Well here I am, contemplating how the law has dramatically changed over my many years of practice. When I started my career- from law school, private practice for several years to being a Los Angeles Deputy District Attorney to private practice again to criminal defense attorney exclusively and certified specialist in criminal law- the changes in the criminal laws and DA field were monumental.
In 1953, when I was sworn in as an attorney, criminal law was a first year course, a ten week quarter consisting of crimes and their respective elements. Today, there is a whole new one year course called Criminal Procedure, and it is one of the subjects of the State Bar Examination for admittance to the Bar and required in order to be permitted to practice law. This transformation was a result of Chief Justice Earl Warren’s Supreme Court rulings starting in the 1960s forward to this day
So, when I was asked a simple question during the negotiation stages of a case by the defense attorney, which was, “What do you have against my client?” My retort was generally, ask your client, as there was not such a thing as discovery by the defense in criminal cases. The California Supreme Court as well as the US Supreme Court said as a matter of Due Process, a defendant is entitled to see what evidence the government has against the accused once there is a charge, arrest, and the case is going forward. A new concept called “Discovery,” so the accused and his/her attorney can know what they are facing.
Basically, the courts based their rulings on the 5th amendment doctrine of Due Process by applying that doctrine to the states under the 4th Amendment Due Process Clause prohibiting states from denying a person of Life, Liberty or Property without due process of law seems simple enough, but it wasn’t until the Warren Court that the 14th Amendment was applied to the states.
In my day as a prosecutor, there was no such rule requiring an officer to advise a defendant in custody of their 5th Amendment Right to remain silent, anything they say can and will be used against them, and they have a right to an attorney, and if the can’t afford an attorney, one would be provided at no cost before any questions are asked, and with these right in mind, are you willing to talk without an attorney? I got really burned in a case involving the murder of an LA police officer, where the defendants were not advised of their right, and were questioned and made incriminating statements, convicted, sentenced to death, automatic appeal, and during the interim, between the verdict, sentence and appeal, Miranda v Arizona was decided in 1966, Case #384 US436, a 5 to 4 decision. Miranda, after getting identified as a kidnapper, was questioned and eventually confessed, found guilty and sentenced to 20 to 30 years in prison. The case was reversed, and he was retried without using his statements, convicted again, and got 20 years again. However, his name is said in criminal cases and is known as the “Miranda Rights.” I did not agree with the decision, and even though I was a good criminal defense attorney, the case never made sense to me. There was nothing in the interrogation that suggested force, threats, or anything that would make the statement made by Miranda unreliable, and I opposed to what I consider the sporting theory of justice. The question always is: Is the proof of a crime based on free ad voluntary statements even if obtained by trickery, such as falsely telling a subject about acts connecting him or her to a crime, or was the conduct such that overbears free will, which makes a statement involuntary? Law enforcement is not a game; it is a serious business of protecting the innocent from predatory criminals. I know this does not seem correct coming from a defense attorney, but I am a member of the public, and I just don’t think our criminal justice system should be like a game of niceties. Feel free to disagree, but ask yourself: should a criminal get off with a technicality to go back on the streets as a predator? I do believe in proof beyond a reasonable doubt and that illegal searches, and basically unlawful police conduct should not be rewarded, and the adage that better 100 guilty men go free rather than one innocent man convicted. I could go on, but this is enough regarding the Miranda Rule. Let’s go forward with other changes.
When I was first a prosecutor in the 50s and early 60s, consensual sex between same sex couples was a serious felony, with possible prison time. Also, what constituted possession of pornography was also a felony, and what was considered pornography was based on “community standards.” Today, same sex couples can marry and even adopt children, run for public office, sometimes on the basis of being gay or Lesbian. Pretty dramatic change from when Los Angeles police would either either attempt to entice gay men to solicit a (consensual) sex act by pretending they were gay, or peeking into public toilets and observing two men engaged in sexual behavior. Vice squad cops and we would vigorously prosecute the poor guys as felons. Giant step forward wouldn’t you say? From a serious crime to a lesser crime, to acceptable behavior. Actually, when I was a DA, same sex conduct was considered a mental disease, psychopathic behavior. Go figure.
Then, there was what was known as the “Silver Platter Doctrine,” until Keith Monroe cane into the picture. Basically, the “Silver Platter Doctrine” was that the Feds would bust up a bookie ring or a drug dealers operation or some corporate fraud and obtain oodles of incriminating evidence by conducting what would amount to an unlawful search and seizure of the evidence, making the case unprosecuteable in Federal Court because of what is known as the exclusionary rule, namely an unlawful search is in violation of the 4th Amendment to the US Constitution and under Mapp v Ohio 367 US 643, decided in 1961 in another Warren Court decision, where cops just basically violated to 4th Amendment, the Court ruled the evidence obtained was illegal search and seizure, and ruled the evidence or the fruits therein would be inadmissible in a trial. Weeks v S232 US 383 decided as far back as 1914, and created the US exclusionary rule, that evidence obtained in violation of the 4th Amendment was to be excluded, but that rule was decided later not to apply to the states. Along came Keith Monroe, who was one of the first attorneys I met when I went into private practice for the second time, and I have previously mentioned in one of my earlier blogs regarding our encounter. Keith, a Stanford Law graduate, was very bright. He was retained by an accused…if I recall, a bookie (horse betting) where the cops raided the suspect’s home without a warrant to search, and found evidence throughout the house. Keith moved that the state court to suppress the evidence not under immediate control of the suspect on 4th Amendment grounds. Sorry! the trial and appellate courts ruled, because the Weeks Rule only applied to Federal cases and not the States. Keith wasn’t done. He brought the case to the Federal Courts, claiming that the 4th Amendment applies to states and had a hard time until he reached the US Supreme Court, where the justices ruled that the 4th Amendment does indeed apply to the states and created the rule that absent a warrant, the officers can only obtain evidence in the suspect’s immediate area, and Keith became famous for extending the Bill of Rights and the Constitutional Rules to the States. I happened to be in the DAs office in LA when the ruling was announced in 1969, and Arthur Alarcon, who I mentioned in earlier blogs, who ended his career as an 8th Circuit Federal Justice, was assigned to prepare all the deputies a syllabus on Federal cases, which was so good, it was published for all the prosecutors’ offices throughout the state. Another example of changes in the law and growth.
