America’s criminal injustice system

A 'Celebration of Life' after another innocent, mother of three, is killed by random gunfire in Oakland, California, 2015. Wikicommons/ Daniel Arauz.Once upon a time, I was a journalist,
covering war in Indochina, Central America, and the Middle East. I made it my
job to write about the victims of war, the ‘civilian casualties.’ To me, they
were hardly ‘collateral damage,’ that bloodless term the military persuaded journalists
to adopt. To me, they were the center of war. Now, I work at home and I’m a private eye –
or P.I. to you.  I work mostly on homicide cases for defense lawyers on
the mean streets of Oakland, California, one of America's murder capitals.

Some days, Oakland feels like Saigon,
Tegucigalpa, or Gaza. There's the deception of daily life and the silent
routine of dread punctured by out-of-the blue mayhem. Oakland's poor
neighborhoods are a war zone whose violence can even explode onto streets made
rich overnight by the tech boom. Any quiet day, you can drive down San Pablo
Avenue past St. Columba Catholic Church, where a thicket of white crosses, one
for every Oaklander killed by gun violence, year by year, fills its front yard.

Whenever I tell people I'm a private
eye, they ask: Do you get innocent people off death row? Or: Can you follow my
ex around? Or: What kind of gun do you carry?

I always disappoint them. Yes, I do
defend people against the death penalty, but so far all my defendants have
probably been guilty – of something. I
do defend people against the death penalty, but so far all my defendants have
probably been guilty – of something. (Often,
I can only guess what.) While keeping them off death row may absolve me of
being an accessory after the fact to murder, it also regularly condemns my
defendants to life in prison until they die there.

And I find spying on people their
ex-spouses fantasize about killing much sleazier than actual murder. Finally,
I'm a good shot, but I don't carry a gun because that's the best way to get

I work on the low-profile cases: poor
people charged with murder, burglary, or robbery, who don't have the money for
a lawyer or their own P.I. (I'm paid, if you can call it that, by the state.)

Then people invariably want to know: How
can you help defend a murderer? The law school answer is: the constitution
guarantees everyone a fair trial.

For me, however, if it's a death penalty
case, it's simple: I'm against the death penalty no matter what the accused did
(or didn't do). But in this age of stop and
frisk, racial profiling, mandatory
sentencing, the death penalty, and life without
parole, not to mention execution-by-cop, the real answer is: I can't. Defend anybody,
that is. Not really. 

I'm just a tiny cog in America’s vast
Criminal Injustice System. I'm just a
tiny cog in America’s vast Criminal Injustice System. One of the lawyers I work for sometimes calls himself "just a
potted plant." My defendants may be guilty – but seldom of what they are
charged with. They are rarely convicted of what they actually did and are never
sentenced fairly.

“He snapped”

One day recently, I was getting ready to
hit the Oakland streets in search of a witness to a murder when I found in my
email Justice Sonia Sotomayor's dissent in the Supreme Court Case of Utah v. Strieff.  It had been forwarded to me by a psychologist
with whom I once worked on a death penalty case.

Anyone lulled into thinking the new coalition of liberals and conservatives who hope to reform the
criminal justice system will actually get somewhere should read Strieff.
The facts are the following: a Salt Lake City cop was watching a home rumored
to house methamphetamine dealers. When Edward Joseph Strieff left the house,
the cop stopped him, questioned him, and checked his record. When the cop found
a warrant for an unpaid parking ticket, he searched Strieff, found meth in his
pockets, and arrested him for possession of drugs.  In Strieff and
other cases leading up to it, the Supreme Court has now decreed that evidence
gathered in an illegal search isn’t "the fruit of the poisoned tree"
as Justice Felix Frankfurter put it in 1939, and so no longer must be suppressed. Even
though gathered illegally, evidence can be used at trial against a defendant.

In short, stop-and-frisk policing and
racial profiling, key targets of the new civil rights movement, just got a stamp of approval from the highest court in the land. Stop-and-frisk policing and racial profiling just got
a stamp of approval from the highest court in the land.

