But I’m not a fan of knee jerk reactions: I work through it.  There are prosecutors  — admittedly few in number — with whom I’ve had direct contact whom I’ve found to be quite honorable and whom I’d love to count among my short list of close friends, if the opportunity to do so ever arose.

One I have never had direct contact with is prosecutor Mark Pryor of D.A. Confidential. Yet, like criminal defense attorney Jamison Koehler, I am (mostly!) reassured by what I read on Mark’s blog.

There’s been a lot written lately regarding the recent United States Supreme Court ruling in Padilla v. Kentucky. The case concerns the intersection of criminal defense and immigration law.  This is an area where, as all the attorneys who discuss it note (see Koehler’s post not only for what he has to say, but for a good list of others writing on the issue), criminal defense attorneys have not had a stellar record of performance.

The population of undocumented persons living in the United States (i.e., non-citizens who have not gone through the normal channels to get here, or who have overstayed their welcome, so to speak) is approximately 10 or 11 million as of 2006.  Fresno, California, where I have my criminal defense law office, has a very high number of people whose country of origin is Mexico, some of whom are indocumentado (undocumented), so I learned early on to make inquiries.  I even took the step of purchasing Immigration Law and Crimes, which is not only an incredibly dense read, but makes a great sledgehammer — which is probably why it was so expensive.  While I am nowhere near an expert on immigration law (and don’t, even for a heartbeat, wish to claim otherwise), I have done some reading in the area.  But there is a lot to learn.

“Well, what’s that got to do with Mark Pryor?,” you’re asking.

The answer is that Mark, too, has written about the intersect between immigration law and criminal defense, or, more accurately in his case, criminal prosecutions.  Like Jamison, one of the things I like about Mark is that he actually thinks about things like this; he does not take them lightly; they weigh upon him and he weighs them.

But in this instance, I see a problem with his approach.

As Mark puts it, once a week he encounters the following dilemma:

A defendant is charged with felony DWI, his third. He is here illegally from Mexico. Normally, on a third DWI I’d offer probation but INS has a detainer on him: as soon as we conclude his case he’ll likely be deported. Unless he’s convicted of a misdemeanor, in which case he might be able to stay.

To cut to the chase, the end result is that — well, I’m not totally clear.  Mark doesn’t say what he actually does in these cases, although he implies that he does not offer them probation, as he would if they were citizens (or were perhaps in some other way not subject to deportation), because they won’t be able to comply with the terms of probation, since they’ll be deported, and he further implies that he will not offer them a misdemeanor (which would allow them to avoid deportation).

Naturally, defense attorneys complain that this is a double punishment, since following their prison sentence, they will be deported anyway.  Mark notes,

They are right, that is harsh. But my response usually comes in the form of a question: Should someone really get a break because they are here illegally? I wouldn’t normally reduce a felony to a misdemeanor, and doing so because someone has entered the country illegally seems unfair.

I disagree that it seems unfair.

The way I understand things, anyone who has been in the United States illegally will not be allowed to return following deportation — at least for a minimum of 10 years — anyway.  Mark already noted that because he doesn’t offer probation, these folks are punished more harshly than the norm for those he prosecutes by getting a prison term followed by deportation.  He won’t give probation because they can’t comply with the terms if they’re deported.  Presumably, then, the reason for not offering probation is because they will automatically, if they are deported (which they almost certainly will be) be in violation of the terms of probation.  (He forgot to add one consequence, by the way, but maybe it doesn’t exist in his state: In California, you can’t leave the state without permission if you’re on probation.  So far as I know, there’s no exception just because one was removed from the state against one’s will.)

I’m not sure, but I think the idea in Mark’s mind — I didn’t ask — is that he doesn’t want to set them up for failure, so he gives them a prison term instead of the probation offer.

My thinking is that they should still get probation.  So they can’t comply; so they’re going to be in violation.  Who cares?  If they were to try to return to the state, they’d be breaking the law anyway, so being in violation of probation hardly seems problematic.

On the other hand, if they are placed on probation and then deported, they can — like those citizens to whom he does offer probation — try to get on with their lives.  Plus, as one commenter to Mark’s post noted, it may be possible to work out a way for them to comply with probation even though they are facing deportation.  But if it’s not, then, again, they can at least get on with their lives and, if they decide to follow the law, they aren’t returning to the state any time soon anyway — and will be subject to arrest by federal officials for doing so if they did.

