can certainly see it in our political landscape, and you can even see it in 8-year-olds who exhibit large amounts of "attitude." Something is very wrong here.

("Why Gun Control Is Patriotic" by Sanjay Sanghoee). 

Considering the destructive and dysfunctional message Hollywood pimps for a cheap buck, maybe it's time Congress imposed a sin tax on Hollywood movies to make up for the cost to the rest of society. There is no reason a sin tax should just apply to gambling, alcohol, and tobacco when Hollywood trash is just as dangerous. 

The United States Supreme Court ruled that the provision of Arizona senate bill 1070 that orders police officers to check the immigration status of detainees for whom police officers have reasonable suspicion to believe is in the US illegally is constitutional. In other words, if an Arizona police officer has good reason to think you are in the country illegally after he pulls you over for speeding, he must check with ICE to see if you have the right to be in the US in the first place .  

What ICE will do is another story however. The Obama administration recently said that they will focus on deporting illegal aliens who are serious offenders, ie, felons. What that means is even if a police officer pulls someone over legally, for example, running a red light, and then finds out from ICE that the driver is an illegal alien, he will have to let him go because ICE will refuse to detain and deport that illegal alien. 

Should that be the case? Should ICE focus only on deporting illegal aliens who committ felonies, or should ICE deport any illegal alien who is falls on their radar? My own feeling is that ICE should deport all adult illegal alien. My family and I are legal immigrants, and I don't like the idea that someone can "jump ahead in line", that is, not follow the same rules we followed, and then claim it is unconstitutional to deport them.

Unfortunately, for whatever reason, the federal government does not believe the same thing and has been negligent in protecting our Southern border. That is why, I think, Arizona has every right to pass a law like SB 1070. While it may be the case, according to the current dogma of US constitutional law, that only the federal government has the right to conduct "foreign policy" and our nation's "immigration scheme", that shouldn't stop laws like SB 1070. 

For example, what if another nation, let's say China, decided to invade California and the federal government, again for whatever reason, decided not to resist the invasion? Because the President is the commander in chief and the defense of the nation is the federal government's responsibility, does that mean it would be unconstitutional for the governor of California to defend his state? Would he be violating the Supremacy Clause because he believed the President and the federal government was irresponsible? 

Of course, the scenario I pointed out is absurd, but maybe someday it won't be. And the broader point I am making is that the "constitution is not a suicide pact". We should not sacrifice our well being to the convulted particularities of American constitutional metaphysics. 

If you have an opinion on this case, then leave a comment here or call in my radio show Thursday June 21 at 12:30 PM Arizona time. See the following link for details "George Zimmerman vs. Trayvon Martin: Racism or justified?"

One of the common misconceptions of the people who believe George Zimmerman is guilty of a crime, whether it be manslaughter or second degree murder, is the claim that the 911 dispatcher ordered Mr. Zimmerman not to get out of his car and follow Trayvon Martin. This claim came up during my radio show when the caller claimed the 911 operator "ordered" George Zimmerman not to get out of the car and follow Trayvon Martin, and when he failed to comply with that order, that made Zimmerman guilty of manslaughter because Trayvon was trapped. This line of reasoning is wrong both legally and factually. 

First, the 911 operator never told or ordered Zimmerman not to get out of his car or not to follow Trayvon. According to the transcripts of the 911 call, Zimmerman was already out of the car when the operator asked him: 

Dispatcher: Are you following him?

Zimmerman: Yeah

Dispatcher: Ok, we don't need you to do that.

The important point here is that the Zimmerman was already out of the car, so it could not be the case the dispatcher told Zimmerman not to get out of the car. Second, the dispatcher never told Zimmerman in clear, unequivocal terms not to follow Trayvon. The dispatcher merely made it a preference "we don't need you to do that".

Why wouldn't the dispatcher have been more forceful and have ordered Zimmerman not to follow Trayvon? That's because of the simple reason the orders of a 911 dispatcher are meaningless and carry no more authority than any random civilian. 911 dispatchers are not police officers and what they order do not carry the force of law.

And now we come to the most important point: assume for the moment that the 911 dispatcher unambiguously and clearly ordered Zimmerman not to follow Trayvon and further assume that the order has the same legal weight as the order of a police officer. If that was the case, then Zimmerman definitely would have been at fault, right?

No, because guess what, Zimmerman followed the dispatcher's suggestion. 

Dispatcher: Ok, we don't need you to do that.

Zimmerman: Ok.

In other words, after the dispatcher's suggestion, Zimmerman complied and he stayed put. Zimmerman stayed on the line with the dispatcher to arrange meeting the police officers that were due to arrive shortly.

One point that I have not heard anyone mention yet where was Zimmerman's car in relation to the shooting location. If in fact the car was near the shooting location, then that would be convincing evidence that what Zimmerman said is true, namely that after he hung up with the 911 dispatcher, Trayvon came up him and attacked him. But if it turns out the car was far away from the shooting location, that would support the claim Zimmerman followed Trayvon.  

The signifigance of whether Zimmerman followed Trayvon is that most people who claim Zimmerman is guilty of manslaughter somehow believe Zimmerman provoked Trayvon's attack on Zimmerman and thus, Zimmerman lost the right to use deadly force. But that's not the case. Imagine if the shoe was on the other foot, and imagine if the police officers had shown up right when the witnesses claim Trayvon was on top of Zimmerman hitting him multiple times "MMA style". Could at that point Trayvon have successfully claimed he was hitting Zimmerman out of self-defense, ie, not guilty of aggravated assault because he was merely defending himself from Zimmerman?

From everything I have seen so far in the police reports, no. Trayvon did not have the right to beat the hell out of Zimmerman, and there is no evidence that Trayvon had no other choice but to pummel Zimmerman into submission to save himself. And if Trayvon could not have successfully argued self-defense when he was pounding Zimmerman, then Zimmerman did not lose his right to use force to defend himself against Trayvon. 

Last, while I adamantly believe Zimmerman is innocent of both manslaughter and second degree murder, one thing troubles me about his testimony at the bail hearing. At that hearing, Zimmerman said he did not realize how young Trayvon was and he said the thought Trayvon was only a little bit younger than he was. Zimmerman is 28 and his point was that he thought he was confronted by a grown man, not a minor. 

But on the 911 call Zimmerman says Trayvon looks like a teenager: 

Dispatcher: How old would you say he looks?

Zimmerman: He's got button on his shirt, late teens.

Obviously, Zimmerman said one thing on the 911 call and something completely different at the bail hearing, and the distinction between his belief he was confronted by a minor versus a grown man is a significant one. The prosecutor should have hammered Zimmerman on this point, but instead, the prosecutor delved into nonsense and lame arguments (see "Free George Zimmerman: Prosecutors Angela Corey and Bernardo de la Rionda Step into Disgrace"). 

A Florida judge has revoked the release of George Zimmerman, the man Florida prosecutors have accused of murdering Trayvon Martin. The reason the judge revoked Mr. Zimmerman's release is because ("Zimmerman back in jail, attorney seeks new hearing" by Jennifer Kay): 

Prosecutors said last week that Zimmerman and his wife told the judge at a bond hearing in April that they had limited money, even though he had raised about $135,000 through a website set up for his legal defense. They suggested more has been collected since and deposited in a bank account. Defense attorneys say the matter is a misunderstanding.

According to news reports, the judge, Circuit Court Judge Kenneth Lester, revoked Mr. Zimmerman's release because he lied at his release hearing and did not inform the court about the website that he and his wife were running to raise money for Mr. Zimmerman's defense. That putative omission was very significant in the eyes of the court and prosecutors because it led the court to believe that the original bond amount was sufficient to hold Mr. Zimmerman to his promise to appear.

In other words, the issue the court had with Mr. Zimmerman is not just that he failed to tell the court about his website, a mere white lie, but he misled the court about his financial resources. A man who has plenty of money easily raised is more a flight risk than a man who puts his life savings on the line. While I do not think Mr. Zimmerman should be facing prosecution at all, I do believe the judge made the right decision in revoking Mr. Zimmerman's release (see "Free George Zimmerman: Prosecutors Angela Corey and Bernardo de la Rionda Step into Disgrace").

A jury may very well find Mr. Zimmerman not guilty, which is exactly what I hope will happen. Having said that though, until that happens, Judge Lester must enforce the rules of the court impartially. I know some people think that Mr. Zimmerman is under no circumstances a flight risk and that revocation of his release is excessive. To that point I will say that even if Mr. Zimmerman is not a flight risk, the public must know that if you lie to a judge, or at least don't tell him everything he should know, you will not get away with it. That means the next person who walks into a Florida court can't think to himself "Mr. Zimmerman didn't tell the judge about his website and was still released, so maybe I won't tell my judge about my secret bank account either..." 

The police reports in the case are available here at Zimmerman/Trayvon Martin police reports. A review from the police reports reveal the following information: 

1) When police officers played the 911 calls to Mr. Martin's dad, Mr. Martin's dad said the calls for help were not from his son. 

2) Mr. Zimmerman, as can be heard on the 911 calls, yelled for help 14 times in 38 seconds. 

3) According to police reports, several witnesses corroborated Mr. Zimmerman's statements with written and recorded statements to police.

4) On one 911 call Mr. Zimmerman is "frantacally calling for help" at exactly 19:16, while the gunshot was at 19:17.

5) One witnesses claims he saw Mr. Martin "mounted" on top of Mr. Zimmerman and hitting him with "MMA style" punches. 

6) Mr. Zimmerman's nose was broken, face swollen, scalp wounded, while Mr. Martin did not have any injuries other than the gun shot. 

7) Mr. Zimmerman's back was wet, which indicates he was on his back because the grass field they were found on was wet. 

It seems the government's reason for prosecuting Mr. Zimmerman is that they claim Mr. Zimmerman should never have gotten out of the car or he could have avoided the confrontation:

The encounter between George Zimmerman and Trayvon Martin was ultimately avoidable by Zimmerman. If Zimmerman had remained in his vehicle and awaited the arrival of law enforcement, or conversely if he had identified himself to Martin as a concerned citizen and initialed dialog in an effort to dispel each party's concern.

I find that claim puzzling as not a single witness says he or she saw or heard what happened before the actual physical confrontation, and if this is the prosecutor's rational, it is nothing more than speculation and guesswork. 

How can prosecutors prove Mr. Zimmerman could have avoided the confrontation? How can they prove when or why he out the car or that he should not have? And even if they can prove those things, how that does add up to second degree murder? 

It doesn't. As I have written before, Mr. Zimmerman is not necessarily a good or smart man, but there is absolutely no proof whatsoever that he is guilty of murder. 

If you have an opinion on this case, then leave a comment here or call in Thursday June 14 at 12:30 PM Arizona time. See the following link for details "George Zimmerman vs. Trayvon Martin: Racism or justified?"

To listen to part one, see the audio player below. 

What will happen to Tammie Smith, the women who wanted to adopt Baby Gabriel from Elizabeth Johnson and Logan McQuery? Did she commit fraud? Did she have anything with Baby Gabriel's disappearance? Watch this interview to see what I think of the Tammie Smith trial.

Something still stinks in Scottsdale. But now it is now the stench of death and corruption faintly perfumed over by Scottsdale Police media apologists. In the never ending media rush to defend Scottsdale Police department's unlawful killing of Sgt. Prostrollo, the media conglomerate of Arizona Republic and KPNX has proclaimed yet another defense of Scottsdale Police. First there was Ofelia Madrid's abysmal "reporting", then there were tedious and worthless commentaries by EJ Montini and Laurie Roberts. Now there is the story above by Chris Hrapsky.

Mr. Hrapsky never asked Sgt. Mark Clark why did Scottsdale Police issue a press release that claimed it was too windy to use a taser or pepper spray when not a single officer on the scene said that was the case. Mr. Hrapsky, if you read this post, then I suggest you reread the police reports. Not one officer claimed it was too windy for non-lethal force. Mr. Hrapsky never asked why did Det. Lockerby of Scottsdale Police internal affairs spoon feed the answer "too windy" to the officers the day after the shooting. He never asked why did Scottsdale Police show more concern for their canine than Sgt. Prostrollo. Mr. Hrapsky never bothered to go the national weather service website, which would have taken all of two minutes, to find out the night of the shooting wind was average, and confront Sgt. Clark with that fact.

I am so dissappointed with the KPNX story for the following reason: if local media had been more interested in actual investigation of the Prostrollo shooting, maybe then John Loxas would still be alive. 

Of course, there is also Sgt. Clark's "cookie cutter" defense and his informal, casual, and quarter-hearted condolence to Mr. Prostrollo "we get it".  

Officers are trained to confront the situation that's presented to them. So to say that there is one cookie cutter approach for a specific situation, you can't do that... We understand that Mr. Prostrollo is upset... we get that... 

How on Earth Sgt. Clark is still the public information officer for Scottsale Police is beyond me, but it speaks volumes about the Scottsdale Police administration that he still has that job. If, Sgt. Clark, Scottsdale Police "get it", why did SPD lie about the wind? Why did the Scottsdale Fraternal Order of Police slander Sgt. Prostrollo and humiliate his friends? Why did Scottsdale police show more concern for a dog than Sgt. Prostrollo? 

I can almost imagine the following conversation taking place at Scottsdale Police Headquarters: 

Chief Rodbell: dude, guess what? Rambo's old man is totally bummed, and guess what bro?  

Sgt. Clark: No way, bro, what? 

Rodbell: the old man is suing us for freakin' killing his kid! Totally a bummer cuz our dog almost bit it.

Sgt. Clark: no way!! someone, should like, you know, tell him 'hey dude, chill bro', we like totally 'get it'. Ya know, it was like, totally too windy and gnarly. Ya know, what we do ain't cookie cutter. 

For some background information on this topic, see my posts on Scottsdale Police, Sgt. Jason Prostrollo, and John Loxas. 

UPDATE: For some very good news, the Prostrollo family filed a notice of claim against the City of Scottsdale seeking $5,000,000. You can see the notice here at NOTICE OF CLAIM.pdf The family hired Robbins and Curtain for the lawsuit, which is excellent news as I know that both Mr. Robbins and Mr. Curtain are excellent attorneys. 

While personal injury attorneys get a lot of grief for a variety of reasons, this is a perfect example of an attorney suing in the pursuit of justice. I hope and pray that Mr. Curtain and Mr. Robbins succeed in their pursuit of justice, that the Prostrollo family gets some relief, and the Scottsdale Police Department learns the error of their ways.  Maybe, after all is said and done, Scottsdale police will finally learn they can't kill unarmed civilians and lie their way out of trouble.

Finally, I was reading through the police reports of this case, and I saw Det. Lockerby's report. This is signficant because he was the internal affairs officer in charge of the investigation:

Offender threatened to commit Aggravated Assault with pool cue sticks against listed Scottsdale PoliceOfficers while at 12074 North 135th Place in Scottsdale, Maricopa County, Arizona. Listed Offender was shot and killed by Lt. Ron Bayne #559 while committing the Aggravated Assault.  

So, I ask again, if this is the official Internal Affairs summary of what happened and why Lt. Bayne killed Sgt. Prostrollo, what wind?

Bernardo de la Rionda's Nancy Grace-ish cross examination of George Zimmerman is maybe the most despicable part of this entire tragedy. Yes, even worse the the doctored 911 call because Mr. de la Rionda, like every prosecutor is supposed to be, is supposed to be a "minister of justice" speaking for the The People. 

Zimmerman: I wanted to say I am sorry for the loss of your son. I did not know how old he was. I thought he was a little bit younger than I am. And I did not know if he was armed or not.

After that statement, the prosecutor begins his terrible cross examination with the silly, tedious point about how Mr. Zimmerman didn't make the comment to the judge, but to Trayvon Martin's parents who were sitting in the courtroom. I suppose the prosecutor was trying to make the point Mr. Zimmerman's statement was not sincere but only an act for the media.

Watch the video above and tell me who was acting the for the cameras, Mr. Zimmerman or the seemingly mad, blood-thirsty prosecutor, Bernardo de la Rionda. As a side note, if Mr. Zimmerman was acting, he is the best actor I have ever seen. I seriously doubt he is a emotionless, pathological psychopath as no psychopath would tell police he felt bad for the victim's parents, nor would one say as much in open court against the well-placed advice of his lawyers. 

Prosecutor: Sorry sir, you are not really addressing that to the court. You're doing it here to the victim's family. Is that correct?   

Zimmerman: They are here in the court, yes.

Prosecutor: I understand, but I thought you were going to address Your Honor Judge Lester, but not... that's really addressed to the family and where the media happens to be. Isn't that correct Mr. Zimmerman? 