Justices Ruth Bader Ginsburg and Elena
Kagan also dissented. But it was Sotomayor who sounded the alarm in an opinion
evoking nothing less than James Baldwin's The Fire Next
and adding quotations from W.E.B. Du
Bois, Ta-Nehisi Coates, and Michelle Alexander for good measure.

She wrote:

"The Court today holds that the
discovery of a warrant for an unpaid parking ticket will forgive a police
officer’s violation of your Fourth Amendment rights. Do not be soothed by the
opinion’s technical language: this case allows the police to stop you on the
street, demand your identification, and check it for outstanding traffic
warrants – even if you are doing nothing wrong. If the officer discovers a
warrant for a fine you forgot to pay, courts will now excuse his illegal stop
and will admit into evidence anything he happens to find by searching you after
arresting you on the warrant. Because the Fourth Amendment should prohibit, not
permit, such misconduct, I dissent."

And she concluded:

"This case tells everyone, white
and black, guilty and innocent, that an officer can verify your legal status at
any time. It says that your body is subject to invasion while courts excuse the
violation of your rights. It implies that you are not a citizen of a democracy
but the subject of a carceral state, just waiting to be catalogued.


“We must not pretend that the countless
people who are routinely targeted by police are 'isolated.' They are the
canaries in the coal mine whose deaths, civil and literal, warn us that no one can
breathe in this atmosphere.”

“We must not pretend that the countless
people who are routinely targeted by police are 'isolated.' They are the
canaries in the coal mine whose deaths, civil and literal, warn us that no one
can breathe in this atmosphere.”

Sotomayor's dissent describes daily
existence for my defendants. Too poor to buy car insurance, fix broken taillights,
pay parking tickets, or get green cards, they are always on high alert for the
police. (Alice Goffman's brilliant study, On the Run:
Fugitive Life in an American City
, describes just how it works in one of Philadelphia's poorest
neighborhoods). My defendants have been sentenced to life in a war zone even
before they find themselves charged in court. They have been sentenced to a
life without parole or sometimes to death, caught as they are in a crossfire
between cops and warring neighborhood gangstas.

A warrant for, say, unpaid parking
tickets discovered in a Strieff-approved stop gets you a search of
yourself and your car by police and maybe a bust for weed, the intoxicant of
choice for many of the poor. If you object or run or the arresting officer is
having a bad day, it may get you dead. (Refusing to pay protection money to
your neighborhood punks or standing on the wrong corner at the wrong time may
do the same.)

Once you're arrested, if you say you
want a lawyer, you get a public defender with so many cases she or he may not
even be able to meet you or read the complaint against you before you appear in
court. You may serve weeks or months in jail, even if you're innocent, before
your case is heard, and years before you are tried.

A district attorney (DA) has a whole
police department to use to investigate a crime (although the Oakland Police
Department, which I'm often up against, solves only 27% of its murder cases,
and so is not exactly the most formidable of foes). A recent
investigation by the East Bay
reveals that many Oakland cops are too busy hooking up with
underage prostitutes on Facebook and screwing them in police cars to solve
murders. But if a DA needs to find a witness, the OPD's army of street cops can
often locate him through their CIs (confidential informants), or they can pull
him in on a warrant for those unpaid parking tickets, threaten a drug bust or
revocation of his parole or probation, or hold him as a material witness if he
resists cooperating.

At best, a defendant gets just me – and
most of the accused don't get an investigator at all. At best, a defendant gets just me – and most of the accused don't get an
investigator at all. The landmark 1963
Supreme Court case Gideon v. Wainwright may have given poor defendants the right to an
attorney, but there is no legal right to an investigator (except in death
penalty cases). And unlike a DA, no one has to talk to me or face trouble with
the law. I have no muscle. But I have been known to find a witness who doesn't
want to be found and nag him or her into submission.

