Change is in grassroots...

Occupy Wall Street= Change that America deserves
http://www.cnn.com/2011/10/05/opinion/rushkoff-occupy-wall-street/index.html

Role of judiciary

The question on the role of judiciary is frequently entertained and analyzed. Some groups uphold the conservative approach that requires judges only to 'interpret' the law, expound on the law, not change it. Others are of the more liberal approach that judges are to 'make law', because the elected officials cannot do the 'right' thing facing their political constituents. The cause of the minorities historically has been advanced by the judiciary.

Two problems with this distinction. First, in one sense, 'interpretation' of the law cannot be really done without some implicit/explicit making, remaking, fashioning of the law. It is an absurdity to even argue that judges should not 'make' law, especially in the background of the American case-law bound system. Statutes are only the skeleton of the 'law', and the cases are the muscles, tissue, organs, etc.

Second, and conversely, there is no longer any real separation of judiciary with legislative or executive bodies. In the recent years in the United States there has been a very prominent erosion of historic boundaries among the three branches of the government at all levels, local, state and federal. Judges now are in the same position as the legislators in that any decision/ruling they make is subject to immediate political consequences/repercussions. The idea of 'checks and balances' and 'separation' of powers that held together the fabric of this country for at least two hundred years has been discarded. Because the judges feel directly accountable to the public for their rulings, they feel compelled to act like legislators, to please their constituents. That translates into an 'inactive' judiciary that will really not take upon doing the 'right' thing even when it is unpopular. So, really the concept of 'judge-made' law is outdated...

An independent judiciary was to serve several goals, one of which was to protect minorities against the 'tyranny of the majority.' It was also to ensure that the Constitution was interpreted independent of political expediency, public whim and caprice... After all, the Constitution is a document that was created for all times and ages, and was not to be pushed back in favor of particularistic interests of either the government or the people. Judges were supposed to guard and watch the Constitution essentially against the greedy encroachments of various human groups, elements, structures, each demanding their own selfish interests.

But of course the Constitution is also a living document, that needs to be placed in the context of the problems that arise in modern times. Interpretation of the Constitution cannot be in the void, without regard to the demands and needs of the society. Because judges are after all human, and products of their society, the interpretation of issues of constitutional dimensions is highly volatile, arbitrary and dependent on many variables, such as personalities, predispositions, political views of judicial officers. Therefore, it does not really make any difference to argue whether judges should be 'active' or not. Either way, they are going to be 'active' whether they choose or not, insofar as they are instrumental in 'expounding' a living document, such as a Constitution. They can be 'active' in perpetuating the status quo, as it is laid down by the legislature and the people, by giving constitutional validity to the status quo. That is a very 'active' role. In the most fundamental sense, after all they are the ones who create the 'case law'.

• It is emphatically the province and duty of the judicial department to say what the law is...If two laws conflict with each other, the courts must decide on the operation of each...This is of the very essence of judicial duty.


o Marbury v. Madison, 1 Cranch, 1317 (1803).

• The people made the Constitution, and the people can unmake it. It is the creature of their own will, and lives only by their will.

o Cohens v. Virginia, 6 Wheaton (19 U.S.) 264, 389 (1821).

• We must never forget that it is a constitution we are expounding.

o 4 Wheaton 316, 407.

• This provision is made in a constitution, intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.

o 4 Wheaton 316, 415.

• Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.

o 4 Wheaton 316, 421.

[Justice John Marshall]

Liberty and 'liberty'

"Free people, remember this maxim: we may acquire liberty, but it is never recovered if it is once lost."

"Man is born free, and everywhere he is in shackles."

"Liberty is obedience to the law which one has laid down for oneself..."
[Jean Jacques Rousseau]

Sailing forward... unfettered...

I do solemnly swear that as an attorney and as a Counselor of this Court, I will conduct myself uprightly and according to law, and that I will support the Constitution of the United States.

"The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilization of any country. A calm dispassionate recognition of the rights of the accused, and even of the convicted criminal against the state; a constant heart-searching by all charged with the duty of punishment; a desire and an eagerness to rehabilitate . . .; tireless efforts toward the discovery of creative and regenerative processes; unfailing faith that there is a treasure, if you can only find it, in the heart of every man. These are the symbols which . . . mark and measure the stored-up strength of a nation . . . proof of the living virtue in it"--[Winston S. Churchill, in a speech delivered in the House of Commons in 1910 while he was Home Secretary.]
 
"You have enemies? Good. That means you've stood up for something, sometime in your life." [Winston S. Churchill]
 

Crime and punishment

"The purpose of punishments is not to torment and afflict a sentient being or to undo a crime which has already been committed. Far from acting out of passion, can a political body, which is the calm agent that moderates the passions of private individuals, harbor useless cruelty, the tool of fury and fanaticism or weak tyrants? Can the cries of the poor wretch turn back time and undo actions which have already been done? The purpose of punishment, then, is nothing other than to dissuade the criminal from doing fresh harm to his compatriots and to keep other people from doing the same. Therefore, punishments and the method of inflicting them should be chosen that, mindful of the proportion between crime and punishment, will make the most effective and lasting impression on men's minds and inflict the least torment on the body of the criminal." [On Crimes and Punishments by Cesare Beccaria, 1764]

"In enforcing this punishment [of life imprisonment] in the Federal Republic, state officials are under a duty not merely to incarcerate but also to rehabilitate the prisoner through appropriate treatment... The court on several occasions has maintained that rehabilitation is constitutionally required in any community that establishes human dignity as its centerpiece and commits itself to the principle of social justice. ... The condemned criminal must be given the chance, after atoning for his crime, to reenter society... ... the state strikes at the very heart of human dignity if '[it] treats the prisoner without regard to the development of his personality and strips him of all hope of ever earning his freedom... ... [a hope] which makes the sentence bearable in terms of human dignity. [Constitutional Jurisprudence of the Federal Republic of Germany. Life Imprisonment Case, (1977) 45 BverGE 187.]

