Friday, November 18, 2016
Tuesday, August 9, 2016
CPI Calls on Candidates Clinton and Trump to Renounce ‘Victim Centered Investigations’ as an Affront to Justice
WASHINGTON / August 9, 2016 – Today the Center for Prosecutor Integrity (CPI) is calling on presidential candidates Hillary Clinton and Donald Trump to issue a call for the end of victim-centered investigations (VCI) in sexual assault cases. Victim-centered investigations represent an biased approach to sexual assault investigations that openly favors the accuser and eliminates the presumption of innocence, the center charges.
Both the Democratic and Republican political platforms, approved last month, specifically call for fairness in handling criminal offenses. The Democratic platform highlights the need to “ensure a fair process for all on-campus disciplinary proceedings and in the criminal justice system.”
The current regime of campus adjudications “contravenes our country’s legal traditions and must be halted,” according to the Republican platform, and “prevents the proper authorities from investigating and prosecuting sexual assault effectively with due process.”
Victim-centered investigations emphasize the collection of evidence supportive of the complainant and discourage the collection of exculpatory evidence, thereby increasing the likelihood of a guilty verdict. Victim-centered investigations represent a departure from ethical standards of investigative impartiality, neutrality, and objectivity.
Proponents of victim-centered investigations openly urge investigators to “start by believing” and assume the complainant’s account is true until proven otherwise. As a result, justice is compromised and the potential for wrongful conviction increases, CPI believes.
In one case, a Virginia college student was arrested and jailed for six days based on an uncorroborated allegation of sexual assault. The student had never been to the city where the assault alleged took place and the accuser’s account contained numerous inconsistencies. The case was eventually dropped after the student produced over 40,000 emails and other documents that proved his innocence. The student was saddled with over $60,000 in legal fees to defend himself against an accusation that had no basis in reality.
CPI urges both presidential candidates to endorse a “justice centered” approach which protects due process, preserves the presumption of innocence, and utilizes an impartial evaluation of all evidence. While complainants must be treated with respect and taken seriously, investigators must always remain impartial and follow the evidence.
The Center for Prosecutor Integrity works to enhance prosecutorial ethics, reduce over-criminalization, and end wrongful convictions. More information on victim centered investigations can be viewed at http://www.prosecutorintegrity.org/sa/investigations/
(Required by Alabama Law: No representation is made that the quality of legal services is greater than other lawyers.)
Tuesday, July 12, 2016
Contrary to what you often hear, the American justice system is not broken. Before you think that I'm an apologist for our courts, read on:
I often jokingly refer to myself as an “anarchist criminal defense lawyer.” I make this jest because unlike many lawyers who practice criminal law casually, I am an aggressive criminal defense lawyer and I use any tactic that is legal and ethical to win for my clients, no matter who I piss off.
I do this because the more aggressively the lawyer fights for his client, the more the justice system actually works. The legal system in the United States is designed to be an adversarial system – accent on the adversarial. The harder the attorneys fight, the more they use the rules of procedure, the more they exploit the “technicalities,” the more they demand the courts uphold the letter of the law, the more there is justice.
Many people don’t believe this, including lawyers. My experience has been that the lawyers who bitch the most about how “unfair” the system is are those lawyers who coast through their cases and think they will get a good result for their client by being a “good ol’ boy,” or by virtue of their popularity with judges and other lawyers.
It is this legal half-assery that is making the system veer wildly from true justice to what many perceive as miscarriages of justice.
That's not all. When people who aren't lawyers see this legal half-assery, they assume it applies to the entire system.
Consider that in today’s political climate the justice system is now hotly debated among people of all political stripes. The right and left howl perpetually about some injustice fomented by the courts. Judges who don’t rule the way a certain voting bloc wants are decried as unjust and the mob gets ready to storm the Bastille and string the offending judge up by the neck. I am not kidding. The judge who handed down the legally correct sentence in the Stanford University "rape" case received death threats for merely following the law – the very thing we expect him to do. Why did I put quotes around the word "rape?" Read the actual case and you'll see why.
I remember seeing the tidal wave of abuse heaped upon the judge, the courts, the system, the lawyers, the parties when that case made the press. The media – which never gets a legal story right no matter how they try – ginned up a controversy for ratings and the public ate it like cats devour catnip. The end result was a “movement” to unseat the judge. Others wanted to simply kill him.
These reactions are terrifying, because they threaten your freedom. That's what I said. You're freedom. Why? Because next time you might be the Frankenstein monster the mob wants to lynch. It’s that simple.
Mob mentality is never a good thing. Whether that mob is in the streets of Ferguson, Mo. -- attacking and looting local businesses because they don’t like the result of a case -- or a wild-eyed mob of internet activists, both do considerable damage to society.