In the last 10 years, in cases mostly in
Northern California, among scores of people I've helped defend, only three have
been white — and they were as destitute as the poor blacks and Latinos who jam American jails and prisons.

Defense teams I've been on start off by
guessing if and why the accused might have done what he's charged with. It's
human nature to do so. But if the accused is pleading not guilty, it's better
not to know.

"I don't know what happened, I
wasn't there," one death penalty lawyer I work with regularly says to shut
off such speculation. As for the why, the shrinks often can’t help, even if you
call on them to testify. Decades of research into the criminal mind often comes
down to: "he snapped." That's not a good line for a jury, but it's the
kicker to many a defense meeting.

"It ain't just, but
that's how they do"

In a real trial, the truth of what
actually happened doesn't matter anyway. Only the truth of the evidence counts.

Are poverty, racism, and a desperate
childhood a defense? Prosecutors love to face this argument. They get on their
high horses and trot out the American dream and all the poor people who suck up
their rage and despair and don't murder someone.

All the folks who don't snap.

But in California, what might have
caused someone to snap isn't admissible at trial anyway, except in death
penalty cases. A "diminished capacity" defense was abolished in 1981
after ex-San Francisco Supervisor Dan White used one to beat a murder rap for
killing Supervisor Harvey Milk and Mayor George Moscone. The jury bought his
lawyer's argument – which came to be known as the "Twinkie defense" –
that White was addled by junk food when he killed the two of them. It ignored
evidence that White intended and planned the murder, taking his gun to City
Hall, climbing through a window to avoid metal detectors, and reloading it
after first shooting Moscone.

These days, only in the penalty phase of
a death penalty case – when the jury decides whether the defendant they've just
found guilty will face capital punishment or life in prison without parole –
can defense lawyers present evidence of the tragic facts of the defendant's
life. The jury may then hear of his years in foster care, his Mom the crack
addict, his Dad absent in prison, and the older brother who initiated him into
street life. Only then will the jury be asked to see the accused as a person
with a life beyond the crime with which he is charged. The defense will finally
replace a prosecutor's blown-up mug shot of the defendant and Facebook screen
shots of him showing off a gun with family photos of him at his sixth birthday
party decked out in a silly hat and others of his toddler and baby mama.

Most jurors don't much like this
defense.  They assume it's just an excuse.  But it's not.  It’s
an explanation.

Take Larry. He's an OG (original
gangsta, or old guy), a 50-year-old African-American man who grew up in dire
poverty in Deep East, Oakland's most murderous neighborhood. Larry has symptoms
of schizophrenia but has never been able to get real mental health care. He’s
been living, on and off, with his mother who is also schizophrenic in Acorn
(“The ‘Corn”), one of the toughest housing projects in West Oakland. His mother
is too afraid of its gangbangers to leave her apartment. Larry recently told a
counselor at a walk-in clinic for the poor that he thought he had PTSD from all
the shooting and killing he's witnessed.

Like many poor Oaklanders, he makes his
meager living in the underground economy, dealing small amounts of weed to
regular customers who phone him on his cell. While cell phones have made it
possible to sell drugs without the turf battles of the past, The 'Corn is ruled
by a gang of young punks called The Acorn Mob and their rivals, The Gashouse
Team. The Mob doesn't just support itself moving guns or drugs. It also makes
money ripping off small-time dealers like Larry, demanding protection money
from neighborhood people, and robbing the elderly when they cash their social
security checks.

Like many poor people living on such
mean streets, Larry is always looking over his shoulder. A simple walk down the
block might mean being rolled by The Mob, accosted by police, or caught in the
crossfire of someone else's feud.

In early 2012, Larry's life dropped off
a cliff. His brother died of cancer; his daughter died in a freak case of
emergency room malpractice; he witnessed a friend gunned down in a gang battle;
and he was robbed at gunpoint on a street near The 'Corn. Meanwhile, the Acorn
Mob was stepping up pressure on OGs like Larry to pay them protection money.

