Posts Tagged ‘Justin P. Walsh’

Structuralized Racism or High Blood Pressure

March 9, 2012

An interesting article this morning. Turns out that a widely used blood pressure medication has the unintended side affect of muting racist thoughts. From yahoo news:

“Implicit racial bias can occur even in people with a sincere belief in equality,” said Sylvia Terbeck, lead author of the study, which was published in the journal Psychopharmacology. “Given the key role that such implicit attitudes appear to play in discrimination against other ethnic groups, and the widespread use of Propranolol for medical purposes, our findings are also of considerable ethical interest.”

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So what does this mean? Well it definitely adds some fodder to the nature versus nurture racial debate. Capillary defects in the brain? Can’t wait to see what kind of neurological and sociological studies this spawns. Given the Supreme Court’s take that if you don’t talk about racism, it doesn’t exist, I would love for this to develop further into an argument than can be used against the colorblind individualism model.

DUI pled to Flying While Drunk: Prosecutorial Discretion Run Amuck?

March 6, 2012

So it snowed last night. A fair amount. I think we’re up to about 3 inches. The freeway won’t be a problem, but the side road is iffy. Rather than risk certain death (I’m ever-phobic of driving on snowy roads…people are idiots). I decided to peruse fark.com.

That’s when I came across a story that was a little disturbing. It starts out like most drunk driving stories, with a man almost putting himself in a ditch and generally driving like the opposite of Ms. Daisy. Soooo…replace Morgan Freeman with Charlie Sheen.

So he gets popped, blows double the limit, but there are inconsistencies in the blow. Best consistent reading is .13. The prosecutor sees the weakness, even though there’s three sets of FSTs, all very damning. So what does he do, gives a plea to Operating an Aircraft under the Influence. This doesn’t count as a driving offense, so none of the usual DUI penalties are put in place. The guy never even had a pilot’s license.

Friends on both sides of the v, I’d be happy to hear your take on it. What do you think of pleading down a DUI to a non-traffic offense?

One side note, the process in Wisconsin, where this went down, will still count the Flying while Intoxicated charge on his offender score.

WA Legal Roundup: WA Supreme Court: Mom loses 4 years olds left at home for work; ANOTHER Blakely case; Can’t Adversely Possess City’s Alley

March 1, 2012

So its actually quite an interesting day.

The first case wasn’t all that surprising. The challenge to the dependency action was based on not providing services blah blah blah. The usual rigamarole in dependency actions. So naturally, in Dependency of M.S.R. the Court found no issue with the services (not always the case) and no issue with failure of providing counsel, since none was requested. Let’s just say its not a good idea to take off for work and leave your twin four year olds to their own devices. In this case, they ended up causing a fire.

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Next case is a Blakely case. Every public defender should know this and the Recuenco series of decisions. Anyhow, the long and the short of it is Recuenco III isn’t retroactive and the Court may look at verdict forms to determine if the sentence is valid on its face. Can you imagine the train hurtling down the tracks if firearms enhancements from time immemorial were invalidated? Further, the court should be able to quickly look and see if the sentence is valid on its face, which would give it the ability to revise and clear the burden of the COA. The true gem of this opinion comes from Chambers’ clerk’s inserted footnote. Those who know Chambers’ clerks know from whence this note sprang:

On June 24, 2004, five black-clad figures seized control of the Criminal Justice Express, crashed through warning barriers, flattened the Washington State Sentencing Guidelines, opened the throttle, and sent the train hurtling from the main line down the old rail spur where the Federal Sentencing Guidelines and the sentencing systems of numerous states lay tied helplessly to the tracks. Whereupon, the 2003 Term of Court being concluded, the justices twirled their collective mustachios, sent their robes off to the cleaners, and went on vacation. Two months on, as this Essay goes to press, the rest of us stand staring slack-jawed, some delighted and some aghast, at the disarray and paralysis in the locomotive’s wake and the impending carnage at the end of the line.

I refer, of course, to Blakely v. Washington.

