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Way back in 1971, President Nixon declared a “War on Drugs.” The federal drug control agencies were dramatically beefed-up, the DEA was created (1973). Quaint as it seems now, much of the effort was directed at marijuana. Back in those innocent days, marijuana was considered a major drug problem. By the 1980s the use of cocaine and its cousin, crack, became a major problem in this country. Cocaine usage increased by 700% just in the years 1978-1984. Many believed that marijuana was a gateway drug to these harder substances.

By the early 80’s, President Reagan, initiated get tough laws on drugs. “Zero tolerance” initiatives were the trend. It was during the 1980’s that this country’s prison began to fill with drug users. From 1980 to 1997, the number of people incarcerated for nonviolent drug offense increased eight-fold! The DARE program, an off-shoot of the War of Drugs was initiated in the 1980’s by Los Angeles Police Chief Daryl Gates, who was actually quoted as saying that casual drug users should be shot. (I’m sure he didn’t mean that literally but it sure did fit in with the “war” theme.)

By the 1990’s Presidents Bush and Clinton continued to escalate the so-called War on Drugs. The prison population continued to explode in great part because of the increasingly hysterical War on Drugs. Three-strikes laws became a thing and many who found themselves in prison for life under three-strikes laws were there because at least one of the strikes was a drug offense. I am not talking about cartel-type drug dealers, these were often drug users and addicts and no more.

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KNOCK AND TALK: A TACTIC POLICE USE TO BYPASS THE WARRANT REQUIREMENT

It’s the middle of the night. Someone is banging on your door yelling for you to open the door. Whoever it is does not identify himself and you do not recognize the voice. The adrenaline rushing, you grab the gun in your safe and cautiously open your front door with your gun in hand but pointed safely towards the floor. Just before you are shot dead, you see it was the police banging at your door. Sounds outrageous but that is exactly what happened to a Florida man, Andrew Scott, who committed no crime. In fact, the police were investigating a crime that had nothing to do with Mr. Scott. Accounts of the incident vary but Mr. Scott’s girlfriend, who witnessed the incident said Mr. Scott never even raised his gun and was retreating from the front door right before he was shot.

Now this incident, unfortunate though it was, was an isolated incident. The police tactic, known as “Knock and Talk” is an investigative tool used when the police have no search warrant but believe there is reason to search a residence so they knock and “request” to search the residence. While police often use this tactic, they usually don’t kill someone in the process but you can see how it could quickly escalate into a dangerous situation. The police don’t normally politely knock on your door and politely ask if they may search your premises. Polite requests are easy to decline. Rather, the police typically intimidate the resident by banging on the front door and staging a threatening presence, sometimes with many officers, guns drawn and sometimes even in SWAT gear as happened in a Michigan case over the dangerous crime of …. marijuana butter.

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Our system of justice is designed to be impartial and fair. But judges and juries are not robots. In any criminal case, the judge and jury will not only view the evidence with neutral eyes and ears but will also rely on “soft” skills such as intuition and biases. A perfect example of this is during the sentencing phase. When a defendant is convicted of a crime, the sentence he or she receives depends—perhaps too much—on the perceived remorse of the defendant.

We like to think that we are good at detecting the heart and minds of others. When an offender is convicted of a crime he or she will often be called upon to make a statement during sentencing. This is the opportunity for the now guilty offender to offer contrition and remorse. It is not uncommon to hear a judge or juror opine after such a statement that he or she didn’t believe the offender really meant it — that the statement was merely used as an opportunity. And, that may be true. But can the judge or juror, even when tasked with this awesome responsibility, reliably infer the offender’s true motives and emotions?

There is a well-known study called “mind in the eyes” —you may be familiar with this study. Scientists showed study participants various photographs of a pair of human eyes. The study participant was then asked to pick the mental state or attitude that best matched what the eyes expressed. The participant was given a list to choose from such arrogance, annoyed, upset, or worried. Supposedly the test determines how well a person can read the emotions of others simply by looking at (or some would say “in”) their eyes. Another way of putting this is that we intuit the emotions and mental state of others from what their eyes are “telling” us.