'Totality of circumstances' or 'unbridled discretion?'

Test for reasonable suspicion:

"An officer may make an investigatory stop if he is aware of specific, articulable facts which, together with objective and reasonable inferences, form a basis for suspecting that the particular person detained is engaged in criminal activity. The officer must consider the 'totality of circumstances-- the whole picture'. The facts are to be interpreted in the light of a trained officer's experience. They must, however, be more than the mere subjective impressions of a particular officer. Permissible deductions or rational inferences must be grounded in objective facts and be capable of rational explanation; 'while an officer may evaluate the facts supporting reasonable suspicion in light of his experience, experience may not be used to give the officers unbridled discretion in making a stop." U.S. v. Hernandez-Alvarado, 9th Cir. (1989), 891 F.2d 1414.

The so-called 'totality of circumstances' test that was elaborated in U.S. v. Sokolow (1989), 490 U.S. 1 and was later affirmed in U.S. v. Arvizu (2002), 534 U.S. 266, allows officers/courts to add up a number of seemingly innocuous and innocent factors to create 'reasonable suspicion' of criminal activity. In fact, 'totality of factors' is the most favorite term of the law enforcement. It is really bootstrapping and subversion of the principles of Fourth Amendment. If each of the factors described by the officer is susceptible of innocent explanation, how can their mathematical add-up amount to criminal activity? The process though was not meant to be that simple. Supposedly, the whole process of adding-up and deductive analysis should be rational, not subjective and grounded on specific facts. Officers experienced in the field of testimony come to court with formulas, ready stories. It simply shocks me how often they offer the same story, same terminology, same pattern of conduct and same analysis over and over again. They are trained to amalgamate the facts into their formulas. Facts that happen in the real world are subservient to their training and they analyze those facts, if they have such capacity, through the lens of their training, experience and policies. Experienced officers never just relate or recite the facts as they happened. They only tell those facts that they believe should have happened... It amazes me how many times when I ask an officer a specific question regarding the incident, he starts off by saying, 'I usually do this...' or 'It is my custom/practice to do this...' I repeat my question, 'I am not interested in what you usually do... What did you do on this particular occasion when arresting my client?' Often they say, 'I don't specifically recall.' They don't recall because they are trained like automatons not to recall what exactly happened but only what should have happened.

If you are supposed to read Miranda rights before questioning someone in custody, you usually do that. But did you do it on this occasion?

If you are supposed to formulate the facts amounting to reasonable suspicion of criminal activity before and at the stop, did you do it on this occasion? Did you simply find out those facts after the stop but wrote in your report as if you knew them before the stop?

Officer experience and training then drive the whole Fourth Amendment analysis. Their credibility, highly suspect, as very biased witnesses, is accorded a lot of weight by courts in deciding if someone's freedom from government interference should be respected. One would hope that courts were less naive and less deferential to such highly biased witnesses, who are caught lying with shocking regularity in our criminal justice system. Is it worth it? Don't the courts often think that this erodes the integrity of the entire system? If we are going to depend on the law enforcement for our safety and protection, doesn't it make you feel quite unsafe and quite unprotected knowing that they lie with impunity... I don't think, securing a conviction of one man is worth jeopardizing the entire system.

Credibility aside, even with the most honest and well-meaning officer, very well trained and conscientious as a witness, is it a good idea for us to surrender the freedoms secured to us to such an elusive concept as 'totality of factors?'

A: 'M'am we look at the totality of factors.'
Q: 'Totality of what factors, officer? Can you please enumerate all the factors, one by one, 1, 2, 3, 4, as to why you believed my client was engaged in criminal activity.'
A: He was wearing a hat with a 'G' on it.
Q: Is wearing a cap with a G necessarily point to his allegiance to the gang?
A: No.
Q: What else?
A: He was wearing oversized pants.
Q: Does that point to gang membership?
A: No.
Q: What else?
A: He was wearing tennis shoes predominantly worn by gang members.
Q: Does that amount to gang membership?
A: No.
Q: Next.
 A: He was pacing up and down the street in front of a known gang hang-out.
Q: Does that tell you that he is a member of that gang?
A: No.
And so forth.
At the end of all factors described that are not by themselves enough to suggest membership in the gang, officer will opine that 'your client is a member of that gang and I stopped him because I formed the opinion he was in violation of the gang injunction.'
Totality of innocent factors may indeed amount to a crime...

Reasonable suspicion v. probable cause...

"'The infringement on personal liberty of any 'sezure' of a person can only be 'reasonable' under the Fourth Amendment if we require the police to possess 'probable cause' before they seize him...'

The fears I voiced in Terry about the weakening of the Fourth Amendment have regrettably been borne out by subsequent events. Hopes that the suspicion test might be employed only in the pursuit of violent crime-- a limitation endorsed by some of its proponents-- have now been dashed, as it has been applied in narcotics investigations, in apprehension of 'illegal' aliens, and indeed has come to be viewed as a legal construct for the regulation of a general investigatory police power. The suspicion test has been warmly embraced by law enforcement forces and vigorously employed in the cause of crime detention. In criminal cases we see those for whom the initial intrusion led to the discovery of some wrongdoing. But the nature of the test permits the police to interfere as well with a multitude of law-abiding citizens, whose only transgression may be a nonconformist appearance or attitude. As one commentator has remarked: 'Police power exercised without probable cause is arbitrary. To say that the police may accost citizens at their whim and may detain them upon reasonable suspicion is to say, in reality, that the police may both accost and detain citizens at their whim.'"

Justice Douglas, concurring in United States v. Brignoni-Ponce, (1975) 422 U.S. 873.

What is in the name?...