Now, to preserve the (semi) anonymity of the Clerks, I won’t give the name. But I will tell you that this quote originated in a law review article: Frank O. Bowman, III, Essay, Train Wreck  Or Can the Federal Sentencing System Be Saved  A Plea for Rapid Reversal of Blakely v. Washington, 41 Am. Crim. L. Rev. 217, 218 (2004). Oh yeah, the opinion is PRP of Scott.

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Its important to note that, while there have been a LOT of post-Blakely cases. I don’t think the sky has fallen down. The courts seem to have dealt with it rather effectively. Probably a little less turmoil than the whole felon-murder thing and the seminal case I can’t remember right now.

Finally, you can’t really take a city’s alleyway. Its there for public use, so you’re not really adverse possessing until the state actually says that part of it isn’t yours. This only applies to statutory dedications as opposed to common law dedications, which CAN be adversely possessed (comes down to the difference between a grant of fee simple in a statutory dedication of land, and an easement in common law). Sadly, I do not have anything funny to say about an Alley. So instead, I’ll post something involving Kirstie Alley. Oh yeah, so you want to know the case on this one too? You needy bastards! Fine! Kiely v. Graves.

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SPD Must Release Names of Disciplined Officers

February 28, 2012

There was an interesting article on the Seattle Times website today regarding the Superior Court reversing an arbitrator decision regarding releasing the names of officers disciplined for misconduct. Essentially, the names of disciplined officers were requested under the public records act. The City used to provide this information with the names redacted for privacy reasons (a legitimate reason, if done properly) and effective law enforcement promotion.

Well, a few years back, the Washington Supreme Court decided a very similar issue and held that the names of teachers with substantiated claims against them for inappropriate behavior was in fact a public record. I’ll quote some of the opinion by Justice Fairhurst (not that I had any hand in drafting this at all…but I totes did):

Sexual abuse of children by school teachers is a terrible atrocity. Allegations of such abuse should be thoroughly investigated by school districts and, if the allegations are substantiated, the media may request records containing the identity of the perpetrating teacher. However, when such allegations are determined to be unsubstantiated, the identity of the teacher is exempt from disclosure to a public records request because such disclosure would violate the teacher’s right to privacy. Thus, we hold the identities of public school teachers who are subjects of unsubstantiated[1] allegations of sexual misconduct are exempt from disclosure under Washington’s public disclosure act (PDA), former chapter 42.17 RCW, amended and recodified as chapter 42.56 RCW (LAWS OF 2005, ch. 274).

Now, lets substitute police for teacher and “sexual abuse of children” with “misconduct” and see if it largely makes sense:

Misconduct by police is a terrible atrocity. Allegations of such misconduct should be thoroughly investigated by police departments and, if the allegations are substantiated, the media may request records containing the identity of the perpetrating officer. However, when such allegations are determined to be unsubstantiated, the identity of the officer is exempt from disclosure to a public records request because such disclosure would violate the officer’s right to privacy. Thus, we hold the identities of police officers who are subjects of unsubstantiated allegations of misconduct are exempt from disclosure under Washington’s public disclosure act (PDA), former chapter 42.17 RCW, amended and recodified as chapter 42.56 RCW (LAWS OF 2005, ch. 274).

I wonder if the Guild will appeal, or if they’ll realize that given the Washington Supreme Court’s current makeup, this order will likely stand and they will have paid a lot of money to their attorneys, and to the other side, for this appeal?

Interestingly, there are a lot of comments that if citizen’s have nothing to hide, then they have nothing to fear from the police. Unfortunately, this is not true. The very heart of the problem is there are instances where people had nothing to hide, yet plenty to fear. I have many friends who are fine, upstanding examples of what law enforcement needs to be. Its the officers who don’t live up to that standard that need to be monitored by the populous. Under the law, if the allegation is not substantiated, their identifying information should not be disclosed.

http://www.youtube.com/watch?v=On4XMG0U3xk&feature=related

In other words, the Public Records Act allows the public access to track just this sort of thing, so that the public can remain vigilante over its government. Preventing tyranny and all that.


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