Zimmerman: No, to the mother and the father. 

Then the prosecutor accuses Mr. Zimmerman of having only apologized at the bail hearing- implied in the prosecutor's accusation is that he only did it now to get out jail- but not the police at the scene. 

Prosecutor: Tell me after you committed this crime, you spoke to the police and did you make that statement to the police sir? You never stated that?

Zimmerman: I don't remember what I said, but I believe I did. 

After that exchange, there is a tedious line of cross examination regarding when and to whom Mr. Zimmerman made that statement. Needless to say, Mr. Zimmerman does not remember the specific details, but I don't think anyone doubts he made a statement along to the lines of "I felt sorry for the family" to the police, and he hoped the police would tell the family of his sorrow.

Then Bernardo de la Rionda really steps in it and makes his biggest mistake. It's sad that a prosecutor forgets that the victim's bill of rights forbids criminal defendants from contacting the family of victims, and even if it did not, Mr. Zimmerman's lawyers would have told him to keep his mouth shut.  

Prosecutor: Why did you wait so long [the 54 days from the day of the shooting until his testimony] to tell Mr. Martin and the victim's mother, the father and mother, why did you wait so long, to tell them?

Zimmerman: I was told not to communicate with them.

It is without a doubt a horrible tragedy that a 17 year old boy is dead, and that his family has to grieve his loss. The only thing worse than that sad fact is that the media crucified an innocent man, George Zimmerman, to sell more papers, that a NBC producer doctored the 911 call to make it seem Mr. Zimmerman was a racist, that glory seeking prosecutors like Bernardo de la Rionda are embarrassing themselves and the American legal system to gain fame, and that putative community activists like Al Sharpton are mocking the entire notion of social justice and civic responsible. As bad as all that is, I can only hope that is the extent of it, and that latent anti-Semitism played no part in the rush to convict Mr. Zimmerman. 

My point is not that Mr. Zimmerman is a good person, just that there is absolutely no evidence whatsoever he is guilty of second degree murder. He should not be going through this indignity. I hope he is free soon, and when he is free, I hope he sues the state of Florida for malicious prosecution and sues everyone and anyone who falsely accused him for slander, libel, and defamation.

If you would like to share your opinion regarding this case, then call in to my internet radio program this Thursday June 7 at 12:30 Arizona time or you can leave a comment on this post or tweet me @vlga. See this link for more information: "George Zimmerman" Thu, June 7, 2012 12:30PM Call in to speak with the host (718) 305-6376.

Mark O'Mara, Mr. Zimmerman's defense lawyer is on twitter @Markomaralaw. I sent him a tweet as I am concerned, not as a criminal defense lawyer, but a free, proud, American citizen that Florida prosecutors are persecuting, that's right persecuting, Mr. Zimmerman because of the contrived, vile media campaign against him. I am worried that his client will plead guilty to a lessor charge to avoid facing trial on the second degree murder charge.  

It may be the right thing to do legally, but if so, that is a very sad commentary on our democracy, legal system, and the Bill of Rights, allegedly the finest in the world. If you agree, tweet him your own message or retweet mine: 

.@Markomaralaw Plz don't plead guilty just to avoid trial. This case is bigger than just Zimmerman/Martin. It is about our democracy.

Also see the video below of Harvard Law Professor Alan Dershowitz as he accuses Angela Corey of unethically overcharging Mr. Zimmerman. 

The Arizona House of Representatives is considering a law that would force recipients of welfare benefits, including unemployment benefits, to undergo random drug tests ("Drug test for unemployed advances in Arizona House" by Mary Jo Pitzl): 

If you're out of work, Arizona lawmakers want to make you take a drug test before you get an unemployment check. And the unemployed worker would have to pay for it.

Arizona state Sen. Steve Smith, R-Maricopa, said he wrote Senate Bill 1495 to ensure people who get unemployment benefits are deserving. He doesn't consider anyone who uses drugs fit for assistance.

"If you are so fortunate to live in a nation to get an unemployment check ... when you're down on your luck, the very least you should be able to do is prove you're of sound mind and body to earn -- earn -- that benefit," Smith told members of the House Appropriations Committee on Thursday.

Fair enough, Rep.Smith doesn't want to spend taxpayer money for people who are abusing drugs. My only question, why not include the biggest welfare recipients of all time? Why not force Wall Street banks that received billions of dollars in taxpayer dollars in 2008 under the same microscope? 

One of the many criticisms of the Occupy Wall Street movement is that they are nothing more than pot-smoking malcontents seeking free benefits. If that is true, is that any different from many of the investors working for Wall Street banks? For example, from "Drugs and Today’s Wall Street": 

[I]n the latest issue of Investment Dealer’s Digest, Tom Granahan reports that abuse of cocaine, prescription drugs and alcohol remains widespread on the Street... many seemed to agree that the fast pace, lucrative salaries and the nightly ritual of courting clients can lead to substance abuse among the financial services ranks.

And see the following from "Drug Abuse Trends among Wall Street Investors" by Bethany Winkel: 

While cocaine used to be high on the list of Wall Street users, it has dropped in popularity. Found in 16% of positive tests in 2007, in 2008 it was only found in 7% of positive tests. The drug of choice now, by far, is marijuana, coming in at 80% of positive tests. Amphetamines are also growing in popularity, up to 10% in 2008 from 3% a few years ago.

Most importantly, while the reported drug use by Wall Street employees is low: 

It simply means they are getting caught less often. Random drug tests are not as common on Wall Street as they are in many factory settings, for example. And given the power and money that Wall Street investors hold, some employers simply deny that their workers have a problem.

When one considers that Wall Street is the biggest casino in the world, is it so hard to believe that maybe many of the terrible gambles Wall Street banks made the in past 10 years were under the influence of illegal drugs? If driving with marijuana is illegal, shouldn't gambling with billions of taxpayers dollars be too? The amount of money taxpayers have given to unemployed Americans is nothing in comparison the money taxpayers gave Wall Street banks, so shouldn't Wall Street be under the same amount of scrutiny? Which is the bigger threat to our nation, unemployed Americans or Wall Street bankers snorting crack? 

Of course, Arizona does not have jurisdiction over Wall Street, but many of the Wall Street banks that received the TARP bailout have branches and employees here in Arizona. If what's good for the goose is good for the gander, then a law requiring Arizona employees who work for those banks and receive performance based bonuses should be under the same microscope Rep.Smith has proposed. 

If you agree with me, then you can retweet what I sent to the Arizona House GOP: 

U want to drug test unemployed Arizonans? But what about Wall Street Banks? Don't the same rules apply http://www.azcriminallawsexcrimes.com/social-justice-politics/welfare-recipients-should-be-drug-tested-so-that-includes-wall-street-banks-right/ @AZHouseGOP

"When you look into an abyss, the abyss also looks into you."-Nietzsche 

"A gem cannot be polished without friction, nor a man perfected without trials."- Seneca

We live in a bizzaro nation: The Thought Police watch us, Big Brother tracks our every move, and if we believe the wrong thing, the Political Correctness Police will put us in prison. But the Wall Street criminals who have impoverished us all walk among us unscathed.

No, this is not 1984, Stalin's USSR, or even the dogmatic right wing of the Republican Party. This is the modern day neoliberal state, and identity politics has criminalized what we think ("Student guilty of hate crimes for spying on gay roommate"): 

A former Rutgers University student who used a computer webcam to spy on a sexual tryst of his roommate, who later committed suicide, was found guilty of hate crimes on Friday in a case that put a national spotlight on gay bullying.

Dharun Ravi, 20, faces 10 years in prison on the most serious charge of bias intimidation against Tyler Clementi, 18, who committed suicide by jumping off the George Washington Bridge three days after learning his gay encounter was seen by webcam.

Predictably, for advocates of identity politics, or better yet, vanity politics, this is a signal moment to triumphantly proclaim the verdict as a victory for justice ("Even Nonviolent Crime Needs to Be Fought" by Hayley Gorenberg): 

With regard to the Ravi trial, our legal system recognizes that not all crimes draw blood. It’s possible to strike deep at one’s core without a bullet or a knife blade. Whether or not the proof is mustered to a New Jersey jury’s satisfaction, justice is served by a system that has properly acknowledged that if hate is a legal factor, it should be recognized in all of its most virulent forms, including those leveled at lesbian, gay, bisexual and transgender people for who they are.

The fact that Mr.Clementi is dead is a tragedy, but only one person is responsible for that fact: Mr.Clementi. He is the one who decided to commit suicide, and only he should receive any blame for that fact. I know that gay men and women bear a difficult burden and have much higher rates of suicide. My point is not to minimize that struggle or that Mr. Ravi is a good person, but to send Mr. Ravi to prison is no different from the KGB sending a political malcontent to the Gulag. That Mr. Ravi may go to prison is vile, and it is an example of how far our nation has degenerated.

No one should ever go to prison for what he believes. No one should be punished for anything other than for what he has done. But no longer are the ups and downs of life to be tolerated and overcome. No longer do we endure hazing as a right of passage. Instead, we are all victims and if our feelings are hurt, someone must pay. I blame Oprah, Nancy Grace, and media's promotion of the cult of the victim, self-pity ideology. I blame modern culture that insulates and shelters children without the slightest attention paid to self-reliance and overcoming.

But most of all I blame the modern, neoliberal establishment that equates vanity politics with social justice. But social justice and vanity politics are not, however, as Professor David Harvey has repeatedly made clear, necessarily compatible ("A Brief History of Neoliberalism"): 

Neoliberal rhetoric, with its foundational emphasis upon individual freedoms, has the power to split off libertarianism, identity politics, multiculturalism, and eventually narcissistic consumerism from the social forces ranged in pursuit of social justice through the conquest of state power.

It has long proved extremely difficult within the US left, for example, to forge the collective discipline required for political action to achieve social justice without offending the desire of political actors for individual freedom and for full recognition and expression of particular identities.

For anyone who wonders how the so-called 1% maintain control over the rest of us, the so-called 99%, this is exactly how they do do it: divide and conquer by way of vanity politics. Instead of a nation that is united in its pursuit of social justice, every single particular group, whether it be defined by sex, religion, race, orientation, etc... looks out for itself. No longer are working class Americans, as was the case during the New Deal, the War on Poverty, the Great Society, of all races, sexes, religions, identities united to provide our nation with the highest standard of living attainable for all its people. Instead, we are all just looking out for number 1.  

But that hasn't always been the case. The great economist John Maynard Keynes, the architect of the post-War World Two middle class democracies, was essentially a Christian Democrat, even though he was gay and an atheist: "Western civilization of which the institutional foundations are... the Christian Ethic, the Scientific Spirit and the Rule of Law. It is only on these foundations that the personal life can be lived." ("Hayek versus Keynes: The Road to Reconciliation" by Robert Skidelsky)

While the Ravi/Clementi masquerade of justice was on-going, a former Goldman Sachs executive Greg Smith exposed the Wall Street hog for what it truly is (see "Why Greg Smith Is 'Dead Right' About Goldman Sachs"). But this is our nation now, Mr. Ravi goes to prison for being a jerk, but the Wall Street hog goes unpunished. I wonder how many Americans committed suicide after they lost their jobs and livelihood as a result of the Wall Street meltdown, but yet, not a single Wall Street criminal is in prison. 

And while I am no fan of New Jersey Governor Chris Christie, I hope he does the right thing and either pardons Mr. Ravi or commutes his sentence to no prison time. If you agree, you can tell Gov. Christie that by tweeting him at @GovChristie. Below is the tweet I sent him. You can send your own or retweet mine. 

Please do the right thing and pardon Dharun Ravi. America is not the USSR @GovChristie http://www.azcriminallawsexcrimes.com/social-justice-politics/dharun-ravi-convicted-for-hazing-tyler-clementi-a-masquerade-of-justice/

UPDATE: There is a interesting story in how racism is on the rise in Europe as a result of the economic problems ("European Network Against Racism (ENAR) said in its annual report that economic crisis incites racial discrimination)": 

The most common victims of racism are African nations. General public believes that migrants and ethnic minorities have caused the high unemployment and poor working conditions at the time of the economic crisis, ENAR activists explained...

In Great Britain, for instance, black people are at least six times more likely to be stopped and searched than a white person, ENAR stressed in the report.

I cite this report to make the obvious point that civil rights can only advance when the common class isn't worried about basic surival. It is no coincidence that the civil rights movement started in the 1950s, 1960s, and 1970s, in the heyday of the post-War World Two Keynensian economic miracle. The fact that it did not happen before then, as in during the Great Depression or the Gilded Age, is not because Americans were less charitable or there were fewer civil rights champions around, but because the common class was impoverished and in no mood to care about racism.  

We should remember that lesson now: let's fix the economy, get average American of every identity a decent job and life, and mabye then, if ever, focus on identity politics. 

Staci Lynn Barbosa and Jonathan Edward Vandergriff are accused of raping and murdering their one month old son in 2010. While the Mohave County Attorney's Office planned on seeking the death penalty against Mr. Vandergriff, they have now backed off that tactic.

As James King of the Phoenix New Times writes ("No Death Penalty For Bullhead City Couple Accused of Killing Newborn During "Brutal" Sexual Attack"): 

In the morning of June 15, 2010, police were called to Western Arizona Regional Medical Center's Emergency Room where the one-month-old baby was "fighting for his life." 

Police say they saw bruises and sores all over the baby's body and his eyes were red and swollen shut. Doctors then told police the baby had several broken ribs, a broken femur, was malnourished, dehydrated, and showed signs of sexual abuse and shaken baby syndrome.

At the time of the baby's death, Bullhead City Police Department spokeswoman Emily Montague told New Times it appeared the couple "raped" their own baby.

The story does not explicitly state why prosecutors are no longer seeking the death penalty against Mr. Vandergriff or why they never sought the death penalty against Ms. Barbosa in the first place. 

Tyson Langley just came to Phoenix after being accused of a horrific double murder at a Phoenix smoke shop. What punishment should he face? Should he get the death penalty? Should he be tried as an adult? Should he get life in prison? These are all questions I asked, and answered some, with regard to another juvenile murder case just recently ("Braden Matthew Rockriver, 16 years old, to be Charged as Adult in Denna Strebe Case"). 

Langley allegedly killed Kenneth Matlock and Melinda Bowen and then shot Robert Troutman, who had a non-life-threatening hip wound.

For more information, see my interview above or read what I told ABC 15 and Angie Holdsworth ("Teen suspect in Peoria shooting back in the Valley"): 

Legal expert Vladimir Gagic, who is a defense attorney, said by statute the prosecutor has no choice but to charge the teen as an adult in this case.

"Anyone who is 15-years old who is involved in a violent crime is automatically charged as an adult," he said. "Being that he is 15-years old he has a better chance than say a 35-year-old of getting out. But based on what I've read and considering the heinous nature of the crime, it wouldn't surprise me if he spent the rest of his life in prison."

Langley invoked his right to remain silent. "It makes his case better that there is no confession," said Gagic "It is quite astonishing that someone 15-years old has the presence of mind to invoke his right to counsel."

See my interview with Tim Vetscher of ABC 15 regarding Jhessye Shockley, mother of Jerice Hunter, was released from custody. The police released the search warrant they used to search her home. What did they expect to find? 

Should the government punish parents who give their underage children alcohol? We give parents quite a bit of discretion on how they raise their children: parents pick their children's religion, what kind of medical treatment they get, where they go to school, where they live, etc... so why shouldn't parents be allowed to give their child a drink if they want to? 

The Tempe ordinance is nothing more than puritanism in the guise of public welfare. This ordinance is not about excessively loud partying or unruly youngsters; disorderly conduct laws already manage that issue. This is not about parents getting their children drunk. Child abuse laws control that. This is about parents not being able to give their children a sip from a can of beer. This law is temperance, pure and simple. 

In Meyer vs. Nebraska, the United States Supreme Court held that the state can unreasonably interfere with how parents raise their children. While no Tempe City Court judge will hold this new ordinance unconstitutional, one day one judge will.  

On a personal note, the only thing I remember of my grandmother is when I was 8 years old she gave me a sip of beer. It it one of my fondest memories of my childhood because I felt like my grandmother was treating me as an adult.  While that was in Europe about 30 years ago, I am sure something similar happens every day here. But because of puritanical laws like the new Tempe ordinance, many children will never have the chance for the memory of their grandmother that I have of mine now. 

Mark Goudeau, the man convicted of the Phoenix Baseline Shootings, talked to the jury directly during the penalty phase. The jury decides whether Mr. Goudeau should receive the death penalty. Was his testimony helpful? Should he have said something different? Did he manage to save his life? Watch the video to hear what I think. 

