Are Inmates Running the Insane Asylum?

California prison inmates who are suffering from severe mental problems will now be eligible to have sex reassignment surgery while incarcerated and have the State of California pay for it. This is the first state to authorize this type of expenditure. The major question is: should the State be involved with this at all? The guidelines mandate that the inmate have been taking hormone therapy for at least 1 year and have consistently expressed a desire to change their biological gender before an operation can be performed. In addition, the inmate’s doctor must say the inmate is suffering significant distress due to a mental condition known as gender dysphoria. There are currently 385 inmates in the State prison system to whom this issue applies. The number is expected to grow. The inmate who spurred this change in policy is serving a life sentence for murder and has tried to kill himself/herself on multiple occasions.  Should he State become involved in this at all? Should the State be required to ease an inmate’s psychological pain, or should the inmate just have relief from physical pain? The costs of these procedures could run anywhere from $15,000 to $100,000 per person. Could state resources be better used elsewhere?

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A federal judge apparently has no sense of humor. Federal Judge Lawrence O’Neill increased the sentence of a criminal defendant by one year because he laughed while being sentenced by the judge. The increase in the sentence arose from arguing and disrespecting the staff at a halfway house. The defendant had been in prison for 6 years for being a felon in possession of a firearm.  After the defendant laughed, the court felt that the defendant had not “learned” what he needed and tacked on an additional year for him. Should he have done this? Should judges not act in a reflex action and consider the gravity of the offense (laughing) compared to the gravity of the sentence (one more year in jail).

A State of California Deputy Attorney General was arrested in the midst of a trial because she was shouting at opposing counsel and resisting the bailiff’s attempt to remove her from the courtroom. Everyone understands that tempers can rise, but to get to this level, the actions are bizarre. One must be a “zealous advocate” for their client, but not to this extent. The State Attorney had lost three prior dismissal motions on this case. Will this be much ado about nothing, or is this systematic of greater problems with both the Criminal Defense Attorney and/or the system?

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Miranda’s Application to Children

By now we are all familiar with the case of Miranda v. Arizona (“Miranda rights”) for a criminal defendant by exposure to all the police shows on television. For those who do not know what this is it is the rendition of your rights (you have the right to remain silent, etc). The California Supreme Court has ruled in a 4-3 decision that a 10 year old can waive his right to remain silent. The case involves a 10 year old boy who killed his Neo-Nazi father who had repeatedly physically abused the boy and his stepmother and had threatened to burn down their home with the family inside. The father was also a drug addict.

The boy (who is of low-average intelligence) suffered from attention deficit disorder (who had been exposed to many illicit drugs when his mother was pregnant and had been expelled from various schools for his violent behavior) shot and killed his father while the father was sleeping. One of the dissenting judges noted that this child is one of 613 California children under the age of 12 arrested for felonies in 2011. California courts commonly decide that children aged 15 and older are capable of knowingly waiving their rights. One case has upheld a waiver by a 12 year old. Should the court have taken this case to determine a “bright line” test to determine an age of when a knowing waiver can occur?

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The child was sentenced to 40 years to life for second degree murder but because of his age, must be released when he turns 23. He will be eligible for parole when he turns 20.

Should the Legislature intervene in a situation such as this, or, should these types of cases be left to the courts on a case by case basis?

The Supreme Court of the United States is dealing with death penalty cases again. The bulk of these cases come from Florida. Most states require a unanimous jury verdict on death sentences. Florida does not. In one case, 5 of the 12 jurors voted not to impose the death sentence.. However, if Florida can continue with its own interpretation, 70% more death sentences would have been approved since 2010.  In Federal cases, unanimity for a death sentence is required, but not all states adhere to this standard. The court is also dealing with a juvenile criminal case in which a sentence of life without the possibility of parole is made. Juvenile defendants can change over time and are more likely to than adult offenders. Should the justice system take this into account? Should the system merely look for retribution and lock the door and throw away the key? Should we use the old Robert Blake character (Tony Barreta) line of “don’t do the crime if you can’t do the time?”



California Criminal Laws: Too Many, Too Few or Just Right?

California has in excess of five thousand (5,000) criminal statutes. One must indeed wonder why. Governor Brown has recently rejected adding to this plethora of statutes and noted that before “we go down the road, I think we should pause and reflect how our system of criminal justice could be made more human, more just and more cost effective.”