The justice system is supposed to a co-equal branch of our government. You have the legislative branch which makes the laws. You have the executive branch which enforces the law. You have the independent courts which make sure the other two don’t tramp down your constitutional right to be free.
So, when a mob attacks the justice system for merely following the law, it’s a threat to our freedom because no society can survive if a mob of howling dogs decides who lives or dies.
A couple of days ago I was reading a Facebook site for a left-wing group called “Democracy Now.” There was a story on their page of a rape case in which a defendant was given a three year sentence for a “rape.” No details were given. The howling mob of left-wing Democracy Now supporters exploded into a rage. It was, in their minds, an injustice, another example of how women are disposable. And it was proof our justice system is irretrievably broken.
I read the post and thought there was so little information that it was impossible to tell what had actually happened.
Then I did something unusual. I commented on it. I said, “As a lawyer for more than two decades, I encourage you to stop second-guessing the court system on these cases. You didn't hear the evidence. You don't know all of the nuances.” I explained that the media never gets the legal case right, that there are complex rules and laws which must be followed and it’s never as simple as a media story wants to make it. In short, you can't package a 1,000 page legal transcript into one 14" news story.
I was then attacked from all sides. The lefties on Democracy Now told me I had no right to comment because I’d never been raped. The righties said I was a dirty defense lawyer and the lefties agreed. I was assailed as a racist white Southerner. I was accused of being an apologist for men. I was accused of supporting rape as a socially accepted part of a male-dominated culture.
I was called a liar because I am a criminal defense lawyer. I was repeatedly called a racist who only defends rich white people. I was accused of “lawyer mansplaining, even more heinous and unusable.” I was accused of promoting “white pride.”
Many of the people posting on the site wanted “justice,” by that they meant only one result – the person accused is found guilty and then killed. It was only justice when the accused was convicted. It was only justice when revenge was extracted. The rules of our system meant nothing. The rules of evidence meant nothing. A fast-track guilty verdict was all that was acceptable.
Many said justice would only be served when the accused went to prison to be raped by black inmates. Wait! I thought they said I was the racist!
One person said judges who follow the law “encourage others to rape. This is a sick country!” Another person said he was “ashamed to be Caucasian” when he heard such verdicts. Another person said “our ‘justice system’ in this country is now non-existent.” Another implied all white people are rich and are rapists. He then said, “These judges, and (sic) well as these fucking rapists need lynching.”
Another said that if there is not enough evidence to convict the police should “just make up shit.”
The lesbian feminists and the right wingers apparently hate penises.“He needs to be castrated,” another intoned, “along with his lawyer and the judges that set him free.” Still another favored cutting the accused’s penis off as punishment.
One poster who was appalled at the alleged rape of the victim supported raping the accused. Another posited that the accused should be stoned to death. Many felt the accused should be killed because “he will do it again.” Are we ISIS? Stoning?
These attitudes are terrifying because they speak to a black and white mentality that I seriously can’t believe still exists in the world, much less in the supposedly educasted United States of America. The lefty feminists who banded with the right wing extremists, the Jesus freaks and the moralists all appeared to be advocating for a mindet found in wahabi-Islam and the freaked out Calvinism of old.
Justice by mob rule.
If this mentality isn’t aggressively challenged, we will see the end of all fairness in our courts -- and in our society. Aw hell, we won’t even need courts! Just a rope and tree.
And that’s always worked so well, right?
(Required by Alabama Law: No representation is made that the quality of legal services to be performed is greater than other lawyers.)
Monday, July 11, 2016
Look at this photo. This is 28-year-old Ieshia Evans passively opposing the Baton Rouge Police Department at a protest march. The cops were pushing and antagonizing the peaceful crowd, and the situation was getting tense. Ieshia calmly approached to passively object to the police threat. She was promptly arrested for no reason.
This is what is wrong with America today.
Cops dressed like RoboCop, in full military-style assault gear, confronting a passive, unarmed woman as if she is a threat – and then arresting her for no reason.
Our society is teetering on the brink of civil collapse because of the rise of the police state. Americans are no longer protected by police. They are assaulted by them.
Cops shoot unarmed people daily. The truth is, cops kill nearly double the number of whites as blacks annually. Shockingly, nearly half of all people killed annually by cops are unarmed.
Why? What is happening?
It’s a combination of things.