Overnight Joe Paterno has turned into Richard Nixon. Is that justified? Should Joe Paterno have done more than simply have reported the allegation of child molestation to his athletic director?  ("Scandal Ends Paterno's 46-Year Penn State Tenure"): 

Upon hearing of the incident from an eyewitness, a Penn State graduate assistant, Mr. Paterno reported it to school officials but not to police, according to state prosecutors. Although Mr. Paterno has not been charged in the case, Pennsylvania state police Commissioner Frank Noonan has suggested there was a "moral responsibility" to contact police about potential sexual abuse involving children.

I listen to a lot of sports talk radio and I watch ESPN all the time, and there is no shortage of critics who say Mr. Paterno should have done more, like having called the police or followed through with the athletic director on the accusation. I have even heard some people say Mike McQueary, the graduate assistant, is just as evil as Mr. Sandusky for not having directly intervened when he saw the abuse. 

A couple of points: anyone who thinks Mr. McQueary is evil is awfully self-satisfied and has a very high opinion of his own ability to act under duress. While Mr. McQueary is certianly no hero, the fact that he didn't turn into Superman doesn't mean he is anywhere as bad as Mr. Sandusky. People who are not trained to respond to these sorts of situations often fold under pressure; it just means they are human. That is why the military and police spend so much time and money in screening and training recruits to handle traumatic circumstances.  Even then, it doesn't always work. For example, see S.L.A. Marshall book "Men Against Fire", which makes the point that even well trained soldiers hesitated when first thrust into combat. Or consider the ample anecdotal evidence of citizens who refuse to help a rape victim on the street. 

With regard to Mr. Paterno, from what I understand of the story, he had known former assistant Jerry Sandusky for thirty years when Mike McQueary told him about the incident in the shower between Mr. Sandusky and a ten year old boy. And what Mr. McQueary told Mr. Paterno may have not been all that specific or detailed. I have not seen any proof or read any story that Mr. Paterno was privy to all the other evidence that Mr. Sandusky was a child molester, including the reports to Penn State University Police in 1998. Thus, the only evidence Mr. Paterno had of Mr. Sandusky's behavior was what Mr. McQueary told him. 

And while I have not read the grand jury transcripts, I have heard that Mr. McQueary testified he told Mr. Paterno all the details and specifics of what he saw. I do not believe that for a second. I believe Mr. McQueary was so shocked by what he saw, that he rationalized Mr. Sandusky's behavior and convinced himself he did not see what he thinks he saw. That is why he did not call the police right away. And when he told Mr. Paterno about it, what he told Mr. Paterno was vague and non-specific. But nine years after the fact while testifying at the grand jury, Mr. McQueary tells the grand jury he was specific about the allegations so he can protect himself by throwing Mr. Paterno under the bus.  

What that all means is that when Mr. McQueary told Mr. Paterno about what he saw, the only thing Mr. Paterno knew is what Mr. McQueary told him. After that, Mr. Paterno told his athletic director. Was it so unreasonable for Mr. Paterno to assume that if in fact the allegations were true, the athletic director would have investigated it and then have told police? Was it so unreasonable to assume that before making the most serious accusation possible against a friend he has know and worked with for 30 years, that there should be more proof than just the word of a coaching assistant? Was it so wrong for Mr. Paterno to think to himself if Mr. McQueary really saw what he says he saw, why didn't he call the police instead of just telling me the next day?

If in fact Mr. Sandusky was a pedophile, why hadn't Mr. Sandusky's wife of over 30 years had said a single word to anyone about it? After all, she would have been in the best position of anyone to have known about and reported Mr. Sandusky's behavior. Why isn't the media, that is ESPN, criticising her with the same zeal they are criticizing Mr. Paterno? She almost certainly knew what he was about and was in the best position to stop him, but she did nothing. 

My point is a simple one: I have heard far too many people say the most complimentary things about Mr. Paterno. Many Penn State football players, from all walks of life, have stated how much Mr. Paterno has changed their lives for the better. Isn't that enough to give him the benefit of the doubt? While it may be the case Mr. Paterno knowingly protected a pedophile, shouldn't there more evidence of that fact before ruining his reputation? But if he was not complicit and if he made the mistake of thinking his friend was not a monster absent more than just the vague, uncorroborated accusation of a young assistant, then his mistake was the very human one of being too trusting. 

P.S. Penn State fired Joe Paterno without even the courtesy of calling him direclty or talking to him in person. While I believe Penn State had no choice because they needed "to stop the bleeding", they could have done it in a more dignified manner. I also found a very good article called "Paterno is not at fault" by Sally Jenkins: 

Forgive Joe Paterno: When he looked at Jerry Sandusky, he didn’t see a dirty old man in a raincoat. He saw a friend, a close colleague, and a churchy do-gooder. He saw a nice guy. You’d have seen the same thing. Think not? You think you can see a clear-cut difference between an alleged child molester and a youth coach? How exactly? By the hunchback and the M-shaped scar on his forehead that says, “I’m a molester”?

Think Mark Goudeau was guilty of all the shootings in the Baseline Shooting cases? Then why, at least according Mr. Goudeau's defense attorney was ( see "Goudeau defense: Evidence lacking in 'Baseline Killer' case" by Michael Kiefer) there: 

- No evidence that he owned a gun or ammunition. No gun was even found. 

- No evidence that his car was seen in front of a victim's house before her death. 

- No footprints, no fingerprints, no body hairs.

 Further: 

He [the defense attorney] challenged the in-court identifications of Goudeau by victims and witnesses. He reminded the jury that the victims had given widely varied descriptions of their attacker, sizing him at 5 feet 4 inches to 6 feet 4 inches and everything in between.

The police claim they found evidence from the some of the victims at Mr. Goudeau's home, but that was only found after the third search of the house. The first two came up empty. I hope this is not a case where Mr. Goudeau was convicted simply because he has a violent criminal history, because of media coverage, and because of the fact many different allegations and events- in other words, boot strapping- were tried together. 

Andrew Thomas, the man who would be king, or at least Arizona's Attorney General, will testify today at the Arizona State Bar hearing that will determine his professional fate:

A former prosecutor who teamed up with Maricopa County Sheriff Joe Arpaio to make failed criminal cases against three county officials is scheduled to testify Wednesday about his role in pressing cases that critics say were trumped up...

If an ethics panel finds that Thomas violated professional rules of conduct, he could face a wide range of punishments, including an informal reprimand, censure, suspension or disbarment.

("Thomas scheduled to testify at ethics hearing" in Arizona Capitol Times)

The fact Mr. Thomas, if proven, faces these professional consequences is all well and good. But why is he not facing more, namely criminal prosecution? (see "Andrew Thomas Facing Disbarment: Is that enough?") I have read that the FBI is investigating Mr. Thomas, but the nature and extent of that investigation is not clear. And while the FBI may be investigating Mr. Thomas, there is absolutely no indication that the man who wanted to be Arizona's chief law enforcement officer is facing prosecution from state agencies.

This is about the saddest story I have ever read. The criminal justice system prosecuting underprivileged parents for enrolling their children in good schools ("20 Years in Prison for Sending Your Kids to the Wrong School? Inequality in School Systems Leads Parents to Big Risks" by Rania Khalek): 

There's a vast difference in quality among public school districts in the US--and parents who try to enroll their kids in better schools may face severe punishment....

Kelley Williams-Bolar, an African-American single mother living in the housing projects of Akron, Ohio.... she was convicted on two felony counts of tampering with court records and sentenced to 10 days in jail with three years probation for illegally enrolling her kids in the predominately white and higher-quality school district next door.

Ten days in custody, however, is no where near as bad as what another mother is facing:

Tanya McDowell, a homeless single mother from Bridgeport, Connecticut, was arrested for registering her 5-year-old son for kindergarten in the affluent school district of Norwalk by using the address of her son’s after-school babysitter, Ana Rebecca Marquez. McDowell is currently facing up to 20 years in prison.

I do not understand how we can claim to live in a modern, Western democracy when citizens like Ms. McDowell are prosecuted, but the Wall Street crooks who almost bankrupted, and still may do so, our nation walk free and unhindered.

In case anyone who reads this blog knows of an underprivileged American who facing felony charges in Arizona for enrolling their children in a good school, please let me know.

There is a very sad story out of New York where a man, Rayon McIntosh, recently released from prison got into a video taped altercation while working at McDonalds. New York prosecutors want to charge Mr. McIntosh with what would be the equivalent of aggravated assault in Arizona. 

Rayon McIntosh appeared in Manhattan Criminal Court yesterday to face assault and weapons charges in the Greenwich Village beatdown seen round the Net. "My son is a loving individual - not a criminal," said the 52-year-old mom, who did not give her name. "He wasn't walking the streets and looking for a fight or trying to rob somebody. He was working." 

McIntosh, 31, spent more than a decade behind bars in the 2000 slaying of a classmate. In the incident last Thursday at the Mickey D's on W. Third St., he apparently snapped when Denise Darbeau and Rachel Edwards, both 24, allegedly lobbed a barrage of insults at him and co-workers.

Michael Joseph, who was also working that night, testified that one of the women yelled at a third employee: "F--k you! I hope you get deported." When the two women jumped over the counter, he said, McIntosh grabbed a metal rod and started hitting the two. Darbeau suffered a fractured skull.

("Mom of burger flipper caught on video beating two McDonald's customers defends son" by Trevor Kapp) 

To me, the most important part of this story is not the sensational and blood curdling details; it is not whether Mr. McIntosh was justified or not, but the fact that in America, there is no such thing as "paying your debt to society" and moving on with your life. As Sasha Abramsky wrote in the Slate Magazine story "Prisons and a permanent underclass": 

In devastating detail in Daedalus, the sociologists Bruce Western of Harvard and Becky Pettit of the University of Washington have shown how poverty creates prisoners and how prisons in turn fuel poverty, not just for individuals but for entire demographic groups. Crunching the numbers, they concluded that once a person has been incarcerated, the experience limits their earning power and their ability to climb out of poverty even decades after their release.

Not only do the prisoners themselves face the economic consequences of having served time, but their children do as well:

Western and Pettit found that after being out of prison for 20 years, less than one-quarter of ex-cons who haven't finished high school were able to rise above the bottom 20 percent of income earners, a far lower percentage than for high school dropouts who don't go to prison. They conclude that the ex-cons end up passing on their economic handicap, and by extension the propensity of ending up behind bars, to their children and their children's children in turn. As evidence, they cite recent surveys indicating children of prisoners are more likely to live in poverty...

I don't know what will happen to Mr. McIntosh. I can only hope, despite the fact he already served time for a violent crime, is not automatically convicted because of that fact. 

Not very people are aware of the fact, but there was very important decision for Arizona Bankruptcy courts. In a decision called In re Veal (09-14808), the Bankruptcy Appellate Panel of the Ninth Circuit overturned Arizona Bankruptcy Judge Randolph Haines when that panel held:

[W]e determine that the record does not support the bankruptcy court's finding that Wells Fargo had standing... in AHMSI's claim objection appeal, the bankruptcy court did not make findings necessary to determine AHMSI's standing as a person entitled to enforce the Veals' obligations...

For those who are unfamiliar with recent developments in the rash of foreclosure's in recent years, mortgage lenders who were originated loans were transferring the deeds of trust, or mortgage, separately from the notes obligating the debtors. When some of these loans became delinquent, the loan servicer was foreclosing on the properties. But in many circumstances, however, there was a problem with the procedure the banks followed because they were not documenting the transactions properly.

The hearing comes as federal and state regulators are probing whether financial institutions improperly filed foreclosure documents amid a rush to process them. Bank of America, JPMorgan Chase and Ally Financial's GMAC (GMA) Mortgage division, which collectively service $6.4 trillion in mortgages, all are under investigation.

("Robo-Signing Foreclosure Mess: Bank of America Vows to Do Better" by Danny King) 

A friend of mine who does a lot of bankruptcy work even told me that banks were deliberately falsifying mortgage documents and filing those false documents with the court. He also tells me the bankruptcy courts, US Trustee's Office, FBI, and Obama Administration do not care for the simple reason big banks are too powerful. As I had written many times before, it appears there are different rules for ordinary Americans and Wall Street big banks. 

The importance of the In re Veal case is that is the first time anyone has held the fire to the feet of banks. Despite that fact and the clear holding of the B.A.P., it does not appear that all Arizona bankruptcy judges are forcing banks to follow the law when foreclosing on a person's home. 

The Arizona Senate tried help consumers by passing SB 1259 "foreclosure defense law". While the Senate passed the bill, the State House has not. Why not I don't know. Nevada is working on a similar law with more teeth: Nevada bill 284 even permits incarceration for failure to comply. Nevada's Attorney General also filed an extensive complaint in United States District Court against major banks and the foreclosure disaster. 

What would be even better is if Congress would pass a law to overturn the United States Supreme Court's decison in Nobleman. In that case, the Supreme Court ruled that a homeowner could not cram-down, or reduce the principle to market value, of a debtor's primary residence. Despite some effort by Congress to overturn that terrible decision, Congress did not do so because, that's right, the Big Bank lobby in Washington, D.C.: 

President Barack Obama called on Congress in February to give federal bankruptcy judges more power to modify the terms of mortgages for at least some homeowners in bankruptcy proceedings... The legislation also has powerful foes. In particular, it is strongly opposed by the banking industry.

("Battle on the Home Front-A proposal to modify mortgages in bankruptcy fails in Congress, but proponents say it's the missing weapon in fighting foreclosures" by Steven Seidenberg)

I don't know what is the saddest feature of this mess, that Congress would listen to the deep pockets of Wall Street Big Banks over consumers, or the fact the media did not give this story any attention. 

It was the case that turned an unknown former DEA agent, Joe Arpaio, into the Sheriff of Maricopa County. It is the Buddhist Temple murder case, in which:

[James] Doody was convicted of the slayings of six priests, a nun and two helpers during a robbery at the Wat Promkunaram temple west of Phoenix. The bodies were found arranged in a circle, and all had been shot in the head. Doody, who was 17 at the time of the killings, was sentenced to 281 years in prison after he was convicted of murder, armed robbery and other charges in the slayings. He maintained that he's innocent.

(see "Prosecutors Mull Possible Retrial in 1991 Murders" by Jacques Billeaud)

Despite that confession, the Ninth Circuit of Court Appeals overturned the conviction because they ruled the confession was coerced by the police: 

A full panel of the 9th Circuit overturned the conviction of a man who confessed as a teen to participating in the 1991 murders of nine people, including six Buddhist monks, at an Arizona temple. The Seattle panel said Johnathan Doody's confession had been coerced "after nearly 13 hours of relentless overnight questioning ... by a tag team of officers...

The panel "held that nearly thirteen hours of relentless overnight questioning of a sleep-deprived teenager by a tag team of officers overbore the will of that teen, rendering his confession involuntary."

(see "Teen's Conviction in Temple Murders Reversed" by Elizabeth Banicki)

Prosecutors took the case to the United States Supreme Court, but that court just ruled the Ninth Circuit did not make a mistake and thus, the confession is not admissible. Prosecutors will not decide if they want to retry Mr. Moody without the confession in evidence. 

Prosecutors in Arizona were expected to announce Tuesday whether a man convicted of killing nine people at a Buddhist temple will be retried. The decision will come after the U.S. Supreme Court on Tuesday refused to overturn a decision that threw out his confession.

My own feeling on this case is that while I am very happy the Supreme Court upheld the idea that coerced confessions have no place in our system of justice, the whole Miranda and voluntariness analysis is overly complicated and self-defeating. Maybe, as I wrote before in "The Miranda Myth: Why It's Time to Change Miranda" it would more sense to exclude all confessions, coerced and voluntary alike, made to the police, but allow the prosecution to call the defendant as a witness in its case in chief. 

Since the Wall Street meltdown of 2009, there has been quite a bit of speculation concerning the cause of the meltdown. One thing that is certain is that banks were pushing exorbitant loans beyond the means of consumers.

Most of the information on that point is that while banks should have known better than give expensive loans- backed by the American tax payer-to consumers, banks did nothing deceptive. For example, according to a story by Hugh Son, Dawn Kopecki and Donal Griffin of Bloomberg News "BofA May Face HUD Fraud Claims for Soured Countrywide Loans":

Bank of America Corp. should face fraud proceedings after its Countrywide unit submitted faulty data to back up claims for reimbursement on federally insured mortgages...