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JUVENILE JUSTICE REFORM

Not that long ago, 17 years ago to be exact, the voters in California were in a get tough on juvenile crime mood. Proposition 21, the Juvenile Crime Initiative, was passed by a wide majority of California voters. The proposition dismantled much of the juvenile justice system, sending many juveniles to adult court and ultimately to adult prison. It didn’t take long before key components of prop 21 were reversed by California voters when Proposition 57 passed this past November. Since passage of Pop 57, all but the most serious of juvenile crime cases are sent to the juvenile court. The juvenile may still end up before the adult court, but the juvenile judge must make that decision. Previously, many juvenile cases went straight to adult court.

California is not the only state to realize that most juveniles do not belong in adult courts and prisons. Treating juvenile crime as adult crime does little to “reform” the juvenile offender and perhaps has the opposite effect. When Connecticut stopped sending its 16-18 year old’s to adult court beginning in 2012, the state saw many positive effects, including a dramatic decrease in crimes committed by young adults aged 18-21; this effect no doubt having to do with the emphasis on intervention, rather than punishment of the under age 18 offender.

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LAWYER, LAWYER, YOUR PANTS ARE ON FIRE

In what must have been a bizarre spectacle in a Florida court, a defense attorney, while delivering his closing argument in an arson case, started fiddling with his back pocket and had to run out of the courtroom when smoke started billowing out of the pocket. Yes, the attorney defending an arson case found himself on fire. Incredibly, the attorney was in the middle of arguing in his closing statements that the defendant didn’t commit arson; rather, his car spontaneously caught on fire. And then right before the jurors’ eyes, the attorney’s pocket seemed to spontaneously catch on fire. The attorney returned to court wearing his now singed pants.

Sounds awfully suspicious to me but the attorney maintains that it was not a gimmick. Apparently, the attorney did have an e-cigarette in his back pocket and he blamed a faulty battery in the e-cigarette for the mishap. Despite the attorney’s denial that the pocket fire was planned, police and prosecutors are investigating the incident. Court officers seized the frayed e-cigarette batteries as evidence. There have been reports that e-cigarettes caught on fire and several of these incidents have even been recorded on video. So, maybe this was just an uncanny coincidence.

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A POWERFUL TOOL IN THE DEFENSE TOOLBOX: THE MOTION TO SUPPRESS

Here’s an interesting case that caught my eye: Narcotics officers in Colorado Springs observed a driver in his parked vehicle conducting what appeared to be a narcotics transaction. The officers made contact with the driver and after a brief struggle, they discovered a brown satchel containing cash and Ziploc bags near the vehicle. They then searched the vehicle and found controlled substances, firearms, and ammunition. The first question any good defense attorney would ask is, “What reasonable suspicion did the officers have for contacting and detaining the driver in the first place?” Why? Because the Fourth Amendment to the United States Constitution requires either a search warrant or a “reasonable and articulable suspicion” that the driver has violated the law before a vehicle can be searched. The courts have fashioned many exceptions to this requirement but if an arrest is the result of a search without a warrant and without probable cause or any of the enumerated exceptions, the entire arrest can be challenged by a motion to suppress.

The Colorado case is particularly interesting because of the facts: The police got a warrant to place a GPS tracking device on a vehicle, the vehicle was sold, and the new vehicle owner was the guy that ended up getting arrested. The police continued to track the vehicle even though there was evidence that they knew the vehicle had been sold. The officers testified that they surveilled the vehicle to see if the previous owner was still driving the car. It was during that surveillance that the new owner of the car was observed parking the car and was contacted by the officers, which ended up in the search of the vehicle and the driver’s arrest.

