655 Redwood Highway
              Suite 277 
   Mill Valley, CA 94941
   San Francisco Bay Area
   Phone: (415) 388-2343 
   Fax: (415) 388-2353



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  • 2013(5)
  • Still Keeping Them Honest
  • February(2):
  • Racial Profiling on Display
  • Drone on
  • January(2):
  • Cleaning up Criminal Records
  • Criminal Charges in the Te’o Hoax?
  • 2010(16)
  • Repealing "Don't Ask, Don't Tell": Don't Wait for the Judiciary
  • November(2):
  • Johannes Mehserle and Michael Vick: Apples to Oranges
  • A Torturous Interpretation
  • October(4):
  • Keeping Them Honest
  • Saying No to Hypocrisy
  • The Supreme Court: Ideological on both Sides
  • Traffic Citations, Inc.
  • September(5):
  • An Adversarial System
  • Running from Assimilation
  • Shopping at Walmart - for Criminal Defense Lawyers
  • Humanitarianism Criminalized?
  • Conceptualizing "Murder"
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  • Lengthy Delays in Criminal Prosecutions
  • What the (First) Blagojevich Verdict Reveals about Jury Selection
  • Roger Clemens and the Ham Sandwich
  • A Law that Strikes Out

    Micah J. Schwartzbach Blog Still Keeping Them Honest

    A couple years ago I wrote about prosecutorial misconduct vis-a-vis Santa Clara University's Innocence Project.  I don't have much to add to that post, other than a bit of recent news.

    Last week a former Texas district attorney was briefly jailed after a judge determined that he had lied in court and concealed exculpatory evidence in a 1987 murder trial.  That evidence tended to prove that Michael Morton, the defendant who served almost 25 years before his exoneration, wasn't the man who murdered his wife in the family home.  Here's a taste of the misconduct: Ken Anderson, the former D.A. in question, hid the fact that Morton's three-year-old son had witnessed the murder and reported that his father wasn't home when it happened.  Read here and here for the details.

    One last thing: The disgraced ex-prosecutor is currently a presiding state judge.

    April 26 2013

    Micah J. Schwartzbach Blog Drone on

    A member of the media recently asked President Obama whether he believes he is empowered to authorize a drone strike against an American citizen within the country.  The Fifth Amendment of the United States Constitution provides that no person may be “deprived of life, liberty, or property, without due process of law.”  So, the answer is simple.  Right?

    “Well first of all, there has never been a drone used on an American citizen on American soil. We respect and have a whole bunch of safeguards in terms of how we conduct counterterrorism operations outside of the United States. The rules outside of the United States are going to be different than the rules inside the United States, in part because our capacity, for example, to capture a terrorist inside the United States is very different than in the foothills or mountains of Afghanistan and Pakistan. What I think is absolutely true is that it is not sufficient for citizens to just take my word for it that we're doing the right thing.” 

    To say the least, Obama’s cryptic, meandering answer leaves a lot to be desired.  You can see his self-consciousness in the last sentence; even he doesn’t expect us to blindly trust him.

    February 20 2013

    Micah J. Schwartzbach Blog Racial Profiling on Display

    On Wednesday, February 6, the ACLU of Southern California announced that it had settled a lawsuit against the city of Glendale and the Glendale Unified School District on behalf of eight Latino students. The suit stemmed from an incident at Hoover High School. The students alleged that on September 24, 2010, acting on the basis of race, Glendale and Los Angeles police officers detained over 50 Latino students at the school, interrogated them about supposed gang affiliations, and forced them to pose for mock mug shots. The ACLU still has claims pending against the Los Angeles Probation and Police Departments for their roles in the detentions. 

    Legally speaking, police officers must reasonably suspect that the target of their investigation is committing or has committed a crime before they can detain him or her. They cannot rely on a mere hunch that the detainee is up to no good, meaning that race or ethnicity isn't a sufficient basis for a detention.  

    When officers detain and search someone without "reasonable suspicion" anything they turn up as a result of the encounter is, generally speaking, inadmissible in a court of law. But, what happens when their investigation doesn't uncover any criminal behavior? Usually, nothing. That's why the recent ACLU settlement--and its public announcement--are encouraging. The more that victims, attorneys, police departments, and in this instance, school districts acknowledge and address incidents of this nature, the less likely they are to recur. That said, I suspect we still have a long way to go.  

    February 07 2013

    Micah J. Schwartzbach Blog Cleaning up Criminal Records

    Anyone who has been wrongly arrested—if not prosecuted—sighs a deep breath of relief once the threat of a criminal conviction has elapsed.  But, people in this position shouldn’t rest on their laurels: Even a dismissed prosecution or investigation can have long-term ramifications for the person accused.  For example, the record of an arrest may pop up during an employment background check.  Thankfully, certain laws allow innocent arrestees to purge the stain of the criminal justice process.