“Countrywide did not properly verify, analyze, or support borrowers’ employment and income, source of funds to close, liabilities and credit information,” Kelly [Anderson, compliance auditor] wrote in the audit. “This noncompliance occurred because Countrywide’s underwriters did not exercise due diligence in underwriting the loans.”

That viewpoint, however, that all it was only a lack of diligence but not malfeasance, may not be entirely correct. As Michael Hudson writes in "Countrywide protected fraudsters by silencing whistleblowers, say former employees": 

By intercepting the documents before they were sliced by the shredder, the investigators were able to uncover what they believed was evidence that branch employees had used scissors, tape and Wite-Out to create fake bank statements, inflated property appraisals and other phony paperwork. Inside the heaps of paper, for example, they found mock-ups that indicated to investigators that workers had, as a matter of routine, literally cut and pasted the address for one home onto an appraisal for a completely different piece of property.

Rolling Stone writer Matt Taibbi also wrote a great article called, simply and appropriately enough: "Is the SEC Covering Up Wall Street Crimes?". I have included Mr. Taibbi's introduction to his article because it is probably the best piece of writing I have seen in a decade: 

Imagine a world in which a man who is repeatedly investigated for a string of serious crimes, but never prosecuted, has his slate wiped clean every time the cops fail to make a case. ...

This is a different world, one far friendlier to lawbreakers, where even the suspicion of wrongdoing gets wiped from the record.

That, it now appears, is exactly how the Securities and Exchange Commission has been treating the Wall Street criminals who cratered the global economy a few years back

So far, no one, not the FBI, US Trustee, US Attorneys' Office, nor the Obama Justice Department has thought of doing anything more than starting civil proceedings against big banks and Wall Street. But considering the damage these bad loans did, and the fact the American consumer had to rescue them, why shouldn't criminal charges be in order?

The Wall Street meltdown was the most destructive event since the September 11 attacks. Why shouldn't our nation's response be just as purposeful? If the Obama Administration won't do anything, maybe there is a state attorney general who will step in and do what the federal government isn't willing to. What I am thinking of is how Eliot Spitzer, New York Attorney General in 2001, investigated Wall Street and Merrill Lynch when the Bush Administration was unwilling to do so ("Eliot Spitzer: Wall Street's Top Cop"). 

Wall Street would never be the same. Spitzer opened an investigation that in just a few months began fundamentally reshaping America's financial markets. Analysts, Spitzer would show, were doctoring their reports--which the public relies on for stock information--to win business for their banks' investment arms or to downgrade companies that didn't play ball.

Is there anyone in America willing to take on Wall Street crimes? Sadly, so far the answer is no. 

Donald Lapre, the infamous Phoenix based TV pitchman, committed suicide while in custody in a private prison complex in Florence. He was in custody on federal fraud charges. As Eddi Treviz reports in today's Arizona Republic "Phoenix infomercial pitchman Donald Lapre found dead":  

U.S. Marshals said Donald Lapre, a Phoenix-based infomercial pitchman, was found dead in his cell Sunday at a federal-contract facility in Florence. Lapre was being held on fraud charges linked to his vitamin-selling business. He was arrested in Tempe earlier this year. Lapre was found about 8:30 a.m., unresponsive in an apparent suicide attempt, said Matt Hershey, supervisory deputy U.S. Marshal.

Federal officials have not said which private facility it was or who was running it. My well-founded suspicion is that it was a Corrections Corporation of America facility. If so, this is not the first death of an inmate at CCA. See "The ACLU suing Corrections Corp. of America-Organization claims violence is out of control at the Idaho Correctional Center":

The American Civil Liberties Union is suing state prison officials and a private company, claiming violence is so rampant at the Idaho Correctional Center that it's known as "gladiator school" among inmates... 

The lawsuit says Idaho's only private prison is extraordinarily violent, with guards deliberately exposing inmates to brutal beatings from other prisoners as a management tool. The group contends the prison then denies injured inmates medical care to save money and hide the extent of injuries.

In fact, it seems that CCA guards at the facility were taping fights among inmates "Idaho prison guards 'filmed watching inmate attack'": 

Prison surveillance cameras in Idaho have captured footage of one inmate beating another prisoner, while guards looked on, AP news agency has reported. The man being attacked, Hanni Elabed, appears to bang on a guard station window for help, the video obtained by AP shows, but guards do not intervene.

Also, at least nine deaths occurred at a CCA facility in Eloy, Arizona. See "Officials Hid Truth of Immigrant Deaths in Jail." 

My hope is that these deaths, tragic and preventable, put pressure on our leaders to do the obvious and necessary thing: ban private prisons. 

"It's going to come down to what the doctors say, so if there's no real evidence that he's competent to stand trial, it's kind of out of the prosecution's hand," Phoenix Attorney Vladimir Gagic said. Too read the rest of the story see "Will Tucson shooting suspect Jared Loughner be ready for trial?" by Steve Kuzj Phoenix station ABC 15 KNXV. 

Troy Davis' execution, who has been on Georgia's death row since 1991 for killing an off-duty police officer, will continue as scheduled. His lawyers, including the Innocence Project, were asking for a polygraph examination to prove his innocence.  Unfortunately for Mr. Davis and his family, however, the courts have denied his request. As reported in today's New York Times by Kim Severson (Request for Lie Detector Test for Davis Is Denied): 

As last-minute appeals to spare Troy Davis from execution at 7 p.m. on Wednesday pour in from across the United States and Europe, his lawyers asked the state for one more chance to spare him: a lie detector test.

But the Georgia State Board of Pardons and Parole, which on Tuesday denied Mr. Davis’s clemency after a daylong hearing Monday, quickly responded that there would be no reconsideration of the case, and the polygraph test was abandoned.

As is typical for American death penalty cases, this case has attracted quite a bit of attention around the world, with many activists, including some death penalty supporters like former FBI director William Sessions asking for a commutation of the sentence. 

My own feeling of the death penalty is that the ultimate sentence for murder should be decided by the public, either through direct democracy or the legislature. And every indication I have seen is that the vast majority of the population favors the death penalty over life in prison for some very severe crimes. I am not fond of judges deciding policy, such as whether or not the death penalty is legal, based on abstract constitutional principles. Even though in some circumstances the public may be wrong and the judges may be right, it is much easier to fix mistakes by legislatures than mistakes by judges, and that is why I believe judges have no place making policy.  

Ultimately, notwithstanding the fact we are all dead in the long run, the democratic process will be right more often and sooner than rule by elites and judges. Just consider the fact it took half a million American dead to reverse the awful Dread Scott decision, and that President Roosevelt had to threaten court packing to defeat the anti-New Deal Supreme Court of the 1930s. Progressives seem to believe that judicial social engineering has always favored their causes, but that belief is hardly accurate. Thus, I think it right the Supreme Court has said it is up to states to decide if the death penalty should be applied.

As far as the self-righteous Europeans and internationals, even though the European Union officially opposes the death penalty and demands joining nations scrap the death penalty, I have seen polls that show most of the European public favors it. How odd that an organization allegedly dedicated to the rule of law and democracy would ignore its own people on such an important topic.  

Some well-meaning people argue the government does not have the right or moral authority to execute criminals. I find that argument completely unconvincing. If our government has the right to send blameless 18 year old boys to storm machine guns nests in France, Iwo Jima, and if need be, anywhere else in the world, then it certainly has the right to execute criminals if that makes us safer. 

There also is quite a bit of attention drawn to the fact if we execute someone, and it later turns out the defendant was innocent it will be too late. Unfortunately, that is true of all criminal sentences and it does not apply exclusively to the death penatly. The simple fact is, in America, once a jury has found a defendant guilty, regardless of how flawed the procedure may have been, that is the end of it. I know the Innocence Project has done a lot of good work, but that is the textbook example of the "exception that proves the rule." And thus, if an innocent man were to get life in prison instead of the death penalty, the only difference is he would die in his cell at age 70 than in a gurney at age 50. From my point of view, the latter may be better than the former. 

In any event, while the American public seems to in favor of the death penalty, is that right? Even if we could know for certain that death row inmates were guilty, which we can't, is the death penalty the right policy? The main, if not only, reason for supporting the death penalty is that it is supposed to deter murders and save lives (see "The Death Penalty Deters Crime and Saves Lives" by David Muhlhausen). I once heard a statistic, probably from a pro-death penalty organization, that every execution saves something like 8 lives. That statistic was taken as conclusive proof of the value of the death penalty. 

I disagree with that conclusion because even if true, that statistic only proves the death penalty saves 8 lives more than no punishment at all, not 8 lives more than a life sentence as an alternative. As I wrote before, just punishment is not just about any punishment to get the job done; it is about the right punishment ("lightest touch"). And thus, for the death penalty to be good policy, there would have to be conclusive proof that the death penalty saved more lives than the alternative of life sentences. So far, that proof does not exist. 

Seemingly everyone has heard of Miranda rights and the notion that a suspect has the right to remain silent in the face of police interrogation, and that no one, regardless of the nature of the crime, can be compelled to testify against himself. Even members of my own family who live in Eastern Europe and have watched American TV shows are aware of a person's right to remain silent. This, of course, is from the very well-known decision of Miranda vs. Arizona. 

But is this right real? Do we really have the right to remain silent, and is it really true that we cannot be forced to say anything that will tend to incriminate us? For the following reasons, I say no, and it might be time to modify or even eliminate the putative right against self-incrimination. The idea that a person cannot be compelled to testify against himself is nominal only, and it is not real. It is a fiction and would be better called the Miranda myth. It is a right that does not truly exist.

Usually when the police stop someone who they believe is a suspect in a crime, they do not technically "arrest" the person. While the police stop someone, and even use handcuffs, and force him to talk to them, the police and courts, call that an investigative stop or detainment.  That means the police are free to talk to the suspect without informing the suspect of Miranda rights.

Only after the suspect actually confesses or otherwise incriminates himself does that detainment move into the realm of custodial interrogation. And only after that point are the police required to inform the suspect of his rights. So we have the odd situation of the police talking to a suspect, the person is not free to leave, but yet not informed of his Miranda rights. And he only gets read his Miranda rights after he has already confessed. It's like telling someone he might want to stop smoking after he is already dead. 

But what if the suspect, even though he may have confessed during the detainment, does not testify? Let's say he gets a public defender, after he is already indicted, who tells him to keep quiet and not testify. The police can't use his statement if he doesn't testify, right? Yes they can, because of a peculiarity in the rules of evidence known as a admission by party opponent, the prosecution can still use the defendant's statement he made pre-Miranda even if he does not testify.

But what if the suspect does not confess and does not testify? Because his incriminating statements can be used by the prosecution if he does not testify, his exonerating statements can be used by the defense? That is, his exonerating statements can be introduced into evidence just like incriminating statements? No, because those exonerating statements would not be an admission by party opponent, they would be hearsay and not admissible.

The bottom line of all of this is that according to the current state of criminal procedure and the rules of evidence, the right against self-incrimination is not real.  That is because any incriminating statement will essentially be both pre-Miranda and non-hearsay. But any exonerating statement would be inadmissible hearsay.

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This is a question that I am asked all the time, and most of the people who ask me the question assume that I will answer the question by saying "yes, drugs should be legal." That assumption would not be correct. While I think current drug laws are too strict, I think most criminal laws are too strict and there is nothing in particular about drugs laws that make them unusually severe or unnecessary.  Most of the arguments I see that favor legalizing drug would be better dealt with by reforming criminal sentencing overall. 

The simple fact is that if use of narcotic drugs were legal, drugs would be much cheaper than they are now and more people would abuse them. That is just because of the increased availability and diminished social consequences as a result of legalization.  That is not good.  As someone who has dealt with a lot of people who have used and abused drugs, I find nothing redeeming or beneficial about drug use.  And that includes marijuana use.

And while many people who want drug legalization point to the fact alcohol is a drug and is legal, to me that argument is just the more reason illegal drugs ought to remain illegal. If a house is burning down, that is not a good reason to throw fire on the flame.  For examples of the usual arguments of legalizing all drugs, see "Legalize drugs — all of them" by Norm Stamper, the former chief of Police in Seattle: 

I favor legalization, and not just of pot but of all drugs, including heroin, cocaine, meth, psychotropics, mushrooms and LSD...I've never understood why adults shouldn't enjoy the same right to use verboten drugs as they have to suck on a Marlboro or knock back a scotch and water.

Having said all that, however, there is one good reason legalizing the sale and purchase of drugs should be legal: it will greatly reduce violent crime.  Ironically, most drugs laws punish drug dealers much more severely than drugs users, but that distinction may be outdated and unhelpful.  That is because most of the violence from drugs is a direct result of the fact that drug dealers do not have a legal mechanism to resolve grievances other than violence.  If you are a drug dealer and someone breaks a deal with you, you can't sue them.  So most drug dealers resort to violence. But there is nothing inherently violent about the commerce of drugs other than the fact that the commerce of drugs is illegal. 

Maybe a way we could reduce violence is by making the sale and purchase of drugs legal, and thus, drug dealers would not have to resort to violence and they would have a legal alternative to dispute resolution. But the actual possession and use of drugs would stay illegal.  That way, while violence would decrease greatly and drugs would probably be much cheaper, the social and legal hindrance to their use would still exist. 

If someone has downloaded pornographic images of children, should they automatically go to prison? For how long? Is mere possession of child pornography sufficient reason to send someone to prison for decades, even if the suspect never touched a child? Recently, a Payson man received 90 years in prison for merely possessing child pornography, for which the sentencing judge called the sentence "clearly excessive", but had no choice because of mandatory sentencing laws (see "Robert Thomas Flibotte Gets 90 years in Prison for Possessing Child Porn"). Another man, Gulf War veteran Joseph Lauricella, just received a five year sentence from Judge Derek Carlisle in Mohave County (see "LHC Veteran Apologizes During Child Porn Sentencing" by Dave Hawkins). 

I know that some people who read this post will have the visceral reaction that of course, if you someone has child pornography, put them in prison and throw away the key. Or even better, put them on a desert island and and forget about them. To those people, this blog is not for you, and if you feel the overwhelming desire to vent your self-righteous frustration, find another forum.  This blog is for people who can actual consider actions and consequence, and who do not seek every chance to validate their own self-congratulatory moral superiority. 

In some states, merely possessing child pornography is a misdemeanor, but in Arizona it is a felony with a minimum sentence of 10 years for each count. Arizona's statutory scheme is even more severe than the notoriously harsh and rigid federal sentencing guidelines.  The mandatory minimum in federal court is five years, or half what Arizona requires.  But is either right?  

According to the no so liberal Wall Street Journal, some federal judges do not believe mere possessors of child pornography are an actual threat and that the Congressional mandatory minimums are excessive. In fact, they are nothing more than puritanism in the guise of public safety ("Making Punishments Fit the Most Offensive Crimes" by Amir Efrati). 

These acts alone are disgusting to most people. But not everyone buys into the idea that they warrant two decades or more in prison. Federal judges around the country are speaking out against what they view as harsh mandatory and recommended sentences, spurred by Congress in recent years.

The sentencing guidelines for child pornography crimes "do not appear to be based on any sort of [science] and the Court has been unable to locate any particular rationale for them beyond the general revulsion that is associated with child exploitation-related offenses," wrote U.S. District Court Judge Robert W. Pratt.

The important point here is these are cases in which there is absolutely no reason to think the suspects actually ever touched a child, only that they possessed images.  

In possession cases where there is no evidence that defendants sought to abuse minors, several judges are giving much lower sentences than the guidelines intend, which they are allowed to do if they believe the recommended punishment doesn't fit the crime...

William Griesback, a federal judge in Green Bay, Wis., wrote: "The fact that a person was stimulated by digital depictions of child pornography does not mean that he has or will in the future seek to assault a child."

Certainly, the point of these judges is not that possessing child pornography is tasteful or laudable, just that automatically handing out decades in prison for mere possession is vindictive.  And such vindictiveness has no place in a democractic and thoughtful America. 

Also see this article in the New Times Magazine called "The price of a stolen childhood" NYTs ICP and Restitution 1-24-13.pdf" By Emily Bazelon

The Phoenix Police Department is having a terrible time lately.  There is the ongoing Sgt. Sean Drenth investigation that is not getting any closer to resolution, with the very real possibility that fellow Phoenix police officers murdered Sgt. Drenth with the intention of covering up police corruption. 

Now there is another disaster looming, and I hope the public and media do not let Phoenix police off the hook without due scrutiny. During a training exercise last week at Sky Harbor Airport, Phoenix Police lost a bomb during training (see "Phoenix police take blame in stolen-bomb flap" by William Hermann of Arizona Republic).  