1) Cops are scared to death. When I was a cop in metro-Atlanta in the 1980s, we weren’t taught to fear the public. Today, cops are trained from day one to fear everyone they encounter. Every man, woman and child is a threat. The training – ostensibly a model believed to enhance police survival – teaches them that we are all out to kill them. Recruits are taught that everyone is dangerous. It’s an us against them mentality. Cops call the general public “civilians,” as if they’re military. They’re not. They’re civilian employees of the taxpayers.
When I was a cop, we were taught at police academy – and reminded when we went to work – that the public trusts us to make things better not worse. Our commanders used to say, “It’s your job to make things better. Don’t go into a situation and inflame it. Defuse it.” Today cops inflame every situation they encounter because of their training. (See # 3, later.)
2) Cops today view themselves as “the law,” rather than servants of the law. Cops have limited jurisdiction to arrest people. Their job is to make arrests when the cop believes that someone has broken the law. It requires probable cause. A cop must believe a crime has been committed and that the person being arrested likely committed it. In the case of petty crimes, the cop actually has to see the crime committed. Period. They’re not allowed to give legal advice. They’re not allowed to settle civil disputes. They’re not allowed to arrest people without cause and not allowed to arrest people for breaking laws that don’t exist. Of course, they do this constantly. Cops now view themselves as the arbiters of all things legal. An example: One time I was entering a courthouse and a cop, out of the blue, looks at me and says, “Take your hat off.” Now, there is no law requiring we take our hats off entering a courthouse. There is a rule that you can’t wear a hat in a courtroom, unless for religious reasons, but not just in a courthouse. I looked at the cop and said, “No.” He got instantly furious. I said to him, “You’re job is to uphold the law, not rules you make up in your head.” He insisted that I join him in the office of the presiding judge, whereupon the judge nicely told the cop he was wrong.
Cops often overreach beyond their authority, such as cops includes being called out to disputes between landlords and tenants, ordering the tenant to pay a landlord money, when in fact any judge would say the opposite. Cops trying to unilaterally enforce divorce decrees and child visitation orders, which they have no jurisdiction to do. Cops enforcing zoning ordinances, which they have no authority to do, is commonplace. Cops ordering people to do or not do things which are not even in the criminal code. I remember one case where a cop showed up at a hotel and told people not to use the diving board, etc. It’s bizarre. Cops want to micro-manage the lives of every American.
This becomes dangerously problematic when it comes to criminal investigations. Cops often make snap judgments about who committed a crime and then view themselves as judge, jury and executioner. They view themselves as having the right to destroy the lives of those they arrest.
When cops shoot down unarmed people, it’s because they view themselves as having the right to do so. Cops often bend the rules, falsify evidence, make mountains out of molehills all with the intent to do as much damage to the life of the person they are targeting as possible. Why? Because they believe the person deserves it, and they view themselves as entitled to do this damage.
3) Cops are trained these days to inflame every situation they are involved in. How could this happen? It’s simple. When I was a cop we were taught the “public safety” model. Our job was to keep the peace, to make no arrest unless absolutely necessary. When we encountered people, it was our job to ask questions, lots of questions, to discern what was going on. When dealing with people, be kind and polite and soft-spoken. Don’t be a pushover, but be professional at all times. I arrested many people who had committed serious felonies with “please” and “thank you.” Politeness often defused a tense situation.
When I encounter older cops who were taught this training model, I am always impressed. They are sober, reasonable, realistic, professional cops who know their job and do it well. They don’t lie in their reports and they don’t lie on the witness stand. I have considerable admiration for them.
Not so the younger cops. Today, cops are taught what is called the “command and control” model. No longer are cops taught to arrive at a call and ask questions. It’s that simple. They’re taught to arrive and put everyone on the ground, no matter how young or old, infirm, or innocent. Cops arrive barking orders, hands on their guns, telling everyone to get down as if everyone is an armed felon. Guess what? People react with strong opposition to that. And they object. They refuse. Then they’re taken down violently as “non-compliant.” Look at any police report today and you will see that word: “non-compliant.” In short, someone refused to be talked to or be treated like a criminal. The second you don’t submit to a cop’s demands, you are notched up as worthy of being kicked to the ground and hog-tied and even shot. I don’t care how law-abiding you are, the cops will take you down. They are taught they are justified in knocking you down because you were non-compliant and questioned their “command and control.”
Interestingly, the late United States Supreme Court Justice Antonin Scalia – a very pro-cop judge – wrote in many opinions that he took issue with this style of policing. He said he believed our nation’s founders wouldn’t have tolerated this treatment by cops for a second, either.
This is at the root of the problem. Cops think they have the right to control everyone and issue commands that must be obeyed. They don’t. If you tell them that, they will bow up and become hostile – even violently so. They call this beating on innocent, but non-compliant, people an “attitude adjustment.” They will kick you to the ground, slam you to the pavement, injure you badly, and then hog-tie you like an animal and then chuckle to each other, “I gave him an attitude adjustment.”