As April 24th, the Armenian Genocide Remembrance Day, is fast approaching, it is appropriate to ruminate on the origins of the word 'genocide.' The word 'genocide' did not exist until 1944. It was invented by a lawyer named Raphael Lemkin, a Polish Jew who fled the Germans during World War II. Genos is the ancient Greek word for the 'tribe,' and -cide is a suffix that means killing. It was his term to describe the barbaric 'crime without a name.' His focus was on the idea that this 'crime' was the destruction of entire peoples, not just a number (even large) of human beings. When in 1921, Soghomon Tehlirian shot and killed Talaat Pasha, one of the masterminds of the Armenian genocide, in Berlin, Raphael Lemkin began his campaign to have genocide declared a crime. Allegedly Lemkin as a student asked his professor why Talaat Pasha had never been prosecuted. When he was told that there was no law that technically prohibited states from killing their own nationals, he was shocked, "It is a crime for Tehlirian to kill a man, but it is not a crime for his oppressor to kill more than a million men? That is most inconsistent."

It was Lemkin's efforts that made 'genocide' an international crime, codified first in Nuremberg indictments and later in the Convention on the Prevention and Punishment of the Crime of Genocide. The definition of 'genocide' legally is very different from other crimes against humanity. 1) Genocide is a specific intent crime, unlike other crimes against humanity, which require only general intent. 2) Genocide requires an attack on specific protected groups-- racial, religious, national or ethnic. Crimes against humanity merely require an attack against civilian populations, even if these are not protected groups. 3) Genocide requires intent to destroy the protected group as 'such.' Lemkin's theory was that destruction of a group, such as a nation, is a profound loss to the humanity and thus, is a crime above all crimes.

"Nations are essential elements of the world community. The world represents only so much culture and intellectual vigor as are created by its component national groups. Essentially the idea of a nation signifies constructive cooperation and original contributions, based upon genuine traditions, genuine culture, and a well-developed national psychology. The destruction of a nation, therefore, results in the loss of its future contributions to the world." "Our whole heritage is a product of the contributions of all peoples. We can best understand this when we realize how impoverished our culture would be if the so-called inferior peoples doomed by Germany, such as the Jews, had not been permitted to create the Bible, or to give birth to an Einstein, a Spinoza; if the Poles had not had the opportunity to give to the world a Copernicus, a Chopin, a Curie; the Czechs, a Huss, a Dvorak; the Greeks, a Plato and a Socrates; the Russians, a Tolstoy and a Shostakovich." [Raphael Lemkin]

The distinctive characteristic of the 'genocide' from other international crimes is very important. It was the hatred of a specific group, 'Armenians', by Turks that fueled and drove the annihiliation of 1.5 million of Armenians. It was the targeting of a very specific group, 'Jews,' that resulted in the Jewish Holocaust. It was also the targeting of Tutsis by Hutus that was the force behind the Rwandan genocide. It is a very specific intent, to exterminate a very specific group of people. That factor elevates and distinguishes genocide from the rest. Why is it a 'crime' above all crimes? By its nature it sounds unbelievable. How can a group of people dare to even contemplate to exterminate another group of people! It assails the very essence of humanity... It is so antithetical to the moral 'code' upon which the humanity is established that one cannot comprehend it, nor tolerate it! Well, of course, killing of a single human being is by itself inhuman and beastly.  Wars are crimes by their very nature... In fact, under international law an armed conflict is acceptable only for self-defense! The philosophical distinction of the 'genocide' is in the idea that this crime is targeting a group of people for its destruction... The idea of wiping out an entire 'nation' is mentally and emotionally abhorring. That is the reason Lemkin was so driven to crown this crime with a special legal meaning. The goal was to make it an international crime-- its commision with severe legal consequences, i.e. prosecution by international tribunals. The magnitude of the act of extermination of a single group is such that indeed requires a special recognition in the eyes of the world community. It has received that special meaning and since 1945 the word 'genocide' has achieved a very special and elevated status in the hallways of international psyche... The crime itself preceded the legal term invented to describe it... Unfortunately, it took the world a Jewish Holocaust to coin and recognize the Armenian genocide... Alas, the awe that the very word instills in the minds of people, did not prevent occurrence of genocides afterwards...

Convention on the Prevention and Punishment of the Crime of Genocide: 

Article I: The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and punish.
Article II: ... genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
a) Killing members of the group;
b) Causing serious bodily or mental harm to members of the group;
c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
d) Imposing measures intended to prevent births within the group;
e) Forcibly transferring children of the group to another group.

The most forceful words to me, among others, are in Article I: 'prevent and punish'. That should be the goal!

For more read here.

The surreal task of 'cross-examination'...

A lot of lawyers and scholars have written on the art of cross-examination... Most have agreed that even though cross-examination is an 'art', the techniques can be learned and mastered by almost everyone... I think, along with the closing argument, it is absolutely the most important part of the trial... I knew when I lost or won a trial finishing a cross-examination of the crucial witness... You just know it... But it is a surreal experience... I really call it a 'conversation' by a Socratic method. You are having a 'conversation' with the witness on your terms... Your power and your imagination have to be so strong that you can guide the conversation and shape it in the direction you want!!! I do believe, it involves a lot of artistry... Control the witness? Hmmm... That is certainly the goal... Lead? Yes! Before you even start,  you need to know exactly where you are going, why you are going... But the details and the curves on the road is all that matters... Usually my cross-examination has been of very hostile witnesses, officers. It turns into a duel sometimes... 'Officer, if what you just testified is true, I would like to bring your attention to page 5 of your report, where you said exactly the opposite. You testified earlier that you are trained to write all material and significant facts accurately and fully in your report... '  I rarely have cross-examinations where judges, prosecutors and officers do not get angry... It simply amazes me... Almost always I get a prosecutor making faces, judge getting angry and officer wanting to tear me apart... This is when I accomplish something... When I don't accomplish anything, it is because the DA is screaming 'Objection' in anger and judge sustaining it in anger... I ask for grounds for objection, the judge adds them for the prosecutor... Everyone is in a highly anxious state of mind, everybody wanting to end the experience of witnessing my cross-examination... Then they resort to personal attacks, trying to stop me any possible way, 'Counsel, your question is unintelligible.' Then I cut my question into three pieces in plain vanilla English and serve it on a silver platter to the officer... But they are never quite happy with anything I do.