The Phoenix Police Department has taken full responsibility for recently losing a bag containing explosives during a security test at Phoenix Sky Harbor International Airport, and acting Chief Joe Yahner vowed to conduct a full internal investigation of the incident.

Officers were conducting a training exercise with bomb-sniffing dogs on Friday about 2:30 p.m., when a training aid with explosives inside went missing. It turned up Monday on a south Phoenix roadside.

While no one was hurt, this example goes a long way in showing the disaster that is the Phoenix Police Department, and I, for one, have very little confidence that the administration at Phoenix Police will take the necessary steps to investigate this matter and make sure it never happens again.  

So what should be done? For one thing, I think the possibility of felony charges, like endangerment, should be on the table. Phoenix Police should not get immunity just because this was a police training exercise, and the they should not be treated any differently from private individuals.  Firing a negligent officer, if it even comes to that, is just not enough punishment for this sort of mistake.  Losing a bomb at the airport is every bit as dangerous as a drunk driver driving on the wrong side of the road, which the county attorney routinely charges as felony endangerment.

Second, as I have written many times before with regard to Sgt. Drenth, the Phoenix Police Department is broken, and the best way to fix it is a civilian police commission.  

Even though the US Attorneys' Office committed an error in the first trial for perjury, Roger Clemens will be facing another trial for perjury for allegedly lying to Congress (Clemens faces second perjury trial in April). 

US District Judge Reggie Walton set a new trial date of April 17, in the opening weeks of the 2012 baseball season, on charges Clemens lied under oath to Congress in 2008 when denying he took performance-enhancing drugs.

Clemens, a seven-time Cy Young Award winner as his league's top pitcher, was charged with perjury, false statements and obstruction of Congress for telling a US House of Representatives committee under oath that he never used steroids or human growth hormone (HGH) in his Major League Baseball career.

Judge Walton did not believe that the prosecution deliberately tried to cause a mistrial, and thus, despite the expense to Mr. Clemens, there is no double jeopardy and he will face another trial.  If the judge believed the prosecution deliberately tried to cause a mistrial, then the judge could have barred the prosecution from trying Mr. Clemens again.  That is called prosecutorial misconduct and that is what Mr. Clemens defense attorneys' argued.

The reason a prosecutor would deliberately try to cause a mistrial is that once the jury is sworn, if the prosecution wants to dismiss the case for whatever reason (gather more evidence, locate a witness, etc...) that dismissal will mean the end of the case.  However, if there is a mistrial through inadvertence, as the prosecution claims happened here, then there is no double jeopardy and the prosecution is free to bring the defendant back to trial. 

One of the interesting things about this case is that the judge made the point that even if the prosecution did not intend to cause a mistrial, Mr. Clemens has spent a lot of money on his defense attorneys, who it seems are very expense.  "A tremendous court time has been consumed... it cost Mr. Clemens a lot of money."

With all due respect to the Judge Walton, the cost to Mr. Clemens is irrelevant. Why should a judge care how much money the defendant has spent? Should a judge bar a second trial if the defendant has spent a certain amount of money on his lawyers? If so, what about a poor defendant with only a public defender or court appointed attorney? That defendant doesn't get that argument? 

Beyond the ability and skill of an attorney, no one should get any additional benefit from having the money to hire an expensive attorney. Mr. Clemens had the right to hire his own counsel, which he did for his own benefit, and at his own peril. 

I make the point of Judge Walton's statement not to criticize Judge Walton, but to illustrate what I think is a problem with our current justice system.  Those with money and who are established get "better" justice than the rest of the population.  Judge Walton's statement inadvertently brings that point to the surface. And thus, as I wrote with regard to the Strauss-Kahn dismissal, it may be time we considered making all criminal defense lawyers public servants, regardless of the financial resources of the defendant. 

There are some criminal sentences in Arizona that make no sense.  Sometimes sentences are too long and sometimes they are too short.  Usually, politicians would rather err on the side of making sentences too long because the victims of sentences that are too long do not vote.  Even worse, the media rarely takes an interest in reporting the fact too many Americans are in prison or that in many instances, Arizona's sentencing laws make no sense. 

A perfect example of the fact some of Arizona's sentencing laws are absurdly long is the case of Robert Thomas Flobotte ("Flibotte given 90 years for child porn" by Alexis Bechman of the Payson Roundup). 

A jury on July 28 unanimously found Flibotte guilty on 10 counts of possessing child pornography.  During trial, the state presented Flibotte as an avid collector of child porn, who hoarded thousands of explicit sexual images and hundreds of videos involving children, some as young as 3.

While these allegations are serious and certainly warrant criminal charges, there was no allegation that Mr. Flibotte actually touched a child.  The sentencing Judge Cahill said "he would have sentenced Flibotte to probation if the law had allowed it, but Arizona has some of the strictest child pornography laws in the U.S." Thus, Judge Cahill had no choice but to sentence Mr. Flibotte to 90 years, a sentence Judge Cahill called "clearly excessive."  

Judge Cahill is not alone in his opinion. In an editorial opinion in the Payson Roundup (Unjust system compounds terrible tragedy): "[t]he 90-year sentence imposed on Robert Thomas Flibotte for collecting child porn on his computer offers nothing but tragedy and heartache for this agonized community." 

These sorts of sentencing disasters are the result of the Arizona legislature taking sentencing discretion away from judges and imposing mandatory minimums and mandatory consecutive sentences. While even the best judges make mistakes and over the years I have had many instances where I have disagreed with a ruling, the vast majority of Arizona judges are careful, serious, and concerned. Arizona should now give our judges back the power that our democracy had given them for over a hundred years, the power to actually judge. We should trust their ability to make appropriate rulings on sentencing.

This is part one in a three part interview with Arizona Representative Cecil Ash concerning the very important topic of reforming the Arizona penal system and changing how sentencing is done in Arizona.   Those who wish to help may contact Rep. Ash at his legislative office at 602-926-3160 (cash@azlag.gov), or through his webpage at www.cecilash.com

Rep. Ash is a Republican from Arizona's 18th Legislative District. He is from Mesa, Arizona, and before becoming a member of the Arizona House of Representatives, he was an attorney practicing in real estate and criminal law. As a Maricopa County Public Defender from 1990 to 1995, Rep. Ash defended numerous major felonies, including defending first degree murder cases.

I first noticed Rep. Ash in an article in the Arizona Republic (Arizona prisoner reforms working, study says) in which he stated he introduced "evidence based reform" legislation. I thought it was particularly interesting that a Republican from Mesa would advocate legislation designed to reduce penal consequences. Rep. Ash has kindly agreed to this interview in which he will explain exactly what evidence based reform means and why the public should embrace it.

1) Rep. Ash, thank you for agreeing to this interview. What motivated you to propose sentencing reform legislation and introduce legislation in the Arizona House? I can't imagine that this topic is politically popular, or is it popular among your constituents?

Rep. Ash: You're correct. It's not necessarily popular with constituents. I ran for office to balance the budget. But as I was sitting on the judiciary committee hearing bills, I began to remember my experiences as a public defender. I remember having clients who posed no threat to the public who were harshly sentenced to long prison terms, and I thought, at this time of budgetary constraint, maybe we should re-examine who we're incarcerating, and for how long. It has been several years since the implementation of our current criminal code, and it's time to assess how successful it's been.

2) Do you believe that too many Arizonans, and Americans in general, are in prison?

Rep. Ash: The United States incarcerates more of its citizens than any other country -- by far. It has 5% of the world's population, and 23% of the world's prisoners. One in every 33 citizens is under the jurisdiction of the criminal justice system (either in prison, jail, on probation or parole). One in every 100 persons is actually incarcerated. Washington State has roughly 6.5 million people, about the same as Arizona. Yet Washington has only 18,000 inmates, whereas Arizona has 40,000+ inmates. Massachusetts has 6.3 million residents, and has only a little over 11,000 inmates. Clearly, we have a disproportionate number of inmates vis-á-vis our population.

3) What exactly does evidence based reform mean? Does it simply mean shorter prison sentences and probation terms across the board for all crimes?

Rep. Ash: No. It means having data-driven policies. It means looking at what social science has accomplished in terms of changing behavior. For example, formerly, a person under probation supervision might miss an appointment, and the probation officer would say, "Don't do that again." The next time, they would say, "Now, you're really going to get in trouble." After somewhere between eight and 15 violations, they would run out of patience and "violate" the probationers, sending them to prison.

What social science has taught us is that if the first time a probationer fails to show up you send him to jail for the weekend, he's not likely to fail to show up again. In other words, using intermediate sanctions is more successful than allowing multiple screw-ups and then imposing a very harsh consequence. In addition, we've learned that there are a number of social constructs that can predict aberrant behavior.

By applying risk assessments early on in the process, we can better predict what sanctions work best with various individuals. The evidence comes from studies that have been made, or from the experiences of other jurisdictions that have run successful programs.

But a more important corollary question is "On what evidence is the existing system based?" Who decided and how were the current sentences established? Who decided, for example, that someone who possesses child pornography should receive a felony and serve 10 years in prison for each picture, rather than a misdemeanor and a large fine and probation as in some other states? When people question the evidence that we are using, I want them to present the evidence for justifying the status quo.

4) For the average Arizonan, is evidence based reform something that will make them safer even if it means possibly shorter sentences for some crimes? What I mean by that is even if sentencing reform has a net economic benefit for the state as a whole, is there a danger that Arizonans will be less safe than they are now?

Rep. Ash: First of all, no one who constitutes a serious danger to the public is likely to be eligible for the suggested reforms. However, an evidence-based program will result in further decreases in crime. Lengthy incarceration can be a training ground for new and more sophisticated criminals. The longer someone is incarcerated, the more difficulty he will have re-adjusting to society. One formerly successful businessman who was incarcerated for drug use told me that he had learned five new ways to steal an identify while serving his time. Another inmate said he went in with an associate’s degree in crime, and came out with a doctorate.

Right now inmates have little incentive to either better themselves or to improve their conduct. Formerly, we offered incentives for good behavior, or for successful educational or behavioral modification programs that gave inmates the hope that if they worked hard and changed their behavior, they might get out earlier. Those incentives no longer exist. An incentivized release program would not only make our prisons safer, but would decrease the number of inmates, and allow additional resources to be used for further educational and rehabilitation opportunities. It's been said that "education is the cheapest form of crime prevention" --both for the inmate, and for those of us involved in policy decisions.

(see part two of interview)  

How did Phoenix Police Officer Sgt. Sean Drenth die? Did he commit suicide while on duty or did his fellow Phoenix Police Officers murder him to keep him quiet on police corruption? No, this is not my attempt at a screenplay, but a real life story. (see "Did a Rogue Cop Kill Phoenix Police Sgt. Sean Drenth?")

This case has just had a new twist: A judge has ordered 5 Phoenix Police Officers and a city of Phoenix employee to undergo DNA testing. (From James King of Phoenix New Times "Five Phoenix Cops Ordered to Turn Over DNA in Sgt. Sean Drenth Death Investigation"): 

Five Phoenix police officers and one city of Phoenix employee who refused to turn over their DNA to detectives investigating the mysterious shooting death of Phoenix Sergeant Sean Drenth were ordered last week by a judge to give up their DNA -- much to their dismay.

The Phoenix Police Department is not claiming these 6 individuals are responsible for murdering Sgt. Drenth, but rather they need the DNA specimens to rule out DNA found at the scene. (From Peter Busch of KPHO CBS 5 "Are 5 Phoenix officers suspects in death of fellow cop?") 

Dozens of police officers were at the crime scene after Phoenix police Sgt. Sean Drenth was found shot to death near the Capitol last October.  That put DNA evidence all over the place, and ever since, the lead detective has been asking for voluntary DNA samples to cross people off the list.

In fact, official Phoenix Police Department statements is that the department is not even sure if Sgt. Drenth was murdered or committed suicide.  A couple of issues to mind. First, it is ironic that some officers refused to voluntarily submit DNA samples.  As Phoenix Police Officers Union Joe Clure said ""It's not a question of if they have anything to worry about, it's a matter of their constitutional rights just like with any other citizen".   I use the word ironic because I cannot even count how many times I have heard a police officer say during an investigation, interview, or trial something along the lines of "only guilty people don't cooperate with police investigations".  

Second, why is the Phoenix Police Department investigating this matter?  It seems to be a clear conflict of interest, and if Phoenix Police Officers are responsible, will Phoenix PD have the will or ability to uncover that? Shouldn't the Arizona Department of Public Safety, or even the FBI, be handling this investigation? The State Bar tells lawyers all the time that we must avoid "even the appearance of impropriety".   I think the Phoenix PD should heed that lesson as well and turn over the investigation to another police agency. And as I have said before a number of times, a civilian police commission for Phoenix might be a good idea to avoid disasters such as this one.  

P.S. Below I have included part of the mission statement of the Los Angeles Police Commission.  A Phoenix Police Commission with a similar mission statement would certainly be an upgrade. 

The Commissioners routinely spend 25-50 hours per week on Commission business, and serve as the citizens’ voice in police affairs and as a means of ensuring more responsive and effective City government. The Commissioners’ concerns are reflective of the community-at-large, and their priorities include implementing recommended reforms, improving service to the public by the Department, reducing crime and the fear of crime, and initiating, implementing and supporting community policing programs.

In a surprising development, the jury in the Michael Jaskcht Carefree motorcycle case was deadlocked on all the felony counts against Mr. Jasckcht, and the judge declared a mistrial.  I just looked at the Maricopa County Superior Court website, and the counts included multiple allegations of manslaughter, endangerment, and aggravated assault.  

The manslaughter counts apply to the motorcycle riders who will killed, the aggravated assault counts to the motorcycle riders who were injured, and the endangerment counts apply to the motorcycle riders who were not hurt, but were in "firing line" could very well have been hurt. 

Clyde Nachand, 67; Stephen Punch, 52; and Daniel Butler, 35, died at the scene. Dayle Veronica Downs-Totonchi, 47, died a day later.

When I was a public defender in Pima County, I defended and tried a case almost exactly like this one.  And that is why I am surprised that the Maricopa County Attorney did not charge Mr. Jaskcht for driving under the influence of an illegal drug or metabolite.   If Mr. Jasckcht's license was not suspended or he had no previous DUIs, then there would be no basis for charging him with a felony or aggravated DUI, but even for a misdemeanor DUI conviction a defendant can get up to 6 months in custody.  

The main point of a DUI illegal drug charge is that unlike alcohol, to be convicted of the DUI drug charge, a driver must only have the illegal drug in his system and it does not matter if the illegal drug or metabolite actually affected his ability to drive.  That is, even an inactive metabolite of an illegal drug- such as carboxy THC, which can stay in a person's system 30 days after smoking marijuana- is enough for an illegal drug DUI.

According to news stories, Mr. Jaskcht passed all field sobriety tests and the only reason the police found out about the alleged illegal drug use is because he volunteered for it.  Police routinely ask drivers for chemical tests- usually urine- in fatality cases even if they have no reason to suspect drugs or alcohol, and the driver has the absolute right to refuse such requests. It may be the case, because the DUI most likely would have been a misdemeanor, that it was handling in Maricopa County Justice Court or Carefree City Court separately from the felony counts. 

When Mr. Jaskcht's testified, he claimed that he was not taking drugs illegally and the positive test results were from a diet drug.  He also said the reason he crashed into the motorcycle drivers were because his brakes failed. "I'd say it [the truck] was fine throughout the morning, then gradually it just pulled to the left," he said. "I was in shock, I was numb [after the accident]".  He also said the brakes failed even though he checked him.

My belief is that the jury did not convict Mr. Jaskcht because there were no signs or symptoms of impairment. Thus, even if a driver has an illegal drug metabolite in your system and he is guilty of a illegal drug DUI, if the driver is not impaired then he cannot be guilty of manslaughter, endangerment, or manslaughter.  

In the parlance of legal procedure, the defense did something very smart: they presented their own alternative version of events, supported by their own evidence. That evidence was Mr. Jaskcht's testimony. Under our law, the defense is not obligated to produce any evidence or offer an alternative explanation of events, and is free simply to rebut the prosecution case.  But while the defense does not have to produce evidence or an alternative explanation, when it does so, it gains a powerful advantage.  That is because while the prosecution must prove its case beyond a reasonable doubt, if the defense evidence is sufficient for the defense's alternative explanation to be "reasonable", that means reasonable doubt and not guilty.  That point is spelled out clearly in standard criminal jury instructions, the famous Arizona Portillo instruction on reasonable doubt.  

