Assembly Passes Bill Sparked By Caylee Anthony Murder Case

The Assembly approved new parental obligations today in response to a much-publicized Florida case in which Casey Anthony waited a month to report her 2-year-old daughter missing but ultimately was acquitted of her murder.

Assembly Bill 1432 would make parents or guardians guilty of a misdemeanor if they knowingly fail to report, within 24 hours, the disappearance of a child younger than 14. Maximum penalties would vary, however.

Offenders could be jailed for a year and fined $2,000 for failing to report the death of a child from crime, or one who is missing under circumstances that would suggest danger.

Violations stemming from disappearances in which no danger of physical harm exists would be punishable by maximum jail sentences of six months and fines of up to $1,000.  

The bill declares itself "Caylee's Law."

AB 1432, by Assemblywoman Holly Mitchell, D-Los Angeles, passed the Assembly with bipartisan support, 66-3. It now goes to the Senate. If signed into law with two-thirds support from the Legislature, the measure would take effect immediately.

Judge Strikes Parole-Revocation Provisions In California Law

A Sacramento federal judge has struck down as unconstitutional the part of California's so-called Victims' Bill of Rights that governs parole revocation.

The law, enacted by voter approval of a 2008 ballot initiative known as Proposition 9, was a sweeping amendment to the state constitution, conferring a long list of entitlements on crime victims. The sections dealing with parole revocation were made part of the state's Penal Code.

U.S. District Judge Lawrence K. Karlton ruled last Tuesday that those sections fall short of providing the minimum due process guaranteed by the Constitution and two U.S. Supreme Court decisions, Morrissey v. Brewer – a landmark in 1972 – and Gagnon v. Scarpelli one year later.

The requirements missing from California's law include "a written summary of the proceedings and of the revocation decision, the opportunity to present documentary evidence and witnesses, and disclosure to the parolee of the evidence against him," Karlton wrote in a 26-page order.

The judge held that an injunction he issued in 2004 as part of a now-18-year-old, still-ongoing class-action lawsuit on behalf of parolees is "necessary to remedy constitutional violations created" four years later by the voters.

The judge found to be unconstitutional the provision of Proposition 9 that parolees have a right to an attorney at the state's expense only if the parolee is indigent and appears incapable of speaking for himself. Karlton said the California law overly restricted a parole agency's discretion and allowed a parolee to go uninformed of his right to request counsel.

Most importantly, Karlton added, a right to a lawyer is presumed if the parolee makes a credible claim that he did not violate parole, or a credible claim of mitigating circumstances. Thus, Karlton concluded, his injunction "is a properly tailored remedy, aimed at curing violations of due process rights."

Karlton next targeted the state law provisions entrusting to the Board of Parole Hearings "the safety of victims and the public," and prohibiting the board from weighing the cost or burden to the taxpayers that may result from continually sending people back to prison.

The judge said his injunction directs the board to use remedial sanctions rather than parole revocation when appropriate, thus reducing the number of returnees and the overall inmate population – the latter being a Supreme Court-mandated goal.

The law further violates the Constitution by denying a parolee a "neutral and detached" hearing body to make parole revocation decisions, Karlton stated.

The state places "a thumb on the scales of justice and tips the balance towards incarceration. By entrusting the board only with the safety of victims and the public, (the law) strips the board of its duty to balance those factors with a parolee's liberty interest," the judge wrote.

Yet another part of the law allows the unconditional use of hearsay evidence at parole revocation hearings, denying a parolee the "right to confront and cross examine adverse witnesses … unless the government shows good cause," Karlton said.

Only two paragraphs of the parole revocation statute were left standing. Karlton decided they are not viable by themselves, so "no portion of the statute can be preserved."

One of the proposition's requirements survived and will be included in Karlton's injunction: that a revocation hearing be convened no later than 45 days after the placement of the parole hold, as opposed to the 35 days required by the injunction.

"Lady Lawyer"

It takes a streak of steely determination to challenge the status quo — and no one knows that better than Connie Rice, one of America's most renowned civil rights attorneys. Her new book, "Power Concedes Nothing: One Woman's Quest for Social Justice in America, from the Courtoom to the Kill Zones," reveals the inspiring life of an indomitable woman.

