Public Defender Arrested in Court!

So, this happened today: Two guys were arraigned for petty theft charges. Cops showed up and started asking them questions about an unrelated robbery and taking their pictures. The defense attorney intervened, and this is what transpired:


A short version of what happened, including my commentary, is already on the Chronicle. Since people already know about this, and I therefore can’t use it for the perfect exam question that it is, here’s my analysis:

A. Did the cops violate the clients’ constitutional rights?

A. 1. Sixth Amendment. 

In “criminal prosecutions”, that is, after a person is formally charged, he or she is entitled to legal representation. This means, under Massiah v. U.S., that once the person has retained a lawyer, the police is not allowed to elicit information from him/her. But: The Sixth Amendment is offense-specific, which means the cops *can* approach the person regarding an unrelated offense. So far, what the cops did was kosher.

A. 2. Fifth Amendment

But people also have a privilege against self-incrimination, and when under custodial interrogation, they should be Mirandized so that they know they may remain silent and consult with an attorney. Was this “custodial interrogation”? sticky. On one hand, these guys are not under arrest; they are merely standing in the court hallway. On the other hand, the cop says, “you’ll be free to leave when we’re done”, which presumably means they are not free to leave at the moment. And, does asking for names and taking pictures count as “interrogation”? does it produce “testimonial evidence”? If so, they should have been Mirandized. My instinct, lamentably, is that it doesn’t. No custody, questionable interrogation.

B. Was the lawyer allowed to intervene?

Even assuming that there was a violation of the clients’ privilege against self-incrimination, under Moran v. Burbine the privilege belongs to the client, not to the lawyer. The clients should have stopped the interrogation and asked for the lawyer, not vice versa. Of course, this is ridiculously unrealistic–who better than the lawyer to help people with their rights? But there you have it.

C. Should the cops have arrested the lawyer?

Even if the lawyer did not, constitutionally, have a right to intervene, the arrest is ridiculous. There’s an argument there, but the lawyer is not being violent or disruptive in any way. The cops clearly got carried away.

All the other stuff that is going on in the political chatter–racial profiling, zealous representation, yada yada–strikes me as nothing more than political flourish. The bare bones of the legal situation are, I think, as I stated above. Thoughts?

Does It Matter Whether People Support the Death Penalty?

Yesterday’s Asahi Shimbun reported a drop in support for the death penalty in Japan:

In a sign of wavering support for capital punishment, the first decline in the percentage of Japanese who support the death penalty has been noted, although the support rate remains about 80 percent, according to a Cabinet Office survey released Jan. 24.

The decline in support is the first since the survey, which is conducted every five years, began in 1994, it added.

The high percentage in the survey apparently shows the public’s continuing sympathy for victims of violent crime.

Now, 80 percent is still a lot, and we should keep in mind that death penalty law varies fairly dramatically across Asian countries. But here’s something interesting: there is considerable support for the death penalty even in countries that abolished it long ago, like the UK. Here’s an assortment of studies on public opinion in various abolitionist and retentionist countries.

It’s important to point out that, in most abolitionist countries, a majority of citizens was in favor of the death penalty at the time of abolition. I have three thoughts about this:

(1) Abolishing the death penalty is a top-down move, not one that typically calls for broad populistic support. For more on this, read Pieter Spierenburg’s The Spectacle of Suffering.
(2) Using the financial crisis to abolish the death penalty nationwide in the United States is possible and worth doing, regardless of popular support. Once it goes away, it won’t come back.
(3) Over time, the arc of justice bends toward abolition. Whether or not a country has abolished it, and whether or not its citizens are in the throes of inertia, support wanes. That’s a good thing.

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Props to Jonathan Marshall for the link.

Prop 47 Reaps Rewards

Wonderful news via KPCC:

Los Angeles County probation officials reported Thursday that Los Angeles County’s jail population is at its lowest level since realignment sent it soaring in 2012 – and they expect it to keep dropping. They credit voter-approved Proposition 47, which lowered penalties for drug crimes.

In a status report to the county Board of Supervisors, officials said L.A. County’s jails had fewer than 16,000 inmates at the end of 2014. Just two months earlier, there were more than 19,000 inmates.