Why? Because I go there with a plan, with a map... I have different scenarios of possible answers... The main thing is to make sure that the witness does not have a way out of the corner you are trying to set him up to. You have to lock him! If you know what you are doing, you will lay the groundwork with the witness before you get to the main issue you are getting to. This is so when you are at the destination, he doesn't have a safety valve to escape from there...

For example:
Q: Officer, when you came to the room, you saw the purse where you found the drugs, laying on top of the bed, correct?
A: Yes.
Q: Do you recognize that purse on this photo?
A: Yes.
Q: Please circle that purse for me.
Q: Was there any other purse in this room with drugs inside?
A: No.
Q: This was the only purse with drugs inside?
A: Yes.
Q: When you entered the room you saw this laying like this on top of the bed, like it is depicted in this photo?
A: Correct.

When that officer testifies on redirect that in fact the purse with drugs was found in another purse (which you anticipated), you come back and hit him hard with his earlier testimony that the same purse was laying on top of the bed as it was depicted on the photo when he entered the room. It is the most fascinating experience when you get the officer admit that he had been 'mistaken' in his testimony... Hmm... Mistaken? The more appropriate characterization is 'lying,' and 'falsifying.' Officer, you won't get away with that with me...

In one of my DUI cases, a client was charged with driving under the influence of legally prescribed medications, very strong painkillers, including Hydrocodone, Benzodiazepine, etc. The expert for prosecution testified that the level of drugs found in the bloodstream of my client on the day in question was lethal, highly toxic and therefore, it was his opinion that the client was driving under the influence of drugs. Most importantly, he just assured the jury that in his thirty years of experience he had never seen that dosage of drugs in someone alive. He said, 'lethal' several times in his testimony. I started cross-examination and had the jury laugh with me:

Q: Mr. ... you heard my client's doctor testify that he had been presribing the same dosage of drugs to her for about 20 years, didn't you?
A: Yes, I did.
Q: Do you have any information to make you believe that on the day in question she misused any of the prescribed medications by her doctor.
A: No.
Q: In fact, you heard from her doctor that the amount of drugs found in her bloodstream on the day in question is consistent with the prescribed dosage allowed to her.
A: Yes.
Q: You testified that amount is lethal?
A: Yes.
Q: You are sure about that?
A: I am positive!
Q: Well, Mr. ..... if that amount is lethal (pause), she is sitting right there in the courtroom... (pause) She is alive?...  Do you see her? (I turned to my client with a surprised smile on my face.)
A: ..... (He simply didn't have an answer to that, while the jurors started laughing with me and my client.)

This was one of the most hilarious moments I have ever had! The expert after that simply did not know where to look and left the courtroom with a red face and utterly confused! He lost all his credibility and the jury hung not believing the prosecutor's expert...

It can't always be pleasant though.  You can have a witness that outsmarts you because you don't have a clear plan or goal... A witness may simply refuse to answer your question, can give evasive answers, etc. I have cross-examined officers who would never give a straight answer to any of your questions. At that point you have to balance your interest in accomplishing certain things through that witness against your interest in not looking like an 'idiot'  before the jury. They will hold it against your client if they believe you are an 'idiot.' The witness may very well drive you to the corner if the answer is not what you were looking for! That can happen! Ooo... You have to shut up and sit down without showing your frustration to the jury! 'No more questions, thank you!' And smile... Incidentally, judges don't like even when I smile. I had a judge tell me in open court in the presence of the jury, 'I don't like that grin on your face. Don't have that expression when cross-examining!' I couldn't help smiling to that! All of a sudden, you can be found in contempt of court for 'smiling,' literally!

The problem is that you get so caught up with your plan and theory and you get so angry that the witness is not giving you the answers you wanted, you can't disengage and you want to fire all your bullets! It becomes very personal to you! You are so invested that you can't let go! It is very dangerous because then it becomes all or nothing and you may lose all! It is like charging your cavalry without infantry support in the face of oncoming artillery fire! That is reckless! (Remember the 'Waterloo'). Caution dictates to draw a line and withdraw when you are realizing you can't accomplish much with that witness... But before you draw a line, you must make sure the jury sees that you are trying to get important questions out there and the witness is refusing to answer! The jury wants your questions answered too and most probably will get frustrated with the witness too! Then in your closing argument you use the witness' evasiveness and unwillingness to give a straight answer to your benefit! 'Ladies and gentlemen, didn't you want to hear why the officer decided to do x or z... I asked him all those questions... He didn't want to give a straight answer to any of those questions! Why? What do you make of that? Well, because he is afraid to provide an answer for you to judge clearly as to the reasons of his behavior... How can you believe this officer if he doesn't want to answer very logical questions here in court under oath?'

So, you can use a bad witness to your benefit too, but only if he had not sunk your ship... You have to make sure a witness does not make you sink... If you know what you are doing, you don't go into areas recklessly with an adverse witness... Your first goal is to accomplish something through the witness... If you can't, move on...

The right to cross-examine is very important to me. I take it very seriously! In one of my trials, when I was impeaching the credibility of the officer by his written reports, the DA was consistently objecting on various grounds, the judge was sustaining, I finally asked for a sidebar! I was in a fury. I told the judge outside the presence of the jury, 'Your honor, you are not letting me to cross-examine this officer and impeach his credibility. You are denying my client a fair trial!' I laid out for the record the areas where I was trying to go into and the judge was not letting me... When I repeated, 'I want to cross-examine this guy...' several times, the judge finally gave up on me and said, 'Do it!' It was hilarious. We went back and I finished the cross-examination... But I will never forget that moment. I simply did not expect him to say that! I thought he was going to say, 'Counsel you are going into improper areas. Under 352 I am going to limit your cross-examination.'