Rice’s race for excellence began at home: Her father broke racial barriers as a U.S. Air Force major, and her mother imbued her with a passion for learning and culture. Her worldview was shaped by moving to 17 different homes during her childhood, including periods in England and Japan. After college at Harvard and law school at NYU, where she spent summers working on high-profile death penalty litigation for the NAACP Legal Defense and Education Fund, Rice began the work that would win her national acclaim for her stirring defense of civil rights.

Over the course of her career, the "Lady Lawyer" (as Rice would come to be known to the Los Angeles gang members with whom she struck a pioneering partnership) would take on racism and sexism in the LAPD, a transit system that tried to ignore its poorest users, and a public school system that Rice and her cohorts deemed inadequate. But she is perhaps best known for the report she co-wrote that has revolutionized the city’s law enforcement policies and outreach to gangs.

Her constant involvement with the LAPD ultimately yielded the consummate reward: her very own parking space at headquarters. LAPD Chief Charlie Beck calls Rice "the conscience of the city."

Rice will be interviewed about her book and her stories of life in the trenches of civil rights law by Joel Fox, who has been an opinion-maker and a unique voice in California politics for decades.

"Power Concedes Nothing" will be for sale at the event, and Rice will be available to sign copies.

Connie Rice is co-founder and co-director of the Advancement Project. She has received more than 50 major awards for her leadership and her non-traditional approaches to litigating major cases involving police misconduct, employment discrimination and fair public resource allocation.

The event is being sponsored the Milken Institute and takes place January 31, 2012 ~ visit www.milkeninstitute.org/ for more information.

U.S. v. Jones ~ Important Decision On Technology and Privacy

Read the opinion here:
http://www.supremecourt.gov/opinions/11pdf/10-1259.pdf

Ginsburg Opinion Rejects Due Process Inquiries On Eyewitness IDs ~ Sotomayor Dissents

The Supreme Court declined Wednesday to extend constitutional safeguards against the use of certain eyewitness testimony at trial, despite concerns that eyewitness identification plays a key role in innocent people going to prison.

In a case dealing with a narrow slice of the issue of identifying a suspect, the court voted 8-1 to uphold the theft conviction of Barion Perry in New Hampshire state court. Perry argued that courts should be able to exclude eyewitness testimony when identifications are made under suggestive circumstances, even when there is no evidence of manipulation by the police.

Judges already can bar testimony when the police do something to influence a witness to identify a suspect.

Justice Ruth Bader Ginsburg said in her opinion for the court that in cases with no police misconduct, lawyers can cross-examine a witness and juries can weigh the reliability of the testimony.

Ginsburg said a prime reason for excluding such testimony when the police are involved is deterrence. "Where there is no improper police conduct, there is nothing to deter," she said.

Other factors apart from suggestiveness also lead to mistakes by eyewitnesses, Ginsburg said. The suspect's race, poor vision, the passage of time, stress and the duration of the encounter all may bear on the reliability of an identification, she said.

Justice Sonia Sotomayor wrote a dissenting opinion in which she said her colleagues should have been more concerned about the reliability of eyewitness identifications than police deterrence.

"The empirical evidence demonstrates that eyewitness misidentification is the single greatest cause of wrongful convictions in this country," Sotomayor said.

The court first warned of the dangers of eyewitness testimony in the 1960s, saying eyewitness identifications can have a powerful influence on juries, but also could be untrustworthy.

More recent evidence has only bolstered arguments about the danger of relying on what people think they saw. The vast majority of the nearly 300 people exonerated through the use of genetic evidence were convicted at least in part on the basis of eyewitness testimony, according to the Innocence Network, which works on behalf of convicts who claim newly discovered or untested evidence can lead to their exoneration.

In Perry's case, police were questioning a woman who said she saw someone break into a car in the parking lot of her apartment building. Unprovoked by the police, the woman identified Perry from her apartment window as he stood in the lot with a police officer. Perry tried to keep her from testifying, arguing that she picked him out only because he was standing beside an officer.

The trial court allowed the testimony and the New Hampshire Supreme Court upheld Perry's conviction.

The case is Perry v. New Hampshire, 10-8974.

Highlights and Lowlights Every Criminal Defense Practitioner Should Know For 2012

While there are many others that deserve an honorable mention, included here are the most important, interesting, or representative California bills passed in 2011, that affect criminal law and procedure. These new laws are effective and operative on January 1, 2012.

• An amnesty program for infraction fines and bail (50% off) established in 2010 becomes operative Jan. 1, 2012 to Jul. 1, 2012. An amendment this year permits counties and the local court to agree to extend this to fines and bail for misdemeanor VC violations and related failures to appear or pay.