    Any person who has been

    • arrested without charges being filed,
    • arrested with charges filed and dismissed, or
    • prosecuted, but acquitted

    can bring a petition to have his or her arrest records sealed and ultimately destroyed.  (Cal. Pen. Code § 851.8; see also Cal. Pen. Code § 851.85.)  Although the procedure varies, the petitioner must typically establish that he or she was innocent of the crime.  (There are limited circumstances in which the prosecution’s agreement excuses this requirement.)  The process of acquiring this relief can be as simple as filing certain paperwork with local law enforcement or as complex as litigating a court hearing.

    January 31 2013

    Micah J. Schwartzbach Blog Criminal Charges in the Te’o Hoax?

    Considering it’s only a few days old, the story of Manti Te’o’s fictional girlfriend sure has taken several bizarre twists and turns.  Most fundamentally, the rampant assumption that Te’o conspired to prolong, if not create the hoax has given way to reports that he was truly duped.  The media is now honing in on the “catfish” pranksters, which begs the question of whether they could be in line for criminal charges.

    For those of us who don’t know the ins and outs of the scandal, it’s likely a fool’s errand to speculate as to what, if any crimes the conspirators committed.  Regardless, several news outlets have probed the issue, coming out on both ends.  For example, ESPN’s Lester Munson opines that nothing criminal occurred, while Bob Sullivan of NBC News allows for the possibility of charges If neither the local district attorney’s office nor federal prosecutors file charges, don’t be surprised if lawmakers soon try to put something on the books that will apply to future behavior of this sort.

    January 21 2013

    Micah J. Schwartzbach Blog Repealing "Don't Ask, Don't Tell": Don't Wait for the Judiciary

    Senate Majority Leader Harry Reid's avowed commitment to repealing "Don't Ask, Don't Tell" in this lame duck legislative session indicates a justifiable sense of urgency.  Chances of abolishing the controversial, discriminatory law dwindle once the new Congress is seated.  And DADT opponents don't want to leave the law's fate up to the courts.

    The Pentagon released a study last week finding that 70 percent of service members believe that DADT, at worst, would have no effect on military operations.  The Pentagon presented the study to advance its position that gay men and women should be able to serve openly.  Defense Secretary Robert Gates buttressed the study with his testimony before the Senate Armed Services Committee.  Addressing those who still don't want gays and lesbians in the military, Gates testified that the armed services shouldn't be subject to referendum on matters of policy.  Indeed, there was a time in this country when popular opinion would have prevented racial minorities and women from serving.  This point is lost on John McCain, who apparently wants each and every soldier to sign off on serving with known homosexuals.

    Unfortunately, McCain isn't the only one who believes homosexuals don't merit the same civil rights as other disadvantaged social groups.

    December 08 2010

    Micah J. Schwartzbach Blog A Torturous Interpretation

    On Wednesday a federal jury convicted Ahmed Ghailani of conspiracy to destroy government buildings in relation to the 1998 embassy bombings in Africa.  Yet, if you trusted political spin on the verdict you'd think the Obama administration threw the prison doors open for Ghailani, hugged him, and sent him on his way. 

    The controversy centers on the Justice Department's decision to try alleged terrorists in civilian courts rather than military commissions.  Conservative pundits have predictably seized upon the numbers, screaming that Ghailani skated on the other 284 counts he faced.  Fear-mongers of the Bush/Cheney ilk are basking in the glow of the Justice Department going one-for-285.  They implore us to imagine certified terrorists walking the streets.  Most dismiss the fact that Ghailani faces a 20-year-to-life sentence.  They ignore the likelihood that the judge will sentence him to life in prison, the exact same punishment had the jury convicted him of all 285 counts.

    The primary complaint is that Judge Lewis Kaplan excluded the testimony of a critical witness because the Bush government discovered his identity via "enhanced interrogation techniques."  Military commission advocates consider this kind of ruling a negative.  Since I'm skeptical that torture protects Americans, I view it as a victory.  Common sense tells us that the practice rallies terrorist sympathizers and increases the odds that enemies will torture our soldiers.  Given the Abu Ghraib and waterboarding scandals, I find it shocking that people are upset that someone held the government accountable for torture.