Furthermore, if the only reason Mark doesn’t offer probation is that they are indocumentados, then I think this might violate Equal Protection, or possibly the 14th Amendment, under the United States Constitution.  I stress MIGHT because while I sometimes read constitutional law while sitting in front of my TV, I am not a constitutional scholar and I don’t really know.

If Congress passed a law, I believe they could fix this, since under the Constitution, this is something the feds control.  Since Mark is a state prosecutor, he is arguably violating the due process rights of these individuals under the 14th Amendment through the differential treatment accorded under his “policy.”  (See Roger C. Hartley, “Congressional Devolution of Immigration Policymaking: A Separation of Powers Critique” (2007)  2 Duke Journal of Constitutional Law & Public Policy 93.)

Alas, Mark and I are in different jurisdictions.  I’ll not get the chance for us to test this theory.

On another note, if anyone knows of other reasonable and interesting blogging prosecutors (and law enforcement officers), please feel free to send me links.  I’ll check them out and maybe add them to my blogroll.

Shut up!  I don’t like what you’re saying!

Increasingly, this is the approach Americans — Americans! — are taking to deal with speech they don’t like.  Whether this involves the hateful speech of would-be dictators, the words of electronic schoolyard bullies, or just folks with whom we disagree on government policy, the New American Way is to stop them from talking.  Extra points if we can protect our own speech while squelching theirs. 

Freedom of speech, though, is more than just the law.  It’s a good idea.  It’s a good idea because it’s a necessary component for a vibrant society. 

Perhaps this is one reason it was the First Amendment to the United States Constitution and the one most Americans can remember as actually being part of that Constitution.  Even though most Americans don’t know a damn thing about what the Constitution really does, means, or stands for, they know “freedom of speech is in the Constitution!” 

But fascism is the very antithesis of a vibrant society.  Perhaps this is also why when fascism rears its ugly head, controlling speech is the first thing to suffer.  First, you try to “work with” those people speaking in ways you don’t like:

It seemed as though a large number of people were zealous to work with and through the editors these days, thought Doremus.  (Sinclair Lewis, It Can’t Happen Here (2005 ed.) p. 165, originally published in 1935.)

But if Fox News isn’t enough, or if people insist on routing speech through non-Fox venues, or if you’re just impatient, then you take another approach. 

The mob acted then, swift and together, on no more of an incitement than an unknown M.M.’s shout: “Ought to burn the place, lynch the whole bunch of traitors!”  They were running across the street, into the front office.  He could hear a sound of smashing, and his fright was gone in protective fury.  He galloped down the wide stairs, and from five steps above the front office looked on the mob, equipped with axes and brush hooks grabbed from in front of Pridewell’s near-by hardware store, slashing at the counter facing the front door, breaking the glass case….

Shad roared on: We’re not going to bust up this place.  Jessup sure deserves a lynching, but we got orders from Hanover — the Corpos are going to take over this [newspaper] plant and use it.  (Sinclair Lewis, It Can’t Happen Here (2005 ed.) p. 183, originally published in 1935.)

Restricting speech is increasingly the choice of Americans, whether officials or not, because reasoning with people is more difficult. 

It became easier to answer malcontents with a cuff from a Minute Man than by repetitious statements from Washington. (Sinclair Lewis, It Can’t Happen Here (2005 ed.) p. 157, originally published in 1935.)

And it’s easier to suspend children for bullying others, whether online or in person, than to socialize them. 

The case that caused me to write this article shows that the government barely understands why this is wrong.  The students involved show every sign of being at risk to become future criminals.  But then, what insecure, sniping group of bullies, cyber or otherwise, doesn’t? 

The judge forced to rule on the lawsuit filed after the school was sued for expelling one of them got that much.

“The fear that students would ‘gossip’ or ‘pass notes’ in class simply does not rise to the level of a substantial disruption,” he wrote.  (Victoria Kim, “For students, a right to be mean online?” (December 13, 2009) The Los Angeles Times.)

The court appears to have missed the mark, though, in another aspect of the case:

Judge Wilson ruled that school officials had the authority to investigate the matter because the student told several of her classmates to watch the video, and it was foreseeable the video, or talk of it, would quickly make its way to the campus of Beverly Vista School. The video was “designed in such a manner to reach many persons at once,” making it different from earlier cases involving school newspapers or a violent drawing, he found. (Kims, supra.) 

