Tuesday, December 30, 2014

Police Use of Force: Deferential Legal Standards

Editor’s Note: This is part one of a two part blog post examining police use of force. Part one examines the deferential legal standards applied to police use of force. Part two will be published next week and will examine the relationship between officer training and police use of force.

In December 2009, Albuquerque police responded to a domestic violence call where they discovered a man had doused himself in gasoline.  Several police officers managed to place the man in handcuffs and removed him from the apartment.  The man resisted the officers by banging his head against the wall.  In response, several officers used their Tasers in drive-stun mode[1], setting the man on fire.  This account is one of many examples listed in the 2014 Department of Justices civil investigation into the practices by the Albuquerque Police Department (APD).  The findings concluded the department engaged in a pattern or practice of excessive force--in many cases deadly force--violating the Fourth Amendment’s right to be free from unreasonable seizures.

Friday, December 26, 2014

Structural Coercion: Plea Agreements and the Dilemma of the Innocent

There is a thought that only the guilty would admit their guilt and enter into plea agreements. Because why would an innocent person accept the guilty verdict of a crime they in fact did not commit? That theory, however, simply is not true. The plea bargaining process is driven by prosecutorial dominance and is overly coercive to induce guilty pleas. The problem is that our criminal judicial system is plea oriented; dominance that begins with the state offices prosecutor and extends as high as to the judge. The plea bargaining process presents an attractive out for the state in that it is efficient and requires less of an allocation of resources. However, that same out is not as defense friendly. The scenario can be as simple as plead guilty and take 15 years in prison or take your chances at trial and get life. This is a decision that could rest on the shoulders of a guilty defendant, who arguably may deserve the sentence. However, it could also rest on the shoulders of an innocent defendant who would be forfeiting many constitutional rights in order to avoid the huge risk of a jury trial.

Friday, December 19, 2014

Fighting for Justice in Ferguson: The Role of Attorneys During National Protests

With the death of Mike Brown in Ferguson, the controversial issues of systematic racism and police brutality have captivated American citizens. In a time when the public outrage and qualms not only about police officers, but also the legal system that seems to protect those who fail to “protect and serve” citizens is at an all time high, people are calling for justice. Attorneys from across the nation have traveled to Ferguson, Missouri to take their place within the heated protests to provide legal assistance to protesters who have been arrested, to monitor and document police behavior, and to provide legal assistance to those who may not be able to afford representation. As citizens fight for justice surrounding the incidents in Ferguson, attorneys have been there on the ground to aid in the fight.     

Friday, December 12, 2014

Riley v. California: The Pandora’s Box in A Digital Age Restructuring of Fourth Amendment Law

This summer, the United States Supreme Court made a huge leap in upholding the people’s right to privacy under the Fourth Amendment in the unanimous decision, Riley v. California.  Riley created a bright-line rule, curbing police discretion, that cell phones (not only smart phones) are not reasonably subject to a search incident to arrest unless an extenuating circumstance is present. 

Wednesday, December 10, 2014

California’s Criminal Immigration Reform

As of January 2015, a new Californian law will reduce the maximum possible sentence for a misdemeanor from 365 to 364 days. The single day reduction will remain a seemingly inconsequential change for United States citizens; however, the law, S.B. 1310, will have a drastic impact on the lives of noncitizens convicted of misdemeanor offenses.

Under the previous law, many misdemeanors were punishable by up to one year in prison. “That one year sentence, or even the possibility of a one year sentence,” can have a significant impact on a noncitizen’s immigration status. This is because the basis of deportation is not the actual length of the sentence, but rather is contingent on whether an offense is "punishable by a year or more."  Because sentences of exactly one year created this one-day overlap in definitions, many California misdemeanors were deportable offenses under the prior version of the law, even if they are relatively minor and resulted in little or no jail time.

Friday, December 5, 2014

“I-Witness” Testimony: The Problem of Remembering What Happened in Ferguson

*Author’s Note:  First and foremost, I extend my deepest sympathy to the family of Michael Brown.  Regardless of the circumstances, it does not change the fact that a young life was lost; a mother yearns for the warm embrace of her son; a family mourns the loss of a loved-one; a community struggles to understand and heal; and a nation is confronted with an opportunity to define its legacy. 

Tuesday, December 2, 2014

Dealing with Juries Full of “Experts”

The CSI Effect. If you practice law, no doubt you’ve had firsthand experience with this phenomenon, as ubiquitous as it is. For the rest of you, you may not even be aware that there is a problem in the first place. Even if you haven’t watched the show or its many spinoffs, you probably know what it’s about: people solving crimes with the power of forensic science. There are a dozen or so shows on TV right now with this central theme. Millions of people watch CSI, with 8.59 million last week alone. At one point, it was the most watched show in the world and with CSI: Cyber premiering mid-season, it’s clear that these shows are popular and not going anywhere.