    November 19 2010

    Micah J. Schwartzbach Blog Johannes Mehserle and Michael Vick: Apples to Oranges

    As soon as then BART officer Johannes Mehserle shot Oscar Grant in the early morning hours of January 1, 2009, ever-simmering racial tensions came to a boil in the East Bay.  Having seen the infamous cell phone footage of the incident, many who have either experienced or witnessed police racism understandably believe that Mehserle murdered Grant in cold blood.  Others who have seen the footage reasonably concluded that Mehserle panicked, but didn't intend to kill Grant.  A jury that apparently believed the latter version of events convicted him of involuntary manslaughter.  A superior court judge then sentenced Mehserle to the minimum two-year prison term for the crime.  ("Despite sentencing legal issues surrounding Mehserle will continue for years." Rosynsky, Paul T. Oakland Tribune. 8 Nov 2010.)

    In the aftermath of Mehserle's November 5 sentencing, some 22 months after the killing, I don't pretend to know the former officer’s intentions.  To be perfectly honest, when I first saw the footage I thought Mehserle meant to kill Grant.  Now that time has passed and I've read more about the case, all I can say is that I don't know. 

    My purpose here isn't to suggest whether the jury reached the right result or whether the judge's sentence was fair; I simply don't know enough.  All that I ask is that those of us not immediately associated with the Mehserle case be intellectually honest when discussing it.  My request is due to the prevalence of comparisons between the Mehserle sentence and the punishment for Michael Vick, who pled guilty to running a dogfighting ring. Vick was sentenced to 23 months in prison for operating the ring, which resulted in the deaths of dozens of dogs.  ("Apologetic Vick gets 23-month sentence on dogfighting charges." ESPN.com News Services. espn.com. 11 Dec 2007.)  

    November 10 2010

    Micah J. Schwartzbach Blog Traffic Citations, Inc.

    On a Saturday afternoon last winter, I drove toward a busy intersection.  I had to wait for oncoming traffic to pass before I could make a left turn.  While I waited for cars to pass, I noticed an elderly woman walking in the crosswalk intersecting the street into which I was about to turn.  I waited for her to pass the first of the three lanes available in that street, then proceeded.  She never looked in my direction, nor did I come within 10 feet of her. 

    Next thing I knew, a rather nasty CHP officer had detained me.  Since I literally had no idea why she had stopped me, I politely asked.  Her curt retort: "The way you turned into that lane behind that old lady was rude."  (Yes, she cited me for being rude.  I rarely impart legal advice in this blog, but I'll go out on a limb and advise readers that it's not a crime, in and of itself, to be rude.)  Biting my tongue--I mean, really biting my tongue--I decided I would take up my dispute in court.

    After researching the law on my alleged violation, I was happy to learn that, as a matter of law, I hadn't done anything wrong.  In other words, even if the facts were exactly as the officer claimed, I couldn't be found liable for any traffic violation.

    October 29 2010

    Micah J. Schwartzbach Blog The Supreme Court: Ideological on both Sides

    When I first read that Virginia Thomas, wife of Supreme Court Justice Clarence Thomas, recently sought an apology from Anita Hill for accusing the judge of sexual harassment at his Senate confirmation hearings in 1991, I was indignant.  (See Pratt, Mark. "Thomas' wife seeks apology from accuser Anita Hill." Associated Press. 20 Oct 2010.) Then I remembered that I was 10 years old at the time of those hearings, and that while that particular confirmation process registered with me even then, I really knew next to nothing about it.  Wrestling with my personal distaste for Mr. Thomas's judicial record, I coerced myself into abandoning the assumption that he sexually harassed Ms. Hill all those years ago.  Once I was able to do that, I realized that the story of Mrs. Thomas's entreaty has more to offer than the resuscitation of a 19-year-old spectacle.

    Supreme Court justices are notorious for evading "politics" in the 24-hour news cycle sense of the word.  While they sometimes appear publicly and engage in limited question-and-answer sessions, you will not see any of them stumping for candidates this election season.  The justices' aversion to the limelight likely stems from a desire to preserve the image of a neutral and detached branch of government that merely upholds the Constitution.  Yet, anyone who has read a few Supreme Court opinions knows that the judiciary is no less guided by ideology than the legislative and executive branches.  The difference between these "politicians" and others: They often couch their sociopolitical views in Constitutional interpretation.  This is why Mrs. Thomas's rearing her head is so interesting.  Her extreme political associations might provide some insight into the kinds of beliefs that fuel her husband's judicial votes and opinions.

    "Virginia Thomas is a longtime conservative activist and founder of a new nonprofit group, Liberty Central, which opposes what she has characterized as the leftist 'tyranny' of the Obama administration and congressional Democrats. [¶] She was a keynote speaker earlier this month in Richmond, Va., at a state convention billed as the largest Tea Party event ever."  ("Anita Hill: No reason to apologize to Thomas."  msnbc.com.  20 Oct 2010.)  

    October 22 2010