Another area of change was in penalties. I mentioned Art Alarcon and his advancement from Deputy DA to Executive Secretary to the Governor, Edmund C. (“Pat”) Brown, former Governor Jerry Brown’s father, and then to becoming an LA Municipal Court Judge. Well, those were the “tough on crime” days when the penal code was amended to do away with what is known as indeterminate sentences, such as robbery, which carried 5 years to life without the possibility of parole after serving a minimum of the low range. Every crime was defined an indeterminate term, except Death Penalty. The range depended on the severity of the crime from a minimum to a maximum depending on the judge at the sentencing. An example could be issuing a false check carrying 16 months, 2 years or three, depending on the judge, and if the judge chooses the low term or the high term, he/she just had to state the reasons on record unless it was an agreed sentence between the parties and the court. Now federal sentencing is based on guidelines and are extremely harsh. The present executive and congress are presently urging to relax federal sentencing guidelines as too harsh, and it looks like there may be some changes there. My point is that over the years, there has been a loosening of the severity of sentences for criminal offenses. My prediction is getting soft on crime and trying rehabilitation won’t work and some horrible crime will occur, causing the sentencing pendulum to go back to leniency. Again, feel free to disagree; maybe I am wrong, but I don’t think so.
As a DA, I was young, but had the authority to call whether I would seek the death penalty. I have written earlier on the subject, but the one defendant that was executed never, to my knowledge, murdered anyone. Today, it might be questionable if the crime he was convicted of would even carry life imprisonment. I haven’t changed my belief that the conduct deserved capital punishment, but the law has changed so that the defendant would not be eligible for a death sentence.
The above are illustrations that the law is mobile, not set in stone; I have seen so many changes, and another comes to mind. Attorney incompetence is another. During my DA days and into criminal defense in Orange County, if a defense attorney does not investigate or follow up on leads or fails to object to obviously bad questions, even if it’s obvious, the incompetence can cause the trial to be a farce or a mistrial. I mentioned the Rissoto case in an earlier blog, where I was appointed when the client’s former lawyer failed to question a main witness and there was proof of prosecution misconduct and the Special Master granted the requested Writ of Habeus Corpus authorizing a new trial which by ruling by the state Supreme Court on the basis of the farce rule. Today the standard for such incompetence review could effect the verdict, so I would have won the case without a doubt.
Lastly. Marijuana enforcement then and now. When I was a prosecutor, and even in the beginning of my criminal defense practice, possession of any amount of marijuana was a felony and sale of that Devil’s Drug was punished severely. If the pot was in daddy’s automobile, the car could be and was forfeited. I recall on case in which the LA cops broke into a hotel room, and the defendant was sleeping, and a small sprig of marijuana was in a jar near the accused. The guy plead not guilty, went to trial, and I, in closing argument showed the jar close up with the Devil’s Weed. As I held it out, telling the jury that they will not get too near the evidence, as they are not allowed to possess it, the jurors all huddled together to get a glimpse of the weed, what I called “dope,” convicted him and he went into custody. As time went by, mere possession morphed into a misdemeanor and subsequently, due to my later efforts, one in possession could clean subsequently, due to my later efforts one in possession could clean their record by accepting a diversion to mental health, and six months later, could withdraw their plea and have the cased dismissed. I was responsible for the dramatic change by getting it started through a State Bar Convention Resolution creating the diversion program which I wrote, and presented the resolution to the Convention, where it passed, and subsequently went to the Legislature. Why a change in attitude? answer: I did independent study on the effects of Marijuana and learned all the BS about its dangers and addicting properties were false. Now several states have enacted laws permitting recreational use of Marijuana and California is on its way to do the same. Now mere possession is not even a misdemeanor, but what is known as an infraction, subject to a small fine. The Feds haven’t gone there yet, but they will. My point is, times and knowledge are constantly moving and the concrete or strict construction of the Constitution advocated by some just doesn’t hold water. What I wanted in this blog was to illustrate that times and law are constantly changing, and the law should reflect present standards, not what was OK in the past. By the way, I have always regretted my enforcement attitude regarding Marijuana. Enough for one day. The theme is the Law is always changing and I question those Supreme Court Judges that claim the Constitution should be strictly int
You get the idea; aren’t we all changing in attitudes and beliefs?
Marshall
MarshallsKnowledge© 