It is definitely a battle you have to win in order to have a chance at winning the war! I have to say, it is not magic, yet it does entail a certain amount of 'magic.' Sometimes I myself don't believe what I accomplish! I go home and think, 'How did I do it?' I really can't explain... Probably it is a combination of preparation, passion, persistence... When you do it right and when you succeed, it is the most thrilling experience an attorney can live for!

Harmony and Dissonance

Probably the most important conference of the year is the Annual Meeting of the American Society of International Law, coming up shortly here. This year it is titled 'Harmony and Dissonance in International Law.'  The title speaks volumes and forces to think, propound, explore... It has long become apparent that the traditional boundaries of international law have dissipated. It no longer means what it meant some 40-50 years ago and even two decades ago. Beginning from approximately 1990, the collapse of the Soviet Union or the Soviet bloc, the age of Internet, and marching trends of globalization, the international law has had a major metamorphosis. It no longer concerns only 'relations among nation state actors'. There is no longer a private versus public dichotomy. Significantly, non-state actors or quasi-non-state-actors (those who are in consort with the nation-state, but not acting under its auspices or under its direct control) have become a pivotal force in making and remaking international law. Separately, the erosion of real 'borders' between nation-states has brought forth an expanding field of transnational law. Nation-states have had to grapple with numerous challenges involving crime across borders.

The ASIL Annual Meeting focuses on a paradoxic simultaneous development of 'segmentation and seamlessness' in international law. The two parallel trends, in direct clash with each other, raise the obvious conclusion of harmony and dissonance in international law. It could not be otherwise. This is indeed a 'natural and probable' consequence of today's global reality that has also affected the making of international law. 'Segmentation' has been a direct result of globalization and 'democratization' of international institutions. The more globalized the world, the more players have the opportunity to roll the dice in the world arena. The more voices heard, the more dissonance. Cultural differences despite the strong 'harmonization' of values and beliefs have their inevitable effect on this process.

This obviously creates problems for resolution of international disputes, wars, disagreements. Therefore, in reaction to this 'segmentation' there has been an opposite push towards 'seamlessness.' There is a need to find a common pathway, an operating principle, and reach some degree of consensus. No one really wants insecurity, indefinite crisis, or stalemate. Moreover, the global economy, fragile and dependent on various indicators, is in constant need for harmonization of rules, policies, laws. 'Seamlessness' is the desire to 'simplify', 'streamline', 'direct' a single coherent body of international rules binding on all, especially in the area of human rights. The 'new' and recently added players constantly challenge the way human rights are enforced. In their eyes, justice is not enforced properly because those in power are 'different' in their value system. So, it is really a need for 'harmonization' of competing interests.

These two trends feed upon each other. If there had not been so much dissonance, there would not have been that much need for harmonization. The stronger the one, the stronger the other. The international law therefore is bound to be shifting and mutating in this highly volatile mass. The chemical distribution of this mass will mark and demark the boundaries of the 21st century international law.

Scholars of international law should not forget that international law is a child of international politics. After all, world politics will define the ingredients of international rules and laws. Depending on how the power in the world is distributed, channelled and processed, international law will develop accordingly. Who will make up the U.N. Security Council? Who will decide the future of Palestine? Who will become the judges of the International Criminal Court? Who decides to prosecute international crimes against humanity?  Who will decide whether a case is admissible before the European Court of Human Rights? These are all real issues that will determine the future of international law development. Real people are involved in this process. Real power lubricated by political considerations, national policies, and unwritten/unspoken practice and custom is thrown into this 'critical mass.'

In short, this is a fascinating amalgamation of numerous physical bodies, structures and designs. The world making up the 'international community', speaking both in harmony and dissonance, has to be highly prepared for the inherent challenge that this process breeds.

Recent publications

Came across a very interesting book worth to read with a provocative title "International Law For Humankind." http://www.brill.nl/default.aspx?partid=210&pid=41426
 Haven't read the book yet, but have to say I know exactly what it is centered on: the need to recognize the 'new' international law. As soon as the Internet appeared in peoples' lives and fastforwarded the globalization, the world was never going to be the same. International law as it was perceived in the 20th century also was bound to change. Increasingly the international law, no matter how people around the world understand it, is going through a restructuring. Since the law generally is a product of the society shaping it, international law was going to be shaped by the 'international community.' As spread out, large and diverse as that 'community' is, it is interconnected by very strong ties glued together by the age of information. So, in some sense the Internet fostered a new stronger 'international law'. Most people unquestionably will have exposure to it one way or the other. On the other hand, because of the Internet there are more voices heard out there in the 'international community',  that have the power and ability to shape that same international law. No longer is the international law a product of the industrialized world, Western civilization... Individuals from once marginalized countries and states now have a lot of say on what is going to be the 'international law' of the century. Because individuals from various cultures and countries may not always agree on many things, the globalization may 'weaken' the concept of international law. International law was always based on the aspirational postulate of 'universality', or in some sense, 'e pluribus unum'... The more the players, the harder for it to maintain its functions in a coordinated manner. It remains to be seen, how the fact that so many 'players' from such diverse corners of the world have come to the table, will ultimately shape the future of international law. Turning more 'democratic' and 'open', it does not necessarily become stronger. As we know, all democracies generally are more fragile than monarchies or oligarchies... Yet, if only a few 'chosen' continued the monopoly over the 'international law', that would subvert the very purpose of its existence.  

I would recommend to read this book and think more about what is awaiting in the future for 'international law'.

Children growing up in prison...