• Realignment, which became effective on October 1, 2011, is the major new law this year. Its most important feature is that the sentence for hundreds of low-level felonies have been realigned from state prison to county jail.

• The Deadly weapons statutes were rearranged into a new Part 6 of the Penal Code, Sections 16000. Enacted 2010, Effective Jan. 1, 2012.

• The jury must now be admonished not to “conduct research, disseminate information,” about the case until the case is over; the court must “clearly explain” that these prohibitions apply “to all forms of electronic and wireless communication.” Violation of this admonishment is a misdemeanor contempt of court.

• A fourth DUI in 10 years may result in a ten–year driver’s license revocation; starting Jan. 1, 2012.

• SB 40, the “Cunningham fix”, sunset extended to Jan. 1, 2014. When the U.S. Supreme Ct. held in Cunningham v. California (2007) that California’s Determinate Sentencing Law was unconstitutional because it made the presumptive term the middle term, but permitted the court to give the aggravated term based on facts not admitted by the defendant, nor constituting a prior conviction, nor found by the jury. The legislature quickly fixed that by making the middle term no longer the presumptive term. That was a temporary fix, but its sunset date has been extended to January 1, 2014.

• The Revised Rules of Professional Conduct adopted by the State Bar in 2010 are still not operative because they still have not been fully submitted to the California Supreme Court for approval. The bar has announced plans to submit the new rules soon.

• Preservation of assets provisions, such as forfeitures, are provided for very large multiple frauds, or large takings in elder abuse cases.

Plan To Change CA's Three Strikes Law Moves Toward November Ballot

California voters may once again have the opportunity to change the state's three-strikes mandatory-sentencing law.

An initiative to change the law has been cleared to gather petition signatures, a potential step toward the November ballot. The proposed change would reduce the sentences of some currently serving time, and reduce prison time for those who are convicted of nonviolent felonies and already have two prior felony strikes.

In an economic analysis of the measure, the state's legislative analyst said the initiative, if passed, would save the state money but could increase costs for local governments.

"The changes would result in state prison savings, potentially ranging up to the high tens of millions of dollars annually in the short run, possibly growing in excess of $100 million annually in the long run," the analyst's report said. At least some of those savings would be offset by increased court and jail costs for counties, the analyst wrote.

Proponents of the measure must now gather more than 500,000 signatures to qualify for the ballot. California voters rejected a change in the law in 2004.

Innocent But In Jail

Last week provided yet another reminder of just how serious the problems are in the Los Angeles County jails. As if reports of assaults on prisoners by sheriff's deputies were not disturbing enough, a Times investigation has revealed that more than 1,400 people over the last five years were wrongfully incarcerated. Some were held for days, others for weeks. All were cases of mistaken identity, in many instances made worse because protests of innocence were disregarded. In one case, a construction worker with no prior arrests said he was assaulted by inmates and ignored by deputies. In another, a man whose identity was stolen by his brother pleaded with deputies to check his wallet, where he kept a judge's order indicating that a warrant with his name on it had been wrongly issued. But his jailers refused. He was booked and his fingerprints scanned. Deputies found no matching prints, even though the warrant indicated that prints were on record, according to his lawyer. Yet he was held for days.

Those are cruel deprivations inflicted on innocent people, and they should spur Sheriff Lee Baca and his department to adopt safeguards for ensuring that they have the right people behind bars.

To be fair, the problem isn't limited to Baca's department. Similar mistakes occur in jails throughout the state. And in many cases, suspects who arrived at Los Angeles County jails had been arrested by other law enforcement agencies and undergone previous rounds of checks, including confirmations of name, date of birth and other identifying information used in warrants. What is clear, however, is that the department's rules for dealing with such claims are deficient.

The department's written policy requires that deputies investigate claims of innocence involving warrants issued by judges. But it does not set strict time lines or establish rules for handling such claims in cases that do not involve warrants. The Times' investigation concluded that deputies followed the rules in only a fraction of cases in which wrongfully jailed individuals were eventually released by courts. Baca has pledged to form a task force to investigate the problem.

That's fine, but the proliferation of task forces examining problems in the county jails — there's already one looking into allegations of deputy abuse — in an important sense misses the point. For years, monitors and others have highlighted failings in the management of the jails. What Baca needs now is not another task force to help him see what's wrong; it's to revisit the recommendations for improvement and aggressively implement them.