So the number of people potentially hearing the speech matters?  That’s not a very good standard to use!  Who decides the number?  Do we need to rewrite the First Amendment?

Congress shall make no law…abridging the freedom of speech, or of the press…unless the speakers and writers become too popular and too many people hear or read what they have to say….

The way to combat speech is with speech.  To beat out bad ideas, teach better ideas.  Yes, educating people is harder — although it is normally easier to educate children than adults.  And I’m not talking about brainwashing them with any particular political doctrine, either.  It can be as simple as teaching empathy and understanding.  These skills are necessary precursors to any healthy society. 

Freedom of speech, as I said above, is a necessary precursor to a vibrant society, but it works — when it works — because we know how to be empathetic, we know how to understand, and we know how to reason with one another. 

And it would do all of us well to realize that the freedom to speak is perfectly complemented by a willingness to listen.  For if no one is listening, then what really does it matter if we’re free to speak?

Whenever I’m irritated by what others say, I have a “slogan” I repeat to myself:

The First Amendment: It’s not just the Law; it’s a Great Idea.

Feel free to adopt it for yourself.

What they don’t tell you on television is that, increasingly, the attorney appointed to represent you will also be representing possibly as many as 200 other people at the same time.

Meanwhile, Fresno County continues to decrease the number of Public Defenders and necessarily therefore increases the caseload of those poor souls remaining.

How do we reconcile this with the United States Supreme Court having declared that “the right to the aid of counsel is of this fundamental character”?  (Powell v. Alabama (1932) 287 U.S. 45, 68 [53 S.Ct. 55, 77 L.Ed. 158]; Gideon v. Wainwright (1963) 372 U.S. 335, 342-343 [83 S.Ct. 792, 9 L.Ed.2d 799].)  After all, the “this” refers to a legal right that is “fundamental and essential to a fair trial.” (Gideon, supra, 372 U.S. at 342 (emphasis added).)

Yet as California’s First District Court of Appeal noted just last month:

“[I]ndigent defense in the United States remains in a state of crisis, resulting in a system that lacks fundamental fairness and places poor persons at constant risk of wrongful conviction” and…as a result, “the integrity of the criminal justice system is eroded and the legitimacy of criminal convictions is called into question.”  (In re E.S. (2009) 171 Cal.App.4th 1219, 1246 fn 8 [90 Cal.Rptr.3d 564], quoting and citing ABA Standing Com. on Legal Aid & Indigent Defendants, Gideon’s Broken Promise: America’s Continuing Quest for Equal Justice (Dec. 2004) p. 38, emphasis omitted [in opinion].)

The E.S. case is remarkable because it’s the first time of which I’m aware that a California appellate court clearly held that the Sixth Amendment is not satisfied by placing a mushroom in the chair next to a defendant and christening the mushroom an “attorney.”  (I’m not positive, but I think in Kings County, the rule is that, with one exception, the mushrooms must be moldy.)  The Court even cited Strickland v. Washington (1984) 466 U.S. 668, 686 [104 S.Ct. 2052, 80 L.Ed.2d 674] as if Strickland had teeth! Specifically, the Court said, “the right entitles the defendant not to some bare assistance but rather to effective assistance.” (emphasis in original).

As if that were not shocking enough, E.S.’s conviction was reversed!  And the reason for the reversal was, essentially, the caseload of the Public Defender who handled the case.  As the Court noted,

Under the Penal Code, a public defender may not be assigned to represent an indigent defendant in a case in which he or she has a conflict of interest [citation] and a conflict of interest is inevitably created when a public defender is compelled by his or her excessive caseload to choose between the rights of the various indigent defendants he or she is representing. [Citation.]  (In re E.S., supra, 171 Cal.App.4th at 1246 (citations omitted).)

Wow!  Let’s see that again!

[A] conflict of interest is inevitably created when a public defender is compelled by his or her excessive caseload to choose between the rights of the various indigent defendants he or she is representing. [Citation.]  (In re E.S., supra, 171 Cal.App.4th at 1246 (citation omitted; emphasis added).)

Now before you Public Defenders jump down my throat, I have long explained to potential clients that there is nothing wrong with having a Public Defender.  In fact, I’ve gone farther.  I’ve told potential clients that, on average, Public Defenders are better attorneys than private attorneys.  No small part of the reason for that is because Public Defenders work under conditions that give them way more experience “lawyering” in six months than most attorneys get in years.