Read a heartbreaking story and watch a video here on how women in Kabul, Afghanistan, charged and/or convicted of 'crimes' have to bring their children along with them to prison. With no one else to care for them, these children end up growing up literally in the prison while their mothers are either waiting for their case to be resolved, or are serving their times... What a psychological trauma at such age... Can children grow up healthy in this environment?! Some of the crimes that their mothers are charged with and convicted are simply ridiculous... and to drag along these kids with them is a total human rights disaster.

Hunger and Africa

Niger is struck really badly with a severe food crisis. A mother says, 'I seldom have one meal a day: my breakfast. I have a daughter who attends school; she can't eat every day. My husband has gone to Nigeria to fetch food.' For a full story. For those who know more about the African continent, this story sounds very familiar (very sadly). But this is something that has to be taken care of by the international organizations because the local governments are poorly equipped and lack resources to take appropriate measures. This is where international humanitarian relief is at most demand! It is very interesting to learn more about the availability of funding to these organizations. As the world is in financial crisis, the funding of these organizations is de minimus. The most direct victims are these children, who don't have food to eat...
(photo credit, see link above).

Courtroom and real world facts...

The concept of 'reasonable suspicion' in the Fourth Amendment analysis has been difficult to apply in concrete cases... But the Ninth Circuit has said it pretty well:

"

Reasonable suspicion must be founded upon a particularized and objective basis for suspecting the particular person stopped of criminal activity. For this reason we must not accept what has come to appear to be a prefabricated or recycled profile of suspicious behavior very likely to sweep many ordinary citizens into a generality of suspicious appearance merely on a hunch. This is required by the fourth amendment. The opinions of this court have put the nomenclature of reasonable suspicion into the public domain. We must not allow ourselves to be seduced by the reassuring familiarity of its echo."

U.S v. Rodriguez, 976 F.2d 592.

The question is when the irrational hunch-- not a legal basis for the stop, metamorphoses into the legal basis, 'reasonable suspicion.' In other words, how trained officers in their minds create and articulate the suspicion that in the eyes of pro-law enforcement judges is 'reasonable' indeed. Unfortunately, the officers' training makes them suspicious of just about everyone and everything. But is that reasonable? Sometimes, I wonder, how different can be my views of 'reasonableness' from those of judges and prosecutors... Often I wonder and ask myself, 'Why don't they see it the way I see it?' 'Maybe my view is unreasonable?' I leave the courtroom after my motion to suppress is denied with a great puzzle and concern in my mind... It is altogether mind-boggling.

Is 'reasonable suspision' a chameleon that changes its colors or is it simply in the eye of the beholder?
Who is going to decide whether the suspicion was reasonable?! The trial court judge and his findings of fact will be given heavy weight.

The U.S. Supreme Court has said that it will review questons of reasonable suspicion' de novo. Ornelas v. U.S. 517 U.S. 690. But interestingly in the opinion written by Justice Rehnquist, the Court heavily deferred to the wisdom of the lower judges, raising a pointed rebuke by Justice Scalia in another case, who said, "I do not see how deferring to the District Court's factual inferences is compatible with de novo review... we have here a peculiar sort of de novo review." U.S. v. Arvizu, 534 U.S. 266.
This strange type of review begs another question. Since finding of 'reasonable suspicion' depends on the facts of each case and is highly fact-sensitive, is the standard of review going to make a difference? After all, the facts drive the case. So, we are back to the square one. The trial judges will have almost absolute discretion over motions to suppress. They control what facts come into the courtroom. They have discretion to rule over admissibility of questions, what evidence should come in at the hearing... Many times I have lost motions to suppress because the issue I was driving at was precluded from being developed... 'Objection...'. 'Sustained.' 'But, Your Honor....' 'Sustained! Counsel,  move on to the next issue.' 'Can I make the record?' 'No, move on.' The end of the hearing. Motion Denied.

So, often there is a wide gap between the real world and the courtroom... It becomes so bad that the entire process really turns into a circus with artificially created figures... As a trial lawyer you have two options, either leave the courtroom in utter disappointment, or like a magician try to manipulate it... It entails a lot of acting, just like in Hollywood.

Jewels of history...

Check out the recent publication by my own distinguished professor of History at UCLA, Scholar of the Month on this blog, Prof. Joan Waugh on Ulysses S. Grant. Like all the deeply memorable lectures of Professor Waugh that I still remember years past and all her scholarship, surely, this book will illuminate much for you about the U.S. Civil War and the American hero... I am sure, it will righteously join the jewels of history... I can't wait to read this book for the holidays... Congratulations to Professor Waugh!

Voice from the trenches...

Took a minute to put out my voice from the trenches... As a defense attorney either in trial or at threshold of trial, I consider myself a foot soldier at war with the criminal justice system. What is the story of the trial lawyer? A psychodrama, a journey, self-revelation, and constant initiation, re-initiation into the inner workings of the criminal justice system... What do others not going through this process, know?! What do they know... Only those in the shoes of the soldier know exactly what it feels like there, in the army... When you are seated next to a human being, who has put his trust, his hopes in you... who understands you with a simple eye contact... A person who has nobody else to like him in the entire system, but you... Someone who is unpopular, who is distrusted, disliked, feared and considered a 'criminal'. When you are seated next to this person who has relied on you, and how your heart sinks at every piece of inadmissible evidence introduced to the jury over your objection, every piece of undiscovered material introduced over your objection, when you are denied a sidebar, not allowed to voice your objections, and succumbed into submission to 'complete and absolute' authority of court that is impermissibly prejudiced and biased against your client... How your face turns red and you are on the verge of fury and a heart attack when you are not allowed to ask a single queston to the jury during jury selection or 'de-selection'. When you are threatened with contempt of court if you start doing effective representation on behalf of your client... This is the process that is not to be described, or written, but to be lived through day in and day out... It takes someone to 'stand up and fight' as a soldier. This is not about intellectual discussions over a cup of coffee, or writing volumes of books about how to be a trial lawyer. This is simply being in the army. Only those who have gone there and have been foot soldiers know exactly how it is like out there. It is a war where you may win the battle but lose the war because if you win one trial, you are back to square one, and fight for another, and another, and another, endlessly, till the end. There is really no winning at this war, but only fighting for what it is worth... The criminal justice system will never change its institutional law enforcement bias, prejudice against the criminal defendant and custom to wash away, dilute, mischaracterize, misinterpret the rights afforded the accused...