The Governor concluded that California needs a holistic sentencing commission to review the entirety of our criminal statutes to recommend needed changes (what to roll back, what to toughen up and to critique legislative proposals. Too often, criminal statutes are passed in the wake of tragedy. While the sentiment of the statutes may be a valid expression of outrage, the long term aspects of the statutes need to be reviewed. There is an entire crime bill industry that measures effectiveness by the number of infractions turned into misdemeanors and misdemeanors turned into felonies. This sentiment, coupled with the “junk fees” that are tacked onto criminal fines, are a major source of revenue for government. An easy example is a simple DUI conviction. The basic fine is $395 for a first time DUI. Various fees (payments into a probation fund, victims fund and various other costs increase this fine by 600%. Add to this, payment for the alcohol school, potential ignition interlock device and other fees and you can see the many hands that are out to capitalize on criminal convictions.

California has a backup plan to deal with criminal statutes if the legislature cannot, that is the initiative process. Voters last near passed Proposition 47 which directed the criminal justice system away from punishing drug use and petty crimes to the same extent as a violent crime. The initiative process is a laborious one and is subject to the same problems that special interests exercise over the legislative process, money controls the agenda. California is faced with competing interests and litigation to avoid jail overcrowding. Do we want to adopt the philosophy of lock the door and throw away the key, or do we want to take a more reasoned and humane look at crimes and sentences that are imposed for their violation? Should we use criminal defendants more for Cal-trans work to clean up the freeways and undertake to improve our communities? Should we turn a blind eye and ignore these people? How can we better use governmental resources to punish the wrong doers and safeguard the public?  Do we really want to adhere to the writing at the US Supreme Court of equal justice under law, or do we want the system to be fluid depending on the defendant?  Do we need to go to the root causes of criminal conduct in the first place? Is it lack of jobs, lack of education or something else? Our society has evolved and passed many great societal changes. Can we continue on this path or change it in some manner?

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Baseball’s Antitrust Exemption: Time for a Change?

The bid by the City of San Jose to lure the Oakland A’s baseball team to San Jose has been rendered a fatal blow by the US Supreme court. In not wishing to hear arguments on the case, the court allowed the Major League Baseball Anti-Trust Exemption (passed in 1922) to stand. This exemption allows for teams to carve out territorial areas. The current state of Northern California baseball only allows the A’s in certain counties and the San Jose area was not one of them. The court will allow Congress to see if it wants to repeal the exemption. San Jose argued that the exemption stifled competition and that the rules are now archaic and should be modified to reflect modern technology (super television stations and the sheer volume of games on television).

In light of modern technology, does the exemption make any sense now? Shouldn’t competition for the product of the consumer (money) be allowed to go to the best team in terms of record, marketing and the various other factor that mandate a successful business? Do multi-billionaires really need the government to ensure their financial success? Should all industries have this protection, or, should competition make business succeed or fail?

With the ultimate capitalist (the Donald) running for the Republican Presidential nomination, one must wonder if he would endorse the baseball antitrust exemption. Imagine if a real estate developer could not build in an area because a prior builder was there first. Would this be allowed to stand in the courts, both legally and in the court of public opinion? Probably not. The grand old game (in what used to be America’s pastime until the NFL took over) is in need of a reality check to the modern world. Sports franchises are a major asset in today’s economy. They generate large numbers of jobs (albeit not high paying) for a period of time to the local economy. Should a competitor be locked out of the opportunity to compete because of an agreement more than 90 years old? California favors competition. A competing business can open next door selling the same product. No court could/would prevent such a situation from arising. Competition would be the deciding factor. Why should the business of baseball continue have such an exemption?

At one point in time NyCity had three major league baseball teams: the Brooklyn Dodgers (before their move to Los Angeles), the Giants (before their move to San Francisco) and the Yankees. All teams ran their businesses without rancor and attempted to put the best product on the field and come up with the best promotions for fans, etc. Granted the one major difference was that this was before free agency existed in baseball. In the pre free agency era baseball had a “reserve clause”. What this allowed a team to do was keep a player that they had signed forever. He could not change teams if he wanted. It was a one way street controlled by baseball. Free agency allowed players to have the movement to change teams as they saw fit and if they could find a team to pay them. Player move may be necessitated by family issues, the desire to win with a certain team and a variety of other factors. Isn’t this just a cost of doing business for the owners? Players come and go and the owners remain. Surely they do not need such an exemption to protect them from themselves. The major TV deals divide monies among the teams. Although some teams (Yankees and Dodgers in particular) have their own TV networks that bring in substantial monies over and above those of other teams. These TV deals represent business acumen of the clubs involved. If a team cannot generate the right amount of revenue, then they need to reexamine how they do business and tweak what they do.