That means if the jury believes the defense evidence and explanation is reasonable- not even likely, probable, etc..- just reasonable, that means not guilty.  Here it seems the 9 out of the 12 jurors believed Mr. Jakscht's testimony was reasonable.   

Because the jury deadlocked on all the counts, Mr. Jakscht is now legal purgatory, and the county has the right to retry him on all the counts.  Double jeopardy does not apply to jury deadlocks and mistrials. My experience has also been that the conviction rate is much, much higher on retrials than original trials because if Mr. Jakscht, for example, were to testify in a second case, the prosecution could use his testimony from the first case to challenge him. 

If Maricopa County decides to re-prosecute Mr. Jakscht, they will 60 days from the end of the the last trial do so.  One thing the prosecution may need to do is work very hard during jury selection to make sure none of the potential jurors are biased against motorcycle riding victims. I don't know how careful the prosecution was in the first trial making sure none of the jurors disliked motorcycle riders (see "Should Arizonans Hate Motorcycles and Motorcycle Riders?").  I can't help but think that if this case was a car accident instead of a motorcycle accident, the result may have been different. Certainly, as someone who rides a motorcycle myself and has represented motorcycle riders in accident injury cases, I am aware that many people- especially insurance companies- consider motorcycle accidents, even when the motorcycle rider is not at all at fault, the "cost of doing business" and that motorcycle riders have essentially assumed the risk of getting hurt. 

Should 16 year old Braden Matthew Rockriver be tried as an adult? Bill Montgomery, the Maricopa County Attorney, thinks so (by James King of the Phoenix New Times): 

Maricopa County Attorney's Office spokesman Jerry Cobb tells New Times that the Mesa 16-year-old accused of murdering his girlfriend's mother will be charged as an adult.  The boy, identified as Braden Matthew Rockriver, will be charged with first-degree murder, a class 1 dangerous felony; and first-degree burglary, a class two dangerous felony, Cobb says.

According to police "[f]ollowing a brief struggle with his girlfriend's mother, Rockriver shot her [Denna Strebe] in the head with the stolen pistol."  

The first degree murder allegation means the Maricopa County Attorneys' Office believes it can prove that Mr. Rockriver acted with "premeditation" in committing the murder.  In other words, unlike the classic example of someone who kills someone else "in the heat of passion"- for example, a husband who kills his wife when he finds her in bed with another man- premeditation means the suspect actually thought about the killing beforehand.  Premeditation does not require extensive planning and is commonly referred to as "reflection" (below is the standard jury instruction from ARS 13-1105):

"Premeditation" means that the defendant intended to kill another human being or knew [he] [she] would kill another human being, and that after forming that intent or knowledge, reflected on the decision before killing. It is this reflection, regardless of the length of time in which it occurs, that distinguishes first degree murder from second degree murder. An act is not done with premeditation if it is the instant effect of a sudden quarrel or heat of passion. [The time needed for reflection is not necessarily prolonged, and the space of time between the intent or knowledge to kill and the act of killing may be very short.]

But what about charging Mr. Rockriver as an adult?  Under ARS 13-501, Mr. Rockriver, because he is 16 and charged with first degree murder, he shall be charged as an adult.  In statutory interpretation, the word "shall" means that the county attorney must follow the statute and does not have the right to charge Mr. Rockriver as a minor: 

13-501. Persons under eighteen years of age; felony charging; definitions 

The county attorney shall bring a criminal prosecution against a juvenile in the same manner as an adult if the juvenile is fifteen, sixteen or seventeen years of age and is accused of any of the following offenses: First degree murder in violation of section 13-1105...

While the statutory language seems to be clear, is it a good idea? Should a 16 year old boy be facing first degree murder charges?  Even though the United States Supreme Court has ruled out the death penalty for crimes committed while the defendant is under 18, should he be facing the death penalty?  Some states, for example South Carolina, have a death penalty provision for juveniles even though they are unconstitutional: 

South Carolina is one of 23 states where state law allows the death penalty for convicted murders less than 18 years old. State law here sets the minimum age for execution at 16 and makes age a mitigating factor — juries can consider it in making a decision on a capital sentence — until age 18. But because the U.S. Supreme Court ruled six years ago that executing murderers below the age of 18 was “cruel and unusual punishment,” it really doesn’t matter what South Carolina law says...

Needless to say, assuming the allegations are true and that government can prove them beyond a reasonable doubt, the punishment Mr. Rockriver should face is not easy to determine.  A couple years in custody and then release at 18 is obviously too lenient, but the rest of his life, let's say 50 years in custody, isn't that just too long? 

For a very good overview of the entire topic of juveniles in adult court, see "Prosecuting Juveniles in the Adult Criminal Justice System" by the Children's Action Alliance. For a good blog with plenty of information regarding sentencing, see the Life Sentences blog by Law Professor Michael O'Hear. 

I wrote before that I don't believe juries make mistakes.  Juries are very good, much better than judges, at figuring out what happened in a particular case.  In the vernacular of the judicial system, I would say juries are very good "triers of fact." American law is based on English common law, which has for hundreds of years divided the "trier of law" and the "trier of facts."  Judges figure out the law, while the jury figures out the facts. I think that distinction is a very good one, and most of the sentiment for eliminating jury trials is nothing more than anti-democratic elitism. 

Having said that though, the guilty verdict in the James Arthur Ray trial bothers me. Even though I have written quite a bit about the double standard of our legal system- what I call Prison Democracy- it seems that the exact reverse happened here.  I hope that it is not the case that Mr. Ray was only charged and convicted because he is famous, but with the weak evidence against him, I can't help but think that.  While I don't think famous or established persons should escape due punishment, I also don't think they should suffer from unwarranted accusations either. 

So did the jury make a mistake?  I never read the transcripts of the trial or saw any of it; so without more information I would say no.  But the verdict- criminally negligent homicide- could still be bad as a result of odd or incomplete facts.  The defense attorneys' for Mr. Ray claim that the verdict is a result of prosecutorial misconduct. (Arizona self-help guru deserves new trial in sweat lodge case): 

A self-help guru who was convicted in the deaths of three participants in an Arizona sweat lodge ceremony deserves a new trial...Ray's attorneys went before a Superior Court judge in Yavapai County, Arizona, claiming he should be tried again because of prosecutorial misconduct...[t]he defense claims the prosecution did not disclose evidence on time.

The defense's position since the deaths is that the adults who participated in this event knew full well the consequences and dangers they were facing, and that Mr. Ray never misled them.  In fact, it is in part because of those dangers that they wanted to be part of the sweat lodge.  Thus, this case seems to me the classic example of something that should be handled in our civil personal injury system, and not the criminal system. 

The United States Treasury and Obama Administration certainly do not like the fact that the bond rating agency S&P downgraded American bonds from AAA to AA, but did the S&P commit a crime?  What I am specifically referring to is a conspiracy to defraud the United States (18 USC 371): 

The general conspiracy statute, 18 U.S.C. § 371, creates an offense "[i]f two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose.

Under the United States Supreme Court cases Hass v. Henkel, 216 U.S. 462 (1910), and Hammerschmidt v. United States, 265 U.S. 182 (1924), "defraud" means: 

1) The statute is broad enough in its terms to include any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of government . . . (A)ny conspiracy which is calculated to obstruct or impair its efficiency and destroy the value of its operation and reports as fair, impartial and reasonably accurate, would be to defraud the United States by depriving it of its lawful right and duty of promulgating or diffusing the information so officially acquired in the way and at the time required by law or departmental regulation.

2) To conspire to defraud the United States means primarily to cheat the Government out of property or money, but it also means to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest. It is not necessary that the Government shall be subjected to property or pecuniary loss by the fraud, but only that its legitimate official action and purpose shall be defeated by misrepresentation, chicane or the overreaching of those charged with carrying out the governmental intention.

I have read that the S&P made a mistake when it downgraded American debt ("More Bad Beer From S&Ps David Beers" by Marshall Auerback). But the reason I think what the S&P did could very well be criminal is because they deliberately downgraded American bonds to gain credibility with investors.  They needed to regain credibility because: 

the S&P (along with Moody’s and Fitch) covered themselves with glory during the housing bubble, rating toxic subprime junk as AAA rated paper. Not only were the agencies politically corrupted by virtue of their incestuous ties to Wall Street, but criminally incompetent as well.

Thus, to reassert themselves as a credible debt rating agency, the S&P has obstructed government function (the selling of Treasury bonds) by trickery, namely publicly misstating the solvency of the United States.  My hope is that the Obama Justice Administration will realize that Wall Street fraud and white collar crime come in different shades, and this one by the S&P might be the most dangerous of them all.   For more details of the failure of the Justice Department to prosecute Wall Street fraud, see William K. Black of New Economic Perspectives.

By way of example, the Maricopa County Attorneys' Office has prosecuted and convicted many defendants for the class 4 felony fraud (ARS 13-2002 forgery) when the defendants have shown a police officer a fake driver's license.  The theory of the prosecution is that showing a fake driver's license to a police officer is fraud against the state because the defendant is impairing government function by way of trickery. 

A. A person commits forgery if, with intent to defraud, the person: 1. Falsely makes, completes or alters a written instrument; or 2. Knowingly possesses a forged instrument; or 3. Offers or presents, whether accepted or not, a forged instrument or one that contains false information. B. The possession of five or more forged instruments may give rise to an inference that the instruments are possessed with an intent to defraud.  C. Forgery is a class 4 felony, except that if the forged instrument is used in connection with the purchase, lease or renting of a dwelling that is used as a drop house, it is a class 3 felony. For the purposes of this subsection, "drop house" means property that is used to facilitate smuggling pursuant to section 13-2319.

P.S. (August 18, 2011) The Justice Department is investigating whether Standard and Poor's improperly rated dozens of mortgage securities in the years leading up to the financial crisis.  See "U.S. Inquiry Is Said to Focus on S.&P. Ratings" in the New York Times by Louise Story.

Imagine the following, it is 2004 and you are your 50s and a veteran from the US Army, and you get a job working for US Marines in Iraq as a translater.  You think to yourself "now I have opportunity to serve my country in a time of need." You are an American citizen, and while working as a translater, you uncover some important and valuable information from an Iraqi contact.

That Iraq contact is none other than Abdul-Sattar Abu Risha, the same man who fights Al-Qaida and a major figure in the Sunni Awakening.  Abdul-Sattar Abu Risha is such a thorn in the side of Al-Qaida that they assassinate him.  Then in in 2005, with no evidence whatsoever, Sec. of Defense Donald Rumsfeld orders that the United States military, the very same military sworn to uphold and protect the Constitution of the United States and protect American citizens from all threats, to capture and torture you.  You are perfectly willing to answer any questions so long as you have your lawyer or a representative from the Marine Corp with you. You are concerned about keeping your name and information secret so Al-Qaida will not target you or your family.

But Rumsfeld's goons refuse that simple request.  Instead (as reported in today's Arizona Republic "Judge allows American to sue Rumsfeld over torture"):

He says he refused to answer questions because of concern about confidentiality, and the agents handcuffed and blindfolded him, kicked him in the back and threatened to shoot him if he tried to escape. He was then transferred to an unidentified location for three days before being flown to Camp Cropper.For his first three months at Camp Cropper he says he was held incommunicado in solitary confinement with a hole in the ground for a toilet.

He says he was then moved to cells holding terrorist suspects hostile to the United States who were told about his work for the military, leading to physical attacks by his cellmates that left him in constant fear for his life. 

He claims guards tortured him by repeatedly choking him, exposing him to extreme cold and continuous artificial light, blindfolding and hooding him, waking him by banging on a door or slamming a window when he tried to sleep and blasting music into his cell at "intolerably loud volumes."

After he was abducted, the military did not inform his family of his status and they had no idea if he was even alive.  As a result of this episode, there is a lawsuit against Mr. Rumsfeld for torturing an American citizen.  The Obama administration, which is now defending Mr. Rumsfeld, claims that the lawsuit should not go forward because of, ironically enough, constitutional separation of powers.  The federal court hearing this matter has rejected that argument "U.S. District Judge James Gwin rejected those arguments and said U.S. citizens are protected by the Constitution at home or abroad during wartime."

Judge Gwin's ruling is wonderul news.  Let's hope the elitist neocons in position of power, particularly those who never bothered to serve like Richard Perle and Paul Wolfowitz, and who treat our military like a toy, get the message that our servicemen, women, and citizens deserve some respect. 

I just checked the Maricopa County Superior Court website to see if Arizona State Senator Lori Klein is facing felony charges.  According to the website, she is not.  So now the question remains, why not? According to a news story at Arizona Republic, she admitted to pointed to a loaded handgun at reporter Richard Ruelas.  On a recorded conversation, she laughs and casually mentions the fact the handgun has no safety and has a laser site.  With this sort of evidence,  I can't help but think the obvious, that if Ms. Klein the state senator was instead Mr. Smith the car mechanic, she would already have been indicted. 

Assault is defined under ARS 13-1203 and includes "[i]ntentionally placing another person in reasonable apprehension of imminent physical injury".  It is aggravated assault if the assault is committed with a deadly weapon or instrument (ARS 13-1204).  Deadly weapon includes an unloaded firearm. 

Endangerment, ARS 13-1201, is:

A. A person commits endangerment by recklessly endangering another person with a substantial risk of imminent death or physical injury 

B. Endangerment involving a substantial risk of imminent death is a class 6 felony.

The fact that Mr. Ruelas does not want the state to prosecute her is completely irrelevant.  In a criminal proceeding, the victim is the not the one to decide who the state will and will not prosecute. The victim is only a witness, not a party or litigant. 

And as far as "no harm, no foul"- no one was hurt so why prosecute her- that is completely irrelevant as well. I can't imagine someone stopped for drunk driving convincing a jury that he should not prosecuted because no one was hurt. And a loaded gun, even if unintentional with no ill will, is just as dangerous, if not more so, than a drunk driver.  I have seen many cases in which DUI defendants have been charged with felony endangerment for the risk they posed to other drivers, even if no one was actually hurt. 

More to the point, there is harm even if Mr. Ruelas was not himself hurt.  What about the person, and there has been plenty of publicity in this matter, who notices the fact Ms. Klein is not prosecuted and then decides there is nothing wrong with casually mishandling a firearm, and then someone is hurt as a result? The Arizona laws on firearms, just like FAA regulations, were written in blood.  And to ignore them because nothing bad may have happened this time, especially in a publicized case, puts people in danger. It seems both Mr. Ruelas and the authorities have forgotten that the law is not just to punish past crimes, but to prevent future ones as well.  And as I wrote with regard to the Susan Brock mess (Susan Brock Gets 13 Years: Arizona Sex Crimes Sentencing Part Two), the bigger the issue, the stronger message our criminal justice system must send. 

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Before the Diamondbacks came in existence, I, like seemingly all of my friends, was a New York Yankees fan. And I remember quite well when Hideki Irabu came to the Yankees.  He dominated the Japanese Major League, the same league that gave MLB Ichiro Suzuki.  Irabu was supposed to have the fastball of Nolan Ryan and the split finger fastball of Mike Scott.  In short, he was the Japanese version of Roger Clemens.  

His career came and went, without the Cy Young Awards, and I soon forgot about him and the my loyalty to the Yankees switched to Arizona.  I had not heard his name in a few years, until sadly yesterday, I read online that he died from a suicide.  I also read that he had a DUI, not an Arizona DUI but in California.  

Now I can't help but think that DUI case, even though it was a misdemeanor and even though it seems in California jail time is not automatic, may have contributed to his emotional problems.  And that mere possibility is why I think it would be a great shame to eliminate the right to a jury trial for even a first-time non-extreme DUI. A DUI charge, particularly an Arizona DUI charge, is not like any other allegation.   A DUI conviction is a stigma that weighs heavily.  It implies that someone is a social outcast, a drunk, and is so selfish and dysfunctional that he is willing to risk the lives of friends and neighbors for no good reason.   

The Arizona Supreme Court used to recognize these points and there was constitutional protection.  The constitutional basis for a right to a jury trial in all DUI cases used to be an Arizona Supreme Court decision called Rothweiler v. Superior Court, 100 Ariz. 37 (1966).  In that case, the Supreme Court decided on a three part test to determine which crimes warranted a jury trial. 

1) Is the defendant exposed to a severe penalty in which the exposure exceeds six months imprisonment or $1000 in fines?

2) Does the act involve moral turpitude? 

3) Has the crime traditionally merited a jury trial? 