L.A.’s jail population was last under 16,000 inmates in 2011. The numbers began to climb when the state launched its massive “realignment” effort. That policy called for sentencing non-serious, non-violent, and non-sexual offenders to county jail, rather than state prison, which led to overcrowding in the county’s jails.

Proposition 47 passed in November and has effectively erased the crowding caused by realignment.

Officials said the drop has allowed them to keep more offenders incarcerated for larger portions of their sentence. They still don’t have enough space to keep everyone for their entire sentence.

But officials expect the jail population to keep dropping.

About 2,500 jail inmates are likely eligible for re-sentencing and early release, according to the probation department. Inmates must apply for re-sentencing, and have it approved in court.

A few comments:

(1) This is further proof that it pays off to be cheap on crime.
(2) It’s beautiful to see Prop 47 do what the realignment could not – put people out of incarceration in the first place, rather than shift them across jurisdictions – and cure some of the financial and physical bulges created by realignment.
(3) I’m now sitting and waiting for the other shoe to drop–the stories analyzing the impact of Prop 47 on crime rates. When these start coming through, be mindful of research quality; a lot has happened since the recession, and since the realignment, that needs to be controlled for.
(4) Plenty of the L.A. jail inmates are pretrial detainees, who of course are not affected by the passage of Prop 47. How about alleviating some of that unnecessary crowding via sensible bail reform?

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Props to Francine Lipman for the link.

Bringing to Light: Invisible Abuses in Prison

Today I attended the Hastings Women’s Law Journal symposium Bringing to Light: Invisible Abuses against Women and LGBT People in Prison. The symposium had three panels: reproduction, family, and specific issues concerning trans inmates.

The main theme that stood out for me was the question of choice and alternatives, and especially the inability to offer good alternatives in the context of a prison regime. Surely we can do better than the quality of health care that is offered to pregnant women, but that requires a lot of thought and working within difficult constraints. The first panel was held, of course, in the shadow of the horrifying discoveries about sterilizations in California prisons, and many of the panelists referenced that incident, as well as other horrors involving the management of pregnancy and birth in prison. The birth process itself and the immediate separation from the child are obvious problems. But what about, for example, the practice in Riverside of having pregnant women wear neon orange bracelets? The intent is probably good–to ensure that they are handled with extra care and safety–but what about a woman who wants to terminate her pregnancy and does not necessarily wish for the pregnancy to be common knowledge?

The same issue reverberated in the last panel, the one about trans inmates. The options for classification are fairly limited: a trans woman, for example, could be exposed to atrocious forms of abuse on the part of inmates and guards if placed in a men’s prison, but would also be ostracized in a women’s prison. And, as it turns out, different trans people have different preferences in this regard–some involving their safety and some involving their desire to form intimate relationship (which is very human and understandable and, in my opinion, deserving of the same amount of respect.) Isolation may protect one from some forms of abuse, but open other avenues of abuse, and has its own huge detriments. So what’s to be done?

Subjecting people to regimes of incarceration inherently robs them of a modicum of autonomy about their lives, and the choices are not abundant or good. Even when there are good intentions–and that is not always the case–they can be distorted by misunderstandings and generalizations. Advocating for special populations under these circumstances can be extremely fraught, and I’m very grateful to have learned more about this from the folks at the front line of advocacy.

Kale Chips

Kale has become quite the celebrity in the last few years, to the point of parody, and with good reason. But I’ve liked and enjoyed it ever since I came to the States and cook it frequently. One of my favorite recipes is kale chips, which are delicious and ridiculously easy to make. I’ve always made them with curly kale, like these folks, but our CSA box arrived with Dino Kale instead, so I used that.

This lunch batch is purely kale and a tiny drizzle of olive oil, but there are many variations on that theme:

  • massage the kale in lemon and avocado
  • sprinkle a flavored salt
  • add cajun spice
  • add finely chopped garlic cloves 
The important things remain constant: preheat the oven to about 350 Fahrenheit, make sure the leaves are properly massaged in oil, place them in one layer on the baking sheet, and don’t let them burn. 

CSA Showdown!

 We’re drowning in excellent produce!

As we contemplate which CSA to join, we’re ordering produce from a number of great places. What you see in the photo, save for the big pumpkin in the back, is the combined loot from two deliveries: Albert & Eve and Farm Fresh To You. The produce is fresh and wonderful in both boxes; we get more or less the same stuff (unsurprisingly, as both outfits send out organic, seasonal, local produce); and the price is comparable. We’re going to have to make some tough decisions, and I’m even considering going with both CSAs on alternating weeks!