Further, cops are taught to lie to us. We are not allowed to lie to them. That’s a crime. The United States Supreme Court has said cops can lie to us to “further an investigation.” So, we’re placed in a position of submission to the cops. Cops are taught to never trust anything we say. They are taught to believe nothing. We are taught we are supposed to respect them and believe everything they say, especially when they’re on the witness stand. I’ve said for 20 years - you wanna see a cop lie? Put his hand on the Bible and then have swear him to tell the truth. Now sit back and watch the lies come out.
4) Cops now believe they are superheroes. It’s true. After 9/11, politicians lauded all initial responders to disasters with hero status. Cops were no longer public servants, they were an elite superhuman hero. This puffery caused an ever-inflating egotism that is pervasive in all post-9/11 cops all over the USA now. Add to that the command and control mantra and you have super-ego cops thinking they’re above us all. They’re akin to Superman.
This causes a complete disregard for the rule of law. Cops do what they want, when they want, and then get pissed off when you call them on it.
5) Most cops are stupid. It’s the truth. Most cops go through – and this will shock you – from between four to 18 weeks of training at police academy. Much of that time is spent teaching cop wannabes not to shoot themselves in the leg or foot when they’re drawing their pistols. When you read stories about the number of cops being shot in the USA annually, dig deeper. Most of these are self-inflicted shootings of their own leg or foot. It’s true!
That’s right! Imagine, the cop with all the military hardware who is barking at you to get on the ground for no reason may have had as little as one month’s training! No wonder they’re out of control.
Cops are usually high school graduates. Some departments, such as Denver Police Department, have raised standards and actively seek college graduates, but most departments don’t. Why? Money. You can pay a kid with a high school diploma a lot less than a fully-formed adult with a college degree. This results in a lesser quality police force.
Cops very often break the law they’re allegedly trying to uphold. They don’t read people their Miranda Rights. They violate search and seizure laws. They ignore (with the tacit approval of their commanders) case law which requires them to do or not do certain things during an arrest. They are taught to bend the rules to the breaking point to “enforce the law.” Enforce? That’s a problem right there. When you tell someone to “enforce” something, you imply autonomy. It’s the job of the courts to enforce the law, not the cops.
Interestingly, in 21 years of practicing law, I’ve had several run ins with cops in court where they were convinced they had a say-so in the outcome of a case. This is partially because many prosecutors grant to their officers more influence than they deserve. Cops will cross the bar of the courtroom to the area where lawyers and judges conduct business to try and browbeat the lawyers into whatever resolution they want. When I tell a cop, “look, you’re not a lawyer and you’re not a judge. You’re just a witness, go sit down,” they get livid. I once got into a heated confrontation with a cop who actually picked up a court file and tried to tamper with it.
6) Cops now have immunity from being sued. When Ronald Reagan was president, he pushed through legal reform that prevented cops from being sued for violating your civil rights. He said that it was unfair for any cop to have to worry about losing his home merely for violating the rights of the citizens. How inane is that? As a result, cops know they can break the rules – even break the law – when dealing with the public and they’re safe from being sued. When I was a cop, that threat of lawsuit made us circumspect – and it led to us being more careful not to arrest people who didn’t need arresting. Today cops arrest without fear of reprisals.
7) Our nation is awash in a gun-nut madness that is destroying us all. We are a nation of 330,000,000 people and we own 310,000,000 guns. Many of these guns are high-capacity, high-velocity semi-automatic pistols and rifles which are suitable only for military combat. Because we own them, the cops own them too. It’s like we’re Russia and the cops are China. A constant militarization of our culture puts us all at risk.
It’s ridiculous. People own guns that don’t need guns. Teens buy guns because of the threat of other teens who have guns. Adults buy guns out of fear of other adults who have guns. The cops buy bigger and badder guns out of fear of the teens and adults who have guns. And just this week, for the first time in history the cops in Dallas used a bomb to kill a suspect. A bomb? We've descended into near anarchy.
As a result, our nation is gripped with a paranoia that is terrifying. The pro-gun types believe in this hero myth of the lone armed American citizen taking down a terrorist or an "active shooter," saving the public from some evil-doer. This is a joke.
The reality is most people can hit their target only 15% of the time – and that’s on a shooting range. The odds are in a high-stress situation that 15% will drop to zero. Think on this: If armed, militarized SWAT teams can’t take down an “active shooter,” what makes you think you can with your gun? You can’t.