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DEPORTABLE CRIMES

With immigration a big topic in the news, many are confused about who exactly can be deported from the United States. It goes without saying that someone who is in the US without going through the proper channels, i.e., no visa allowing entry (undocumented), can be deported in most instances. Exceptions might be made on humanitarian grounds for example for asylum seekers and people who were born in another country but brought to the U.S. as children.

This post is about those who can be deported even though they are in the U.S. legally, whether on a visa, a resident alien, or categorized as an asylum seeker waiting approval or those who have been allowed to stay pending review of their particular case.

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CRIME RATES REMAIN STABLE THROUGH CALIFORNIA’S POLICY REFORM ERA

In 2011 the Public Safety Realignment Bill became law in California. This legislation was designed to stem the “revolving door” of non-violent criminals in the state prisons. Realignment, as it is commonly called, was in response to the severe overcrowding in California’s prisons and mandated by requirements set by the federal court. It resulted in major changes in the state’s criminal justice system is administered.

Essentially, realignment provided for offenders convicted of certain non-violent, non-serious crimes would serve their sentence in county facilities rather than the state prison system. It sounds as though the bill just off-loaded low-level felons from the state to the counties and in many respects, that is true. But Realignment is also focused on a reduction in recidivism and has provisions that allow house arrest and other alternative sentencing schemes.

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HOW TO BE A DRUG DEALER WITHOUT GETTING BUSTED

No, I am not really going to tell you how to break the law and get away with it, but Purdue Pharma certainly knows how to deal an extremely dangerous drug, which has been abused by millions in this country, without going to jail. I’m talking about the pain killer OxyContin. OxyContin is believed by experts to have been the synthetic opioid that triggered the serious epidemic of opioid abuse sweeping this country. No longer confined to certain areas of this country, the opioid epidemic is everywhere.

You might be familiar with OxyContin, maybe it was prescribed to you for pain, maybe you are even addicted to it. It is estimated that over the last 20 years, more than 7 million Americans have been or are now addicted to OxyContin and there are 2.1 million people in this country presently addicted to opioid painkillers; many of these addictions started with legitimate prescriptions for pain. OxyContin and similar opioids have killed almost 200,000 people in this country since 1999. I’ve previously discussed this terrible opioid epidemic, but how did this happen?

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Police use-of-force has been big news in this country for several years now. A large segment of the public believes that the police have used fatal force without just cause. They cite many high-profile cases: Michael Brown, Eric Garner, Freddie Gray, and so on. These police killings have triggered a storm of protests across the country, including in California. In some of these cases, the officer or officers involved faced possible charges of manslaughter or even murder. In virtually all of these cases, the decision as to whether to prosecute these officers is left to a secret grand jury proceedings. With few exceptions, the grand juries have found that an indictment of the officer is not supported by the evidence. The public often perceives the grand jury as biased in favor of the cops and there has been a high level of distrust in the grand jury system. It doesn’t help that the proceedings are held in secret.

California became the first state in the country to address the public’s distrust of the grand jury system as employed in officer-involved lethal force cases. In 2015, Governor Brown signed into law a bill, SB 227, prohibiting the use of grand juries in California when an officer has used lethal force under circumstances that are possibly criminal. Rather, if a cop was to be charged, the district attorney would have to directly file the criminal complaint and the case would proceed through an open preliminary hearing. Thereafter, charges by what is called an information would be filed by the district attorney if the evidence at the preliminary hearing showed a reasonable possibility that the officer’s use of lethal force was a criminal act. Prior to enactment of SB 227, California prosecutors had the option of going to the grand jury or directly filing charges by a criminal complaint.

Not surprisingly prosecutors opposed SB 277. They argued that the grand jury system, by the fact that it is held in secret, facilitates the discovery of the truth. The grand jury proceedings, they argued, permits them to compel witnesses to testify and “offer a fuller seeking of the truth for all sides. . ..” (SB 227 Arguments in Opposition.) Prosecutors also objected because they argued that if they could not use the grand jury as an investigation tool in police lethal force cases, it hampered their ability to properly investigate the incident.

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