But that may have changed with the 2005 Arizona Supreme Court decision called Derendal v. Griffith, 209 Ariz. 416 (2005). I used the "may" because the 5000 word decision does not specifically address the right to a jury trial for misdemeanor DUIs.  Despite the still seemingly unresolved issue of  the constitutional right to a jury trial in all DUI cases, there was a statutory right in ARS 28-1381(F), which read: 

F. At the arraignment, the court shall inform the defendant that the defendant may request a trial by jury and that the request, if made, shall be granted. 

But what the legislature gives, it can take away.  And that is exactly what has happened with the new law. What a shame.   Please see my interview with Nicole Crites of CBS KPHO channel 5 regarding this topic. 

Arizona DUI laws just changed.  As Alia Beard Rau reports in today's Arizona Republic: 

One of the session's most debated new public-safety laws was a DUI bill Gray sponsored that, among other things, decreases the amount of time a first-time DUI offender must use an ignition-interlock device to six months from a year. This law has a delayed effective date and doesn't start until the end of the year.

Another DUI law, which takes effect Wednesday, requires courts to allow first- and second-time DUI offenders to attend work or school while serving their jail sentence.

The real importance of the law changing the interlock device requirement from one year to six months is that penalty reduction was the rational for a much more drastic change in Arizona's DUI criminal procedure, the elimination for a right to a jury trial for a first time misdemeanor DUI.   Arizona legislatures claimed that because the penalties for a first DUI conviction would be less severe, there is no need for a jury trial in such circumstances.  As Rep. Gray stated, “The only reason you need a jury trial is if you’re going to jail", and now with the DUI law changes, according to Rep. Gray, there is no requirement for jail time.

After the Arizona legislature removed the right to a jury trial for a first time DUI, there was a drive to place that issue on the next ballot.  However, that ballot drive initiative has failed.  As Harper MacNeill of KPHO Channel 5 Reports: 

A referendum to block a new Arizona law that would have eliminated the current right to a jury trial for defendants charged with first-time regular DUI, has fallen short of the required 86,405 signatures to suspend implementation of the law pending a public vote.

Now, the only hope for maintaining the right to a jury trial for first time misdemeanor DUI would be constitutional challenge.  That constitutional challenge is based on the argument that the legislature does not have free reign to decide which crimes get a jury trial and which do not.  

My own hope is that there will always be a right to a jury trial for DUI cases, even if it is a first time misdemeanor.  There is no dispute, even among most pro-prosecution advocates, that the right to a jury trial is inviolate for all felonies. That is the case even if jail or prison time is unlikely in many felonies, because the stigma of any felony conviction is so great.  My belief is that the stigma, and professional consequences, of a first time misdemeanor Arizona DUI conviction are just as severe as many felonies, and thus, the right to a jury trial should remain intact. 

When I was in elementary school, I remember vividly the scene in First Blood when Rambo breaks down and confesses how much difficulty he has dealing with post-traumatic stress syndrome (PTSD), and can't hold a simple job or live a normal life.  I also remember thinking how our nation could let something like that happen to its veterans.  

But things have not gotten much better and one consequence of America's wars in both Iraq and Afghanistan is when veterans come home, many are having great difficulty adjusting back to civilian life.   From the US Department of Veteran's Affairs: 

Research shows that aggressive behavior is more common in those with PTSD than those without PTSD. For example, in one study, male Vietnam Veterans with PTSD committed more acts of violence against family and others than Veterans without PTSD. Also, rates of PTSD in prison inmates are higher than in the general public.

While some cynics say anyone who claims PTSD is malingering or is trying to get benefits (see PTSD and the Vet), there is very good reason to think PTSD is real and that but for PTSD or viable treatment, these veterans would not be in the criminal justice system. 

I personally have spoken to combat veterans who upon return to civilian life, have been accused of various crimes. Unfortunately for them and all of us, the law does little to help veterans suffering from PTSD if it does not rise to the level of mental illness.   And my experience is that so far, prosecutors don't really care if a veteran accused of a crime is suffering from PTSD.   One way to change that would be for Arizona to adopt Veteran PTSD legislation like Minnesota is considering: 

The legislation would require the courts to determine whether a criminal defendant is a veteran. With military service established, the defense attorney could then order a psychological assessment...  If the veteran is diagnosed with a mental illness, the court will be made aware of possible therapy programs available through the Department of Veterans Affairs, and treatment can be considered during sentencing

For more information on this story, the pending Minnesota legislation, and former Marine Tony Klecker see "Crime and PTSD: Pending legislation would help veterans get treatment instead of prison time" by Beth Walton. 

For anyone who is concerned about how Arizona treats its veterans, please contact your local senator, representative, and the governor's office so that Arizona can adopt legislation in line with the Minnesota bill. 

For an interesting article concerning diagnosing PTSD for veterans, see PTSD's Diagnostic Trap by Sally Satel of the American Enterprise Institute. 

It seems that Arizona politicians can't help but make Arizona look bad, and in the process, expose the little secret fact that if you wealthy and privileged, the law does not come down on you so hard.

As reported by Howard Fischer of the East Valley Tribune, Arizona Republic reporter Richard Ruelas claims Arizona Senator Lori Klein pointed a handgun at him. She denies that it was intentional. 

A first-term state lawmaker denied Monday she deliberately pointed a loaded gun at a newspaper reporter during an interview at the state Senate.

Sen. Lori Klein, R-Anthem, admitted in a statement she took her .380 Ruger out of its carrying case during an interview last month with Arizona Republic reporter Richard Ruelas in the lounge outside the Senate chamber. But Klein, who refused to comment, instead issued a statement saying that was done for the benefit of the photographer who wanted to see the gun and the laser sight -- and that Ruelas sat down in the path of the laser.

Regardless of the fact Mrs. Klein has denied that she deliberately pointed the weapon at Mr. Ruelas, there seems to be enough to start an police investigation into the matter, in particular considering the harm a handgun can cause.  

I know when I was taught basic firearm safety in the Marine Corp, we were told- the first rule of firearm safety- never, ever point a weapon at a person unless they are the enemy in battle.  If you do not follow that basic rule, something like what James King of the Phoenix New Times can happen:

The senator might be interested to know that sometimes guns do things when they're pointed at people -- for example, they can go off. Enter Jordan McGrath, 28, charged with manslaughter after blowing his friend's brains out, apparently accidentally.

As reported in the Arizona Republic, it seems rank has its benefits, and the Arizona Senate will not investigate Mrs. Klein.  "The chairman of the Arizona Senate's ethics committee [Democratic Sen. Steve Gallardo] says he doesn't plan any action regarding a fellow lawmaker who has acknowledged pointing her gun at a newspaper reporter during an interview."  

If police decided to take up the matter, the Maricopa County Attorney could charge her with Aggravated Assault with a Deadly Weapon, and allege the crime as dangerous.  That would mean if convicted, she would be going to the Arizona Department of Corrections even if it is a first offense. 

Interestly, there is now a Facebook page titled "Charge Arizona Senator Lori Klein with Aggravated Assault".  

In a recent news story by KPHO Channel 5 Phoenix, Reporter Peter Busch reports that a detective with the Professional Standards claims Phoenix Police has failed to properly investigate hundreds of viable sex crimes cases.  

Dana Lindsey, a detective with the Professional Standards Bureau... said the department has failed for years to address an "excessive number of open cases" within the Child Crimes Squad.

According to detective Lindsey, there are about 587 open cases that Phoenix Police has failed to properly investigate.  One detective in particular has gained Det. Lindsey's ire, "Lindsey points out that one detective, Alan MacIver, had 116 cases that had been open for more than 30 days".  This story comes on the heels of other major embarrassments by Arizona law enforcement.  There was a recent story on how the Maricopa County Sheriff's Office has failed to properly investigate numerous violent and sex crimes in El Mirage, and even more disturbing, how rogue Phoenix Police officers may have killed one of their own officers, Sgt. Sean Drenth, in an attempt to cover up Phoenix Police corruption.  

Of course, there is also the notorious Youtube video in which a uniformed Phoenix Police Officer tackles a 15 year old girl, as reported by Michelle Ye Hee Lee of the Arizona Republic:  

Patrick Larrison, a six-year member of the force, has been put on administrative leave pending criminal and internal investigations... An officer [Larrison] responding to the scene approaches her from behind as she is walking, shoves her into a wall and knocks her off her feet.

The worst part of the youtube attack video is that there was another office on the scene who did not report the attack, and it only came to the attention of the Phoenix Police because the video was posted anonymously on youtube three months later. Despite that point, Phoenix Police held a press conference where they had the insensitivity to claim they did not want to the public to think professional misconduct is only punished if exposed publicity.  

[Phoenix Police Spokesman] Sgt. Trent Crump: “What we do not want is for people to find it online and think that is the normal course of business for the Phoenix Police Department,”

Yet that is exactly what happened.  As I have stated before, it may be time for a civilian police commission to oversee the Phoenix Police department.   History points out that in a democracy, when our civil servants fail us, the best solution is democratic oversight.  And I can't imagine a better way to ensure that democratic oversight than to have the Phoenix Police department supervised by members of the community. 

Regardless of which side one may belong to on the political spectrum, conservative, liberal, socialist, or moderate, every politician can agree on certain points.  The nation should be secure from foreign threats, the economy should grow, and sex trafficking is evil.  Certainly, I would hope no serious politician would disagree with any of those points.  But like any other political issue, once you have defined the problem, there could be debate about how serious the problem actually is. 

When it comes to sex trafficking, that is a problem that comes up in underdeveloped nations like in South Eastern Europe and Africa, right? Wrong, according to the Schapiro Group and Deborah Richardson, the chief program officer of the Women's Funding Network.

"An independent tracking study released today by the Women's Funding Network shows that over the past six months, the number of underage girls trafficked online has risen exponentially in three diverse states," Richardson claimed. "Michigan: a 39.2 percent increase; New York: a 20.7 percent increase; and Minnesota: a staggering 64.7 percent increase.

That story made a lot of news across the nation.  Of course, one could see why when the obvious implication of the study is that the number of underage prostitutes, and the business of underage prostitution is expanding exponentially.   This major study comes on the heels of the recent craigslist debacle in which attorneys general from across the United States forced the online classified site to remove its infamous sex ads.

But there could be serious methodological problems with the Schapiro study; that is, there is very good reason to think that is not good science, but even worse, junk science.  Bad science is science flawed because of poor methodology.  Junk science is that, but with a political motive behind the flaws.  It could also be neither bad science or junk science, just not science at all.  In other words, the reputed flaws of the study might not based on a particular bias, but just on the fact science cannot extend readily to sociological issue. That is what critics like Nassim Taleb refer to scientism, or comically, as "physics envy".   For more details on the Schapiro study and its flaws, see this article in the Phoenix New Times from writer Nick Pinto. 

The fact there is every reason to think sociology and science do not readily mix is even more reason why I hope Arizona state courts soon adopt the Daubert standard for scientific evidence, particularly in sex crimes prosecutions. 

Neither the media or the population in general have a very fond image of attorneys.  Sure, attorneys who work for the government, like prosecutors and judges, seem to have a decent image, but attorneys who represent consumers- divorce, criminal, personal injury, bankruptcy, and criminal lawyers primarly- have a rating lower than used car salesmen.  Of major professions, only stockbrokers are thought of lower than attorneys.   That is very sad considering the amount of money and school one must invest in becoming a lawyer.  

Of course, a lot of that public derision is well deserved.  Cheesy used car salesman like sales tactics and overly aggressive trial attorneys do damage to the bar's public image, as does the idea of rich, well established deep carpet firms making millions for work that is largely non-productive and of little social value. 

Now it seems lawyers will be thought of even less, for committing simple violent crime.  Daniel Gukeisen, the founder of the Arizona and Nevada bankruptcy "want a fresh start" practice is going to prison for killing a ASU student. According to the Arizona Republic, he received a 5 year prison sentence from Judge Cari Harrison. Gukeisen was found guilty in April for stabbing Arizona State University student Garret Hohn after an argument broke out between the two in front of Gukeisen's Tempe townhouse in September 2009.

Even though the state charged Mr. Gukeisen with manslaughter for killing Mr. Hohn, the state did not allege the crime as "dangerous".   The fact the crime was not technically dangerous meant that he was eligible for probation and is still eligible for 85% time in the Arizona Department of Corrections.  If he had been convicted of a dangerous offense, he would not be eligible for probation and he would have to serve 100% of his sentence. 

While seems some of the derision that lawyers get is undeserved, from what I could tell of the facts of this case, Mr. Gukeisen is lucky to be only going to prison for 5 years.  If the facts were identical with the only difference Mr. Gukeisen was a bar tender or car mechanic instead of a wealthy attorney, I would not have been surprised if he was charged with murder instead of manslaughter and his sentence was over 20 years. 

One would think that an immigrant chambermaid from West Africa would gain, if not outright sympathy, at least some privacy for her seemingly justified accusations against one of the most self-entitled men on Earth.  From what few facts we have before us, she was only doing her job. Unfortunately, that thought is a wasted one.  

Instead of decency, NY Post reporters Jennifer Bain and Bob Fredericks thought it appropriate to write a story in which they glibly claim "Dominique Strauss-Kahn may have more to worry about than a possible prison sentence."  

That callous comment is justified, according to these reporters, because apparently, Mr. Strauss-Kahn's accuser is an AIDS patient. 

The IMF chief's alleged sex-assault victim lives in a Bronx apartment rented exclusively for adults with HIV or AIDS, The Post has learned.  The hotel maid, a West African immigrant, has occupied the fourth-floor High Bridge pad with her 15-year-old daughter since January -- and before that, lived in another Bronx apartment set aside by Harlem Community AIDS United strictly for adults with the virus and their families.

Almost as bad as these cheap accusations against the accuser is the media's glorification of Mr. Strauss-Kahn as the "great seducer." While not explicit, the point of the story is that because she is a West African immigrant with AIDS, and because Mr. Strauss-Kahn is a very wealthy Casanova, she must be a whore-in-fact who is exploiting the innocent ubermensch.   It seems as if the media has reverted back to the Stone Age, where established men are entitled to have sex with benighted females.  And if the female dare resist, she will be vilified. 

Even though I am a criminal defense attorney and it is a honor and a privilege for me to represent people accused of crimes, I believe the entire process should be dignified for both the victim and accused.  I do not know if Mr. Strauss-Kahn is guilty or not, or if his accuser is telling the truth or not.  But at first blush, her version of events seem plausible.  That is enough, in my eyes, to let her live with some dignity while the case is pending. My job as a criminal defense lawyer does not require me to be an idiot or to be mean spirited.  

The only basis of the NY Post story is sexism, racism, and elitism.  That was not a single fact in the entire NY Post story disproving the evidence against him.   Having made that point, if I were representing Mr. Strauss-Kahn, I would beg the media to stop calling him the great seducer and stop accusing the accuser of promiscuity.  The NY Post piece and similar stories will only turn the jury pool against him. 

Fortunately, the law has progressed ahead of tabloid media.  In Arizona, which modeled its rules of evidence on the federal rules of evidence, the sexual history of the victim is generally not admissible.  

There is a saying that reality is sometimes stranger than fiction, and in the case of the death of Phoenix Police Sgt. Sean Drenth, that could very well be true.  According to AZ Family Channel 3 reporter Kristine Harrington, there could be a connection between Sgt. Drenth's death and the allegedly false overtime South Mountain Police case.

They're in trouble for allegedly lying about off-duty work they did not perform. The dead officer was under investigation for the same charges and questions about how and why he died have haunted the officers for months. 

While Ms. Harrington does not explicitly address the issue in this article, she hints that Sgt. Drenth might have been murdered for his part in the fraudulent overtime case: 

Drenth was found dead in his uniform, killed with his own shotgun while on-duty. Police and the medical examiner have yet to determine whether his death was a murder or a suicide.

On top of the fact that whoever killed Sgt. Drenth used his shotgun, Sgt. Drenth's GPS tracking device was apparently turned off.  The following is from Christopher's Sign's article from ABC 15. 

The GPS system can show dispatchers the location of each patrol car, but [Phoenix Police Spokesmen] Crump declined to answer questions if the system was used or even working during the search for Drenth.  "I'm not going to talk about the sergeant's GPS and the tracking of that at this point," Crump said during a news conference Tuesday.

One of the things that points to a methodical hit is the fact that the crime scene had very few clues: 

Those close to the investigation say numerous security cameras in the area did not capture the shooting incident and haven't provided many clues in the case. "It's a tough, tough, tough crime scene at this point," Crump said.  Crump told The Associated Press investigators obtained surveillance video of the scene but it has not been useful in explaining what happened.