In the meantime, this became a good problem to have, and I decided to get cooking. I ate some fresh tangelos, tangerines, and apples, and am waiting for the pears to ripen. Which, as a friend informed me, does not happen on the tree, so it’s worth a wait. 

Meanwhile, for lunch, I’m having steamed broccoli and kale chips. I’ll devote a separate post to the latter. As to the former, since I’m also making a giant pot of soup, with carrot, squash, celery, beets, beet greens, onions, and broccoli stems, it made sense to simply steam the broccoli florets atop the soup, thus getting two things done at once. I found this magical steamer/colander, flexible and pliable and shaped like a cabbage leaf, at the Denver Museum of Art store, and use it almost on a daily basis. Steaming something over a cooking soup is a classic time and space saver, and as a bonus, the steamed vegetable on top comes out more fragrant.

Japanese Rice Treats – Onigiri

Chad had to head out to martial arts and decided to prepare Japanese rice treats for the potluck. I learned something new!

We started with 3 cups of lightly milled brown rice and cooked them in 6 cups of water. Then, we split the resulting rice into two bowls, left some of it unseasoned and seasoned the remainder with lots of yasai fumi furikake. Ordinarily, rice seasoning has some dried fish in it, but this one is completely vegan.

We made big balls out of the unseasoned rice, hiding an umeboshi plum in each ball and decorating each ball with a wee bit of ume on top. We wrapped them in nori. This process, be forewarned, requires a little bowl of water to dip your fingers between balls, as the rice is (and should be) somewhat sticky.

For our next trick, we made onigiri: wetting our fingers throughout the work, we sculpted oblong shapes out of the furikake-seasoned rice and wrapped each with a nori strip. This was somewhat complicated by the participation of the household cats, who adore nori, and especially Archer, who snatched several of the ready-cut strips from our very hands. But eventually we managed to make something like 30 cute little units. I’m sure the folks at martial arts training will love to snack on this and am delighted to have learned something new!

Brunch with Northwest Friends

It was delightful to host two good friends from Port Townsend, WA, for brunch yesterday! While usually, when I host folks that are used to mainstream food, I try to be non-intimidating in my menu choices, our friends are both avid cooks and one of them is a real expert on pickles and fermentation. So, I proudly served the house kombucha (made from jasmine tea) with the following menu:

  • Kale with Oranges and Ginger
  • Mushrooms and Vegan Sausage with Caramelized Onions
  • Roasted Yams with Rosemary
  • Fruit Soup
All vegetables and fruit in the menu came from our CSA bag. And it was all pretty easy to make.
For the kale, cut large (1-inch) strips out of an entire package of dinosaur kale. After sauteeing a bit of garlic and ginger in some olive oil, add the kale, a peeled, sliced orange, some veg broth, and sautee till the kale wilts.
For the mushroom hash, thinly slice one onion and caramelize in olive oil. Add 3 cups of button mushrooms, 3 sliced vegan sausages, a bit of hot sauce, and some Ajvar Mild Vegetable Spread. Cook until everything is the desired consistency.
For the roasted yams, slice yams and sweet potatoes pretty thinly and place, in one layer, on an olive-oiled baking sheet. Sprinkle with sliced onion cloves and fresh rosemary. Bake at 350 Fahrenheit for 20-30 mins.
For the fruit soup, see the compote instructions and add a dash of brandy. This time I used pears in lieu of the apples and it turned out wonderful.
The kombucha deserves a post of its own sometime in the near future.

No-Nonsense Working People Soup

I’m home after a very long workday, which followed an all-night grading session; it’s been a good day, but I’m wiped out and ready to go to bed early. Happily, it’s super easy to whip up a quick dinner soup when one has recently cooked pinto beans.

3 carrots
2 green zucchini
5-6 celery stalks
big handful parsley
big handful cilantro
1 1/2 cup pinto beans, cooked
1 teabag Numi Savory Tea
2 heaping tablespoons Ajvar mild vegetable spread

Cut vegetables into 1/2 inch cubes. Mince herbs. Place everything in a pot and cover with water or broth. Gently place Numi teabag atop the soup and let cook for 25-30 mins.