A Potpourri of Weed, Deed & Bead

In a case of first impression for the marijuana industry, a product liability case has now been filed against a marijuana grower and retailer. The suit alleges that the retailer sprayed the marijuana it sold with a pesticide to prevent bugs from destroying the crop. The pesticide produces hydrogen cyanide gas when burned. The suit was filed in Colorado. Although the plaintiffs in that case agree they have not been harmed (so far) they never would have used the product if they were informed of the potential. This is especially true of person who used the marijuana for relief of chronic pain or problems associated with cancer treatment. The pesticide is allowed on vegetables, not tobacco which is burned.

A new California law cracks down on prosecutors who deliberately withhold evidence from criminal defense attorneys. It is amazing that this problem still exists. The US Supreme Court since 1965 has mandated that prosecutors must turn over exculpatory evidence to criminal defense counsel. The ethics code in California clearly states that prosecutors are obligated not to win cases, but to seek truth. By not allowing defendants to have access to all evidence, this undermines the entire criminal justice system. The new law would allow the trial court to recuse the prosecutors who is found liable of this from the case. In cases where the prosecutor’s office is found liable, the entire office could be forced off the case. If violations are found, the trial court is authorized to report the attorneys to the State Bar of California. Current cases are in jeopardy in Riverside, Kern and Orange County for this type of misconduct. From 1997 to 2009, more than 700 cases of prosecutorial misconduct have been filed. Only 6 prosecutors in those cases were disciplined. The public has the right to feel that the criminal justice system is dispensing even handed justice and is not stacking the deck against defendants. We all need to aspire to the credo as the US Supreme Court of equal justice under law

Finally, California has become the latest state to ban plastic microbeads. These beads are the tiny abrasives contained in exfoliators (face and body scrubs) and other products. Six other states have passed similar bans. The problems with the beads arise when they are rinsed off and go into the water supply. These beads have the same effect as grinding up plastic water bottles and dumping them into the ocean according to various environmentalists.  Seems like a laudable goal. However, do we have something that can do the same job without causing any potential problems? Science will need to come to the rescue of the industry and our society to allow those who used the products to continue to do so.

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Uber Liability Update


The law in California is that insurance follows the car first and foremost. However, there may be an exclusion in the driver’s personal insurance policy if the vehicle is being used in a business. A check of the policy needs to be done before a final decision can be made on this. Therefore, all Uber drives should check with their insurance agents / carriers to see if theirs is a policy of insurance excluding business operations in the typical auto policy. California has gotten around this problem by recently passing legislation that would mandate that Uber / Lyft have secondary liability after either the underlying policy of the driver has been exhausted and/or the carrier denies coverage. The issue is raging in the courts due to the exposure of Uber to both civil and/or criminal liability for the actions of their drivers. Uber has taken the position that the drivers are not employees. Their position has been that the drives are independent contractors. They maintain that the drives work when and if they want.  Uber / Lyft and other ride-sharing companies also insist that drivers control their own hours and perform their functions in the manner they want. California courts have ascertained whether a person in an employee or independent contractor by focusing on the major issue of control. Does the purported employer control the hours worked, the manner of the work, the rate of pay, etc.

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In other states, Uber drivers have been charged criminally for rape and assorted other criminal charges. Uber has denied responsibility for these actions based upon the fact that criminal actions of a person may absolve a purported employer for civil liability. However, if Uber did not properly screen the drivers to ascertain if they had insurance and a good driving record and no criminal record, they could potentially be held liable for civil liability if they were negligent in not doing their due diligence by allowing persons to have access to their information (data to pick up people) whom they knew or should have known were unfit to drive.

As of yet there is no clear litmus test on these issues. This is an evolving situation.  


UBER Liability: Should they cover their drivers?

With the evolution of UBER and its competing companies, the question has arisen regarding liability if a person is injured due to the negligence of the UBER driver.

UBER had at first contended that they are not the employer of drivers. The drivers (they contend) are “independent contractors” and UBER is not responsible for their negligence. Various states have grappled with this evolving problem. California has passed legislation to at least have Uber secure secondary liability in the form of insurance) to compensate victims of drivers negligence. The distinction between an employee and an independent contractor is of crucial importance in California. One of the keys to ascertaining if a person is an employee or not is the issue of control. Does the person set their own hours? Does the “employer” tell them what to do and how to do it? If the answers to these and various other questions are yes, California courts have found liability against the company.

UBER’s competitor, Lyft has changed its policy of insurance to provide secondary liability coverage. This is a step in the right direction. UBER derives revenue from the actions of the drivers and should be held accountable if an injury occurs. Injured persons deserve and expect compensation for their injuries. UBER can easily cover this expense through insurance. This is why people purchase insurance: to insulate themselves from exposure over their policy in most instances and to do the right thing. This is personal responsibility and should also be corporate responsibility.

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