Many people do not understand the role of the defense attorney... We are not defending the 'criminals'. We are there to secure the rights and liberties afforded by laws to the entire society... If some in this society choose not to exercise them, or decide to take them lightly, disregard them or worse, deprive others of them, that does not mean that we will put down our weapons and cease fighting for those rights!

And if those who get the opportunity and power to use criminal laws to subjugate, oppress, destabilize and disable minorities and those without voice-- those at the lower economic rungs of the society-- they will have to account for constant struggle by us! I do not walk alone. I have followed many and in time others will join me...

Law double-edged sword...

There are times when I get the need to escape from the everyday parade, uproar and tumult and really think about what is happening around me. These are times when I step back into silent contemplation and musing, complete seclusion. I just thought, how little and powerless we are as individuals against the machinery that is driving the world. The so-called 'law' that we lawyers have learned to revere and analyze, is in fact a double-edged sword. Yes, it can empower the weak, the oppressed, those without power... But increasingly and devastatingly, it is a tool in the hands of the powerful against very those it was designed to protect... It is a tool to disempower, disenfranchise, destroy the will of ordinary people. Injustice through legal channels and under the guise of the law is commonplace. The Bill of Rights is in the gutter. I speak to older lawyers who tell me, 'We won't be a free society in fifty more years.' Someone in fact said, 'Are we a free society today?!' Those in power have the upper hand over the U.S. Constitution, its interpretation, its application, its very existence. The liberal institutions upon which this country has been built and has survived, now are cast into permanent oblivion. Because of economic crisis, people only care about the daily sustenance, not the rights they once enjoyed... But they do not realize that economic-social rights are part of their rights they have lost. Corruption, impunity, complete lack of accountability are commonplace. Police harrassing, intimidating, threatening and beating up people in the streets. No one seems to care. No one seems to talk about these things. You have no right to privacy, no right to speak your mind, no right to walk in the streets freely and fearlessly... The monster is driving the world... and there is no end to be seen.

The law is being used very wittingly and cunningly by those in power against the very those it was designed to protect.

President Obama is trying hard to work with those who do not share his values. Meanwhile, his own values-- values that earned him his popularity and victory-- are dissolving. He is not standing by his promises to unravel the damage brought upon this country by the monster... The promise was exactly that: to uphold the values he was espousing but is now slowly eschewing... Did American progressivism die with Ted Kennedy?! That is the question.

Well said...

The right to walk the streets, or to meet publicly with one’s friends for a noble purpose or for no purpose at all—and to do so whenever one pleases—is an integral component of life in a free and ordered society… This right is rooted in the First Amendment’s protection of freedom of expression and association, as well as… the Fifth Amendment’s protection of fundamental liberty interests under the doctrine of substantive due process.

Waters v. Barry (D.D.C.1989) 711 F. Supp. 1125.

The city is free to prevent people from blocking sidewalks, obstructing traffic, littering streets, committing assaults, or engaging in countless other forms of antisocial conduct... The First and Fourteenth Amendments do not permit a State to make criminal the exercise of the right to assembly because its exercise may be 'annoying' to some people. If this were not the rule, the right of the people to gather in public places for social or political purposes would be continually subject to summary suspension through the good-faith enforcement of a prohibition against annoying conduct. And such a prohibition, in addition, contains an obvious invitation to discriminatory enforcement against those whose association together is 'annoying' because their ideas, their lifestyle, or their physical appearance is resented by the majority of the fellow citizens.

Coates v. City of Cincinnati (1971) 402 U.S. 611.

[Those who] can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.

Benjamin Franklin

In Republics, the great danger is, that the majority may not sufficiently respect the rights of the minority.

James Madison

Since the general civilization of mankind, I believe there are more instances of the abridgement of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpation.
James Madison

First Amendment rights, continued

Justice Brennan (Roberts v. Jaycees, 468 U.S. 609):

Our decisions have referred to constitutionally protected "freedom of association" in two distinct senses. In one line of decisions, the Court has concluded that choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme. In this respect, freedom of association receives protection as a fundamental element of personal liberty (italics mine). In another set of decisions, the Court has recognized the right to associate for the purpose of engaging in those activities protected by the First Amendment-- speech, assembly, petition for the redress of grievances, and the exercise of religion. The Constitution guarantees freedom of association of this kind as an indispensable means of preserving other individual liberties (italics mine).

The intrinsic and instrumental features of constitutionally protected association may, of course, coincide.

This distinction is much forgotten in constitutional analysis today. It is because the so-called instrumental features are tied to much recognized rights enunciated in the letter of the First Amendment itself. But I think, the intrinsic and fundamental right to freedom of association is of much substantive and deeper value...

First Amendment rights and criminal defendant

I was appointed to handle several cases involving charges of alleged violation of a court order. In these cases the superior court issued a permanent injunction against a specific gang and its members, ordering it to refrain from certain activities within a specific circumscribed zone in Los Angeles. Under the umbrella of abating a public nuisance-- gang's activities constituting a substantial nuisance to the public [sic utere tuo ut alienum non laedes: one must so use his rights as not to infringe on the rights of others]-- the court ordered among other things the following:

1. Defendant [name of the gang], its members, agents, servants, employees, and all persons acting under, in concert with, for the benefit of, at the direction of, or in association with them or any of them, are enjoined and restrained from engaging in or performing directly or indirectly, any of the following activities in the
Safety Zone:
a. Do Not Associate: Driving, standing, sitting, walking, gathering or appearing, anywhere in public view or any place accessible to the public, with any known member of the gang, but not including: 1) when all individuals are inside a school attending class or on school business, 2) when all individuals are inside a church, and 3) when all individuals are inside a vehicle in transit on the 10 Freeway; provided however that this prohibition against associating shall apply to all claims of travel to or from any of those locations.