From what the Phoenix Police Department have released so far to the public, it is far too soon to tell what happened to Sgt. Drenth and if his death is related to police corruption.  Having said that, the fact that the investigation is slow does not necessarily mean it is methodical or will be adequate once finished. Not just because of this case, but because of poor behavior by Phoenix Police Officers in general, it may be time Phoenix considered a civilian police commission to oversee the Phoenix Police Department.  

Just recently Arizona banned the sale of synthetic marijuana, or as it is commonly know, spice, in Arizona. The reason spice was banned was that it was being used as an drug to get high.  After the sale of spice was falling, it is picking back up again.  That is because many of the retail sellers of spice have changed the ingredients, which makes it legal, but the high remains.  

According to Tim Vetscher of KNXV Channel 15 ABC Phoenix: 

Sold as herbal incense in most head shops, people who smoke Spice say it gives them a high similar to marijuana.

"I think sometimes people think making something illegal makes it extinct but it doesn't," said Shelly Mowery, Deputy Director for Drug Free AZ.

As with other laws, the first try at making something illegal does not always succeed. 

"You always see a circumvention of the law." Mowrey says manufacturers have changed some of the ingredients in Spice. Because of those changes, stores can legally sell Spice once again.

"It's just as dangerous as before and can have the same impact on your child," Mowery said.

Because there appears to be a loophole in Arizona's synthetic marijuana law:

The author of the original bill, Rep. Amanda Reeve, tells ABC15 she'll introduce legislation to ban the new Spice versions. That, however, won't happen until next year when the legislature convenes for the 2012 session.

One thing to note is that under federal Drug Enforcement Agency regulations spice became illegal nationwide on March 1 when the federal Drug Enforcement Agency used its emergency powers to list five components in synthetic marijuana as Schedule I drugs.  Thus, while there is no federal statute making spice illegal per se, the DEA has effectively done that by itself through its rule making procedure. 

Ten years ago, my aunt came from Germany to visit my parents.  The only American she, and it appears her fellow Germans knew anything about was Joe Arpaio.  She had no idea that Phoenix had no beaches, but she did know that Sheriff Joe ran tent city.   In her mind, Sheriff Joe was everything that Europeans thought Americans were: serious, pragmatic, and decisive.  What she did not know, and still probably does not, is that some Americans can also be narcissistic.

In a recent edition of the Phoenix New Times, Ray Stern has a very good article on Sheriff's Arpiao's handling, or lack of handling, of his subordinate Dave Hendershott.  Among other things, Mr. Hendershot lied about ordering the arrest of two Phoenix New Times reporters:

Hendershott had told Arpaio that lawyer Dennis Wilenchik had ordered the arrests of New Times execs Michael Lacey and Jim Larkin, according to witnesses including Arpaio's spokeswoman, Lisa Allen. Hendershott later signed a sworn affidavit that he'd ordered the arrests personally.

It seems Hendershott was not above common theivery: 

In one of the worst rips on Hendershott, Babeu's investigator [independent investigator of MCSO] found that Hendy ripped off $18,000 in posse funds and used them to sponsor a competitive baseball team on which his son played, as well as a week-long trip in Alaska for him and his wife.

If this allegation is in fact true, and if he is not prosecuted, then that is our failing, not Arpaio's.  That men in power will abuse their authority is a given, but it is up to legitimate authority to prosecute them if they do so. Every day common Americans face prison for much less.  And I have defended people facing felony charges for much less, people who were just trying to get by day to day.  Hendershott is not an ordinary American just living his life. "His annual salary was at least $177,000 a year, plus he receives an annual pension of $63,000 from his first tour of duty with the county", reported Lisa Leigh Kelly of KPHO. 

Please read the rest of Mr. Stern's and Mrs. Kelly's articles for more specific details and examples.  While I don't want to resort to pop-culture cliches, I cannot resist to the obvious comparison in that Hendershott seems to be Liddy to Arpaio's Nixon.   Arpaio seems to think he is untouchable; he should remember that Nixon thought the exact same thing in 1972.  

The UPI had a recent story in which they reported the US Navy is concerned about synthetic marijuana or spice. 

The U.S. Navy says it's concerned about widespread and increasing use of a synthetic drug known as Spice. A release written by two psychiatry residents at the San Diego Naval Medical Center said the facility treated 15 service members between August and December 2010 for Spice-related problems, The San Diego Union-Tribune reported Tuesday. Problems associated with Spice include hallucinations, paranoia and debilitating confusion, often lasting for days, the doctors said.

The Navy is so concerned about synthetic marijuana that they have even discharged sailors on active duty:

In July 2009, 15 Sailors aboard the aircraft carrier George Washington were discharged for Spice use, leading to a Navy-wide ban on the drug in March 2010. Seven students using Spice were discharged from the U.S. Naval Academy in January. The drug, sometimes referred to as fake marijuana, was legally available in head shops and other establishments until March 1, when the U.S. Drug Enforcement Administration named it a controlled substance in an emergency action also affecting civilians.

I had a recent post on how Arizona has banned the sale of synthetic marijuana, and why it's a problem for civilians.  It now seems that there is a national trend, and that both federal and state agencies, as well as the military, will be prosecuting synthetic marijuana as stringently as real marijuana, if not even more stringently.  

What exactly is "sexting"? Here is a good explanation from clutchmagonline: 

According to a recent survey on the parental control website parentalcontrolapps.com of all teens are sexting; 22% of girls and 18% of boys. Sexting includes sending and receiving sexual photos and text messages. It’s sex and written text colliding in a technology driven society and dubbed “sexting” that has young people moving into fast paced relationships that leave little left to the imagination.

Sexting has caught the attention of politicians: 

With sexting on the rise, parents, school officials, law enforcement agencies and legislators are scrambling to deal with the issue. Nationwide, teens have been arrested and charged with possession of child pornography for having copies of the lewd photos on their cell phones and computers.

While the State of New York is considering legislation, Arizona already has strict laws against sexting.  In particular Arizona Revised Statute, 13-3553. Sexual exploitation of a minor:

A. A person commits sexual exploitation of a minor by knowingly:

1. Recording, filming, photographing, developing or duplicating any visual depiction in which a minor is engaged in exploitive exhibition or other sexual conduct.

2. Distributing, transporting, exhibiting, receiving, selling, purchasing, electronically transmitting, possessing or exchanging any visual depiction in which a minor is engaged in exploitive exhibition or other sexual conduct.

B. If any visual depiction of sexual exploitation of a minor is admitted into evidence, the court shall seal that evidence at the conclusion of any grand jury proceeding, hearing or trial.

C. Sexual exploitation of a minor is a class 2 felony and if the minor is under fifteen years of age it is punishable pursuant to section 13-705.

ARS 13-705 has a presumptive sentence of 17 years in custody flat time. 

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Niki D'Andrea of the Phoenix New Times has a very interesting article concerning Arizona's new medical marijuana law.  

Get a card, and you can buy, possess, and use up to 2.5 ounces of marijuana every two weeks — or grow up to 12 plants. Follow the law, and cops can't arrest you, landlords can't discriminate against you, and employers can't penalize you (unless you're high on the job).

The card that Mrs. D'Andrea is referring to is the card that "the Arizona Department of Health Services will begin accepting applications for medical marijuana patient and caregiver cards. The ADHS will review and approve or deny each application within 10 business days."

Of course, this law changes things quite dramatically from the previous state of affairs in Arizona. Previously, regardless of what your doctor may have thought of your medical condition, possessing marijuana, even for personal use, was a felony.   Of course, even now, if you do not follow proper procedure, you could still be charged with a felony even if you have valid medical reason for possessing marijuana. 

While the prosecutor's office always had the right to charge marijuana possession as a felony, Arizona had quite progressive laws in general regarding drug possession.  For example, unlike almost every other state in the United States, Arizona voters passed Proposition 200 and 302.  Those laws required any person convicted of drug possession for personal use, even for a second offense, to get probation so long as they met certain requirements.  Those requirement include not having more than one drug conviction, no violent history, and they are willing to accept drug treatment as a condition of probation. 

I can't help but think this is good news.  The stories of jails overcrowding is well known, but even more to the point, I would hate the idea of young person or sick person having a drug possession felony on their record for the rest of their life because they had some marijuana on them.  I don't think drugs should be legal, but we should not treat all the drugs the same.  Marijuana is no where near remotely as destructive or dangerous as methamphetamine, yet before the new medical marijuana law, Arizona essentially treated them the same. 

Gary F. Dunham Jr.is the principal of Alliance Bail Bonds LLC in Mesa, Arizona.  He has kindly agreed to answer the following questions, which I get asked all the time, about bonding out of custody from an Arizona jail.

If a family member is out the state and cannot come to Arizona, can you help them bond a friend or family member out of an Arizona Jail?  

If someone is out of state and cannot come to Arizona, they are able to post a bond via telephone and fax/email using either a credit/debit card, wire transfer or a piece of property. If someone calls us collect from the jail, we are able to gather the information they provide to us, contact their family/friends for them and arrange a bail bond. Once arranged, then we can post a bond to get the defendant released from custody.

If the judge orders “cash only” bond, what does that mean? 

Cash Only means that the jail will accept only "Cash Money" as a form of payment to secure a defendant's release from custody. Not a paper bond. "Cash or Bond" means that the jail will accept either a "Paper Bond" or "Cash Money" as a form of payment to secure a defendant's release from custody. Both can be considered appearance bonds unless the "Cash Only" designation is for unpaid fines, in which case the "Cash Money" paid to secure the defendant’s release from custody is likely to be applied to the unpaid fine amount by the court. 

How does the bail bonds process work? In other words, let’s say someone has a $30,000 secured bond, and a family members wants to get him out but they do not have $30,000 on hand, what would should they do? 

The first thing to do is to contact a reputable Bail Bond Company to arrange the bond.  In this example of a $30,000.00 bond the required in accordance with the law is to secure collateral (Something that has a value of $30,000.00 or more) that the Bond Company could hold in their possession or attach a lien to.  The Bond Company will also charge as their fee for posting the bond 10% of the bond plus expenses. ($3,000.00 + expenses) Expenses vary and are mostly related to costs of lien attachments, notarization of documents and time of day the bond is posted, although Bond Companies fees can vary. 

A lot of people assume that if a bond is secured, they can get out by only paying 10% of the bond amount and no other property or cash is require. Is that correct? 

That is a common misconception. If you contract with a Bail Bond Company the fee govened by law is 10% of the bond + expenses. But collateral is required on all bonds posted in the State of Arizona.

Do you handle all the court paperwork once someone hires your company as far as filing with the court? 

Yes, we produce all the court required documents necessary to secure the release from custody of a criminal defendant after we are contracted with.

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Mr. Solomon Kanu is a well-established immigration and criminal defense lawyer in Phoenix, Az.  He has graciously agreed to an interview regarding the overlap between criminal law and immigration law. 

Mr. Kanu:

1) If someone is charged with a misdemeanor, for example a DUI or assault, and they are not a US citizen, should they be concerned about ICE or possible deportation?

Oh yes. Even long term permanent residents can be put in Removal proceedings because of some criminal conviction that is as simple as DUI. Many times when a non-citizen is booked into a jail, ICE is notified and they can place an Immigration detainer (hold) on the defendant making it imperative that even if he or she bonds out of the jail, ICE picks them up. It is important to consult with an immigration lawyer with criminal defense knowledge or have your criminal defense lawyer retain an immigration lawyer for you right away.

2) What if someone is not a US citizen and they are convicted of a felony, will they automatically be deported?

No. It depends on the offense and other factors of the conviction. Even then, there are several forms of relief that may be available.

3) What should a person who is facing criminal charges, for example, they are in custody in the county jail, do if an ICE agent asks to speak with them?  Can they invoke Miranda rights and refuse to talk to an ICE agent?  Is there anything in immigration proceedings similar to a suspect's Miranda rights in a criminal matter? Does someone have the absolute right to consult with an attorney during an ICE investigation as they would in a criminal investigation?

They can refuse to speak and ask that their lawyer be present in any interview with ICE. Whatever information they give then remains a permanent record in their immigration file.

4) When should a person be concerned about his immigration status?  If ICE has put a hold on someone while they are in custody for a criminal matter, can they bond out? And what does the immigration court consider when determining release conditions?    

A person should be concerned about their immigration status before they get into any trouble at all. If they are in jail already and ICE puts a hold it means that bonding out is to be released to ICE. It is sometimes risky because they may not be able to attend the next court hearing with the criminal court if they are detained in the Immigration Detention Centers in Eloy, Florence etc.

5) How has Arizona's recent law on immigration, SB 1070, changed how you practice law?

I don’t think it has changed anything.

6) If you could tell a person who is facing criminal charges and is not a US citizen one thing, what would that be?

Do not take any chances or take any pleas until you have been advised of the possible immigration consequences of the offense/conviction.

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The incarceration rate in the United States is astounding.  We, as a nation, incarcerate a greater proportion of our population, the per capita incarceration rate, than any other industrialized nation on Earth.  Number two on that list is Russia, which incarcerates about 40% less of the population than we do.  We have an incarceration rate about 10 times higher than Wales.   So, why is that? Is it because Americans are too free and can't control themselves, is it the easy availability of guns, is it poverty, or it something else? And once we identify the problem, how do we solve it? Fewer guns, higher literacy, more jobs, and less freedom?

I believe one of the major problems we have is that other nations don't  have a convoluted and indulgent criminal procedure system that does more harm than good.   As far as poverty, David Harvey makes the critical point poverty has created pressure on the permanently poor to escape their lot.

How can we reduce crime? The short answer is social equality, including legal equality. The basic point is that disparity in status is the problem while social equality is the solution. Marx was wrong when he wrote the fundamental commodity in society is labor and that primary movement is class conflict. In reality, the primary movement is promoting a genetic legacy.

We, human beings, are no different from elephant seals or any other animal. We are driven by our primal urge to replicate. What all that means is that a large number of single, unmarried men is an aggravating force, while a low number of single, unmarried men is a civilizing force.

I believe the much touted civilizing power of religion, in particular Christianity, is that it tends to equalize the sexual opportunity between high and low status males, thereby decreasing violence. Before getting into the details, I want anyone who reads the following to know I am no Marxist or Communist. I am a firm believer that the two party system and the middle class are what made America the greatest country on Earth, and as soon as we lose sight of that fact we are doomed.

First a couple of assumptions. The first assumption: all else being equal, for any given women, any women will be indifferent between any two partners so long as utility is the same. In other words, if a woman could chose to be the sole partner A and thereby receive x amount of utility, or be the nth partner of partner B and thereby receive x amount of utility, she will choose partner A 50% of the time and partner B 50% of the time. Second assumption: all else being equal and for any given man, he will always choose to add an additional female partner so long as there is any additional utility. That assumption is provable by the simple fact men are physically larger, which is the result of the fact that evolutionary speaking, naturally selection gave larger men more access to females.

The reason this is important is because in a polygamist society females will congregate to high status males and thereby leave the vast majority of men single. These single males will be a strong, violent force in society. Thus historically, monogamy has favored the vast majority of men, but disfavored females and high status males. And when low status males finally achieved political power they are the ones who voted to create a monogamous society, which was at the expense of high status males and females. Monogamy disfavors high status males because they will have smaller or no harems, and women are disfavored in monogamous societies because they cannot congregate to high status males. But the net result is good for society because there will be fewer single, unmarried, and violent men. God help China, and us all, when their policy of selectively aborting females comes to fruition.

Second, according to Marx, the traditional interpretation of the Protestant Reformation is incorrect. The traditional narrative is that the populace in Western Europe was subjugated by the Roman Catholic Church, and this subjugation led to a revolt against the the Roman Church. This revolt is the Protestant Reformation, and according to the traditional narrative, it marked a increase in the rights of the common people against the establishment, and the motivation for the Reformation was a drive for personal and religious freedom.

Marxists, on the other hand, believe that this narrative is fiction, and what really happened was the establishment and the elites consolidated their power by way of the Reformation. According to Marxists, the story of the common people revolting against Rome is a fiction the establishment uses to create even more power for themselves. What really happened, is the powerful commercial class resented the trade and commercial restrictions that the Vatican imposed on them. To increase their own power and make more money, the commercial class used religious freedom as a pretext to eliminate Vatican control over their businesses enterprises. The net result was increased commercial opportunity and more wealth, under the guise of increasing religious freedom. In other words, the Protestant Reformation was nothing more than the commercial class’ first, and successful, attempt at neoliberalism and globalism. For a first class exposition of this point, please see “The Philosopher’s Toolkit” by Baggini and Fosl.

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