The problem is, no matter how good an attorney is, there’s a limit to how many simultaneous cases he or she can juggle.  Eventually you reach the point of (rapidly) diminishing returns.  Public Defenders loaded up with more cases in a month than most private attorneys will handle in a year will eventually have so much to do that they simply cannot do it.  Not well, anyway.  The result is that “the constitutional right to the effective assistance of counsel [is] reduced to form without substance.”  (In re E.S., supra, 171 Cal.App.4th at 1248, quoting People v. Ledesma (1987) 43 Cal.3d 171, 217 [233 Cal.Rptr. 404, 729 P.2d 839].)

If rumors I’ve heard the last week are true, the Fresno County Public Defenders’ Office, which in the six months prior to January 2009 lost six percent of its workforce due to budget cuts, is about to lose even more.  One rumor says Public Defenders have been told that ten attorneys — approximately one-eighth of the current number listed on their website — are going to be laid off.  Another rumor mentions seriously significant budget cuts — on top of cuts already made when money was transferred from funding a right deemed “essential to a fair trial” so that even more people could be arrested!

Things are already bad enough without this.  Friends tell me that last week, in one courtroom, a judge was on the phone begging (okay, the actual word used was “yelling”) for Public Defenders so the calendar could move, while District Attorneys — prosecutors! — were filling out “Change of Plea” forms for accused people!  (For those who don’t know, this involves explaining statutory and constitutional rights to the accused person, asking them to give up those rights and getting them to sign, under penalty of perjury, stating that they understood their rights and voluntarily gave them up so they could plead guilty.)

This is not how justice is administered.  Arresting more people, but providing fewer with the resources to defend themselves, or even to understand what is happening to them, is a recipe for injustice.

As I noted the other day, ours is meant to be an adversarial system.  We believe that the Truth of the case comes out by having competent attorneys “testing” one another’s theories of a case in front of a jury of fair-minded and impartial persons.

But with the proposed budget cuts, particularly when funding is shifted to police agencies, instead of the crucible of adversarial testing, you get the mosh pit of non-adversarial convictions.

On the other hand, maybe that’s part of a master plan for improving District Attorney Beth Egan’s abysmal conviction rate.

I could only think of one response….

Well, OF COURSE the Internet should be regulated.  Isn’t that how America works these days?  How are we ever going to be a complete police state if we don’t start regulating speech?

Whenever someone doesn’t like something and they want to government to step in and regulate it notwithstanding the Constitution, they point out how things are different today to when the Founders first wrote the Constitution.  Because things are different, governmental authority needs to be different.  Since at least the 1990s, the best way to show this is to point out that today, we have the Internet.  The Internet is totally different from a broadside, or from rampant unsupportable rumors and hearsay burning through a town, province, or state such as existed…well, everywhere…in the late 1700s.

After all, defaming someone in a broadside, or starting a defamatory rumor that turned the entire town against them…well, that could only put someone out of business.

TODAY, we have the Internet!  A defamatory rumor on the Internet could put someone out of business!

See how different things are today?!

What is not different is the fascistic drive within many of us that makes it impossible to allow for the kind of freedom our Founders envisioned when they formulated the Constitution.  What is not different is the misguided specks of humanity who are incapable of recognizing patterns from the past and think that every “new” thing they don’t like is so totally new that it requires a complete re-casting of our societal mores and law.

I see no hope for the future of our people if they are dependent on frivolous youth of today, for certainly all youth are reckless beyond words… When I was young, we were taught to be discreet and respectful of elders, but the present youth are exceedingly wise [disrespectful] and impatient of restraint” (Hesiod, 8th century BCE)

Children nowadays love luxury, have bad manners, contempt for authority, disrespect for their elders. (attributed to Socrates, 5th century BCE)

What has been will be again,
What has been done will be done again;
There is nothing new under the sun. (Ecclesiastes 1:9 (NIV), probably 3rd century BCE)

Someone did something I didn’t like and it’s different from when other people in the past did things someone didn’t like. They did it using the Internet! The Constitution doesn’t apply! We need a new law! (about a brazilian people — with the same level of intellect as the person who allegedly thought “brazilian” was a really large number — since at least the rise of the Internet)

And several more brazilian before the Internet who thought the Constitution stood in the way of their being able to stifle speech they didn’t like.

The Internet may be bigger, but apparently our brains are getting smaller.

Uh-oh! Did I just defame an entire species?