Most of my clients charged with violation of this court order were arrested for this provision, allegedly walking in the Safety Zone with allegedly known gang members. Moreover, they were also served with this injunction at some point in time in the streets as part of the enforcement of this order.

Immediate questions that arise for the concerned are the following: 1) whether this injunction on its face is constitutional and 2) whether as it is applied to my clients on the facts of each case is constitutional.

1) Is this a facially constitutional order?
The California Supreme Court has held in People v. Acuna, et al. (1997) 14 Cal.4th 1090 with respect to another similar gang injunction that a) gang activity constitutes a public nuisance as it is defined by legislature b) gang conduct is not protected by the First Amendment c) overbreadth and vagueness challenges are determined in the context of the prohibited activity.

A very badly written case with poor reasoning. The entire case is driven by the evidence of what are the horrors of gang activity in a neighborhood. As a general proposition most would agree that criminal activity in gross violation of other people's human rights is not protected by the First Amendment. But that is a serious generality. The more important and thoughful task is to look at the order on its face and ask, 'Does this order hypothetically infringe upon someone's Constitutional rights?' Sure it does. It is overbroad because it may be applied to those who are not engaged in gang activity and it may infringe upon someone's right to peaceful assembly and freedom of speech. Remember, the First Amendment protects not only speech/words, but also expressive and associational activity. It is also vague because an individual would have to take Herculean efforts to decipher what is allowed and what is prohibited. Where is the Safety Zone? How knowledge of gang membership is imputed to an individual? Walking in the neighborhood where one lives entails associating with neighbors, saying hello and gathering for an evening retreat and passtime.

An important problem with this decision is the following. Basically it implies that a criminal defendant should not be protected by the First Amendment. If gang activity is a criminal offense then gang membership does not and should not receive First Amendment protection. But that goes against the very fundamentals of our U.S. Constitution. The accused enjoys all of the rights that others enjoy, because 1) he is innocent until proven guilty, 2) often a crime in the eyes of the legislature is civil disobedience in the eyes of another. That is the reason that enemy combatants at Guantanamo should have had the protection of the First Amendment. Unless speech gets to the level of fighting words or incites imminent lawless action by its very utterance, it is protected by the First Amendment. Even there the jurisprudence should be revisited.

In this case, a blanket statement that gangs do not get the protections of the First Amendment is so much against the substance of the U.S. Constitution that it really horrifies one. Someone who is in a gang does not have the right to peacefully assemble with his neighbors for expressive activity? That is basically what the case does. Upholding the constitutionality of this injunction has that effect. Obviously, a gang member robbing, burglarizing, murdering or selling drugs is not involved in protected First Amendment activity. But this injunction has a different goal. It is preventative and goes out of its way to enjoin any sort of activity by known gang members. But in that effort, it infringes upon serious constitutionally-protected activity, not only of known gang members but also of others who are not in this gang.

2) Related question is whether it is unconstitutional as applied to my clients. Answering the first question above helps to answer the second. But it is important to note the dangers of injunctions. As it was noted in Madsen v. Women's Health Center, 512 U.S. 753 by the U.S. Supreme Court:
"Injunctions... are remedies imposed for violations (or threatened violations) of a legislative or judicial decree. Injunctions also carry greater risks of censorship and discriminatory application than do general ordinances."

In that case, the Court used intermediate level of scrutiny to uphold parts and strike some parts of an injunction prohibiting activity of anti-abortion protesters around an abortion clinic. The Court said that using the lower level of scrutiny (time,place,manner regulations to be narrowly tailored to serve a significant governmental interest) was not going to be appropriate for an injunction in light of the constituent dangers. The court instead said, "when evaluating a content-neutral injunction, we think that our standard time, place, manner analysis is not sufficiently rigorous. We must ask instead whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest." 512 U.S. 753.

But this was a case where under constitutional analysis it was admitted that 1) the government was regulating not the content of the speech but conduct 2) as a result of regulation of conduct protected speech was also curcimscribed. The threshold question is always whether the activity is protected by the First Amendment. In the Madsen it was.

In Acuna, the California Supreme Court has decided that gang association in public has no protected First Amendment ingredients in the first place. That is the fundamental problem that I see with these injunctions and how they are applied. Depriving the gang member of the First Amendment protection without a specific case-by-case analysis is simply unacceptable to me. What if the gang member is gathering with his associates and says 'Fuck the police', 'let us burn the flag', 'let us go to the City Hall and sit on the stairs' etc. etc. etc. What if their activity falls short of any 'criminal' action against either the public or police. It is simply expressive in nature. That is definitely and absolutely protected by the First Amendment.

As far as the application to several of my clients: this injunction gives absolute discretion to the gang unit of the LAPD in deciding who is subject to it, who should be served with it, and who is in violation of it. My clients have been arrested for innocuous behavior that cannot even come close to criminal activity. For example, driving to El Polo Loco eat, or walking home with friends after a basketball game, or having a ride home with a friend.

The injunction permits the police to arrest anyone who is associating with known to police gang members. Its wording does not even contemplate any sort of criminal behavior.

My question is this: does the societal interest in abating gang activity/nuisance on balance warrant such flagrant violation of one's Constitutional liberties?! Isn't this a slippery slope leading us towards the 'police state' and diminution/dissolution of the U.S. Constitution to prerogatives of the law enforcement?!