So, what’s wrong with our country is not easy to define, but it’s easy to see. We’re a police state where the public and the cops are militarized to the point of open warfare and we’re screaming at each other in such a way that everyone has their finger on the trigger.
This photo shows just how bad the situation is.
(Required by Alabama Law: No representation is made that the quality of legal services to be performed is greater than other lawyers.)
Saturday, January 23, 2016
Sunday, January 10, 2016
A couple of years ago my former law partner William L. Pfeifer, Jr. and I represented a man accused of incest and sodomy. He had been improperly convicted of incest because the statute of limitations had expired before his prosecution began.
Under Alabama law, there is no time limit to charge someone with rape, or with a sex offense involving a victim under the age of 16, but there is a three (3) year statute of limitations for other felonies including sodomy 1st and sodomy 2nd degree, sexual torture, sexual abuse 1st degree, sexual abuse of a child less than 12 years old, and incest. Alabama Ala. Code § 15-3-5(a)(4) & 15-3-1 (2006).
Bill was able to get the man’s incest conviction overturned and I was able to get his sodomy indictment dismissed for lack of evidence.
Recently, I had a client ask me about the status of incest laws. He told me he is having a sexual relationship and romantic relationship with his own adult daughter and they wanted to marry. They knew that incest is illegal in the United States, but they were curious about other countries. Honestly, at first I joked that we were not likely to find any countries which permitted sex between family members, much less marriage. Boy, was I wrong.
As I began my research, I was astounded to find that, in fact, many countries have no problem with intra-family sex or intra-family marriage, or both.
In Asia, legalized incest isn’t commonplace, but some of the largest societies in the region permit it. China is an emerging economic giant because the strict totalitarian Communist country has adopted Western market-based reforms. Interestingly, China has rejected Western morals relating to sexuality and the country permits consensual incestuous sex, but not incestuous marriage.
Interestingly, Hong Kong province expressly forbids heterosexual incest and incestuous marriage, but permits incestuous sex only between gays and lesbians over the age of 16. I wonder if that was a typo when they wrote the law!
India is open season for incestuous sex and marriage. There appears to be no legal or cultural prohibition against intra-family sex or marriage, and the country has virtually no age of consent laws. For years India’s permissiveness has caused consternation amongst westerners who posit that this foments child sexual exploitation. It is abundantly clear that India and it’s teeming population of one billion people are fine with the way it is.
Thailand is a country that culturally permits sex with children, despite some recently passed laws to curb the practice. While this issue continues to cause controversy in the international community, it is not a priority for the Thai population. Cultural norms permit incest even with children. While Thai leaders struggle with the growing international pressure to restrict and prohibit sex with children, the issue of incestuous sex among adults is clear. The government of Thailand permits incestuous sex between adults over 18 years of age but incestuous marriage is illegal.
Before you get the idea that those Asian cultures are unique in the world, consider this: Incestuous sex is legal in much of Western Europe and it has been for centuries.
France, Spain, Portugal, Belgium, Netherlands, and Luxembourg legalized incest in 1810, when Napoleon ruled. Apparently the diminutive Emperor felt incest was no big deal, and these countries have permitted intra-family sex for over 200 years. Intra-family marriage, however, is not permitted.
Sweden, a country that loves bureaucracy, allows incestuous sex but you have to obtain the government’s permission first. Imagine going by your local city hall and asking for that form!
In Russia, consensual sex between adults, including incest, is legal. Intra-family marriage is not allowed.
The Middle East is a complex place, and many cultural traditions permit incestuous sex, incestuous sex with children, and even incestuous marriage, but most of the Islamic governments officially forbid these practices. That said, Turkey has legalized consensual incestuous sex between adults.
South America, which is nearly 88% Roman Catholic, has only two countries which permit incest, but it’s two of the largest countries on the continent.
Argentina permits incestuous sex if both individuals are over the age of consent. Intra-family marriage is illegal.
Brazil permits incestuous sex if the participants are over the age of 14, but intra-family marriage is illegal, except when.... Oh man, is it complicated. In fact, Brazil loves bureaucracy more than even Sweden, and has a byzantine system of rules, definitions and prohibitions on incestuous marriage that will make your head spin. Some relationships, i.e. first cousins, are permitted to marry in some cases. So, isn’t that incest? Whew!
Only one country on the African continent permits incestuous sex. The Côte d'Ivoire (Ivory Coast) permits consensual incestuous sex between adults, but not marriage.
Remember, this article is informational only. If you want legal advice as to a particular country, consult a lawyer in that country. In fact, consult two. This article is not legal advice and this article doesn’t constitute an attorney/client relationship.
(Alabama law requires the following: “No representation is made that the quality of legal services performed is greater than other lawyers.”)