As Larry tells it, one morning that
August, two of the most vicious Mob gangbangers dogged him on the streets
around The 'Corn, demanding to know when he'd take up a collection from his OG
buddies to pay them off. He took shelter along with his crew in a friend's
apartment in one of the project’s towers. When he told his friends about the
latest threats, the group debated what to do, damping their fears by smoking
weed and drinking mai tais.

Later, near dark, Larry and his friend
Arthur wandered over to the local liquor store to buy the cigarillos they
filled with weed to make blunts.  On the way, the same two Acorn Mob punks
who had accosted them earlier that day threatened to kill Larry if he didn't
come up with some money fast. Larry and Arthur sought refuge in the store, but
one of the young thugs followed them inside. The other waited outside the door.

Larry had had enough. He snapped. He
grabbed an old handgun Arthur carried for protection and ran out of the store.
He says he fired once, hoping to scare off the two of them. That started a
volley of wild shots. When Arthur's gun jammed, Larry ran back inside the
liquor store. As soon as the shooting stopped, Larry and Arthur split the
neighborhood. Somehow in the melee, one of the Acorn mobsters was shot and
later died at the county hospital.

Larry and Arthur were arrested some
months later. Larry was charged with murder and Arthur with being a felon with
a gun and an accessory with knowledge of a crime. Word on the street was that
the victim had been killed accidently by his own cousin, the gangsta who had followed
Larry into the liquor store. Even the victim's stepfather told me he believed
that. But no witness – and there were many standing outside the liquor store
during the melee, including several of Larry's buddies – would come forward.
They all had records, were doing drugs, and were afraid of the police.

Six cartridges from one gun and a single
cartridge from another were found in the street near the body. Neither gun was
ever found. The victim had suffered a "through and through" wound,
which meant there were no bullet fragments to match to a particular gun anyway.

California's self-defense and
provocation laws – unlike Florida's "stand your ground law," which figured in George
Zimmerman's killing of Trayvon Martin – are very strict. Larry's lawyer worried
that a judge would rule self-defense couldn't be justified because Larry had
fired the first shot (even if it was, as he claimed, in the air). His possible
PTSD, the recent dire tragedies in his personal life, the pressures of
Oakland's mean streets, the fact that his mind was addled by weed and mai tais
– all would be irrelevant in a California trial.

So Larry didn't have the luxury of a
Twinkie defense. He feared a jury. No poor person gets a jury of his or her
peers. Few poor people are called for jury duty because the lists of potential
jurors are made up from voter and drivers' license records; few poor people
living the fugitive life vote and many don't have a driver's license. Coming to
court might mean being stopped and frisked by the police. (I've had a defense
witness arrested on a warrant while waiting to testify outside court and others
who have been followed home by the police after they showed up to support a
family member on trial.) No
prosecutor would permit anyone on a jury who's led the kind of life Larry has. No prosecutor would permit anyone on a jury who's led
the kind of life Larry has – someone with a drug record (even if 20 years old),
or who understood life and death in Oakland's war zones firsthand.

Larry feared mandatory sentencing, which
severely restricts a judge's ability to vary a sentence by taking into
consideration mitigating facts in a particular person's life like Larry's clean
record for the last 20 years, his possible PTSD, or the daily grind of violence
in The 'Corn. That meant he was facing 25 years to life if convicted of murder.
For defending himself. For firing one shot when it wasn't even clear who had
killed the victim.

Larry took a plea to a killing he may
not have done. Voluntary manslaughter with a mandatory sentence of 12 years in

The Acorn Mob youngster who threatened
Larry in the liquor store that August night and probably fired the fatal round
was soon arrested for many armed robberies and sent to prison for 15 years.

I saw Larry right before he left the
county jail for prison. I apologized for not being able to defend him. He
thanked me for trying and added, "It ain't just, but that's how they

This piece is reposted
from, published on August 16, 2016, with that site's permission.

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