Conservative Bias Alive and Well

Conservative bias is alive and well. Being one myself (a conservative, that is) I support tax breaks for business, strict constructionism, outlawing abortion, prayer in schools, limited government, and yes, even the U.S.-Mexico border fence. I voted for George W., Sarah Palin, and I don't believe water-boarding is necessarily torture. However, my life as a defense lawyer has brought me into contact with the underside of our affluent, gluttonous society. Many on the underside are from other countries, other cultures, other ethnicities.

Cultural sensitivity was the theme of several posts of late. Not really a conservative tag-line, but a required mindset for those taking oaths to zealously defend the criminally accused. Following my post about the Mexican national whom we recently defended, I received the following anonymus comment:

What utter nonsense! How far do you think we should take this cultural sensitivity? Should we allow rural Nigerians to stone witches to death like they do in their home country? How about honor killings, that Muslims do when their women "dishonor" the family? Is that ok? How about polygamy? Any problems there? Should we allow Afghans to lock their women in the house and not allow them medical care or education? How about equal treatment under the law? That means that American 19 year olds don't get to boink 12 year old girls in this country, and neither does anyone else. I don't recall being a foreigner being a defense in the penal code. If the person is in the country legally, he took an oath to obey the laws, and if he isn't, then he needs his ass deported. Bottom line, if they come here, they need to obey our laws. No exceptions.

Following the short essay in which I used Billy Hayes as a preamble before discussing fair treatment of foreigners within the American criminal justice system, I got this comment after sharing facts about a Zimbabwean man I represented last year:

My attitude is short sighted? Why is that? So they were here on student visas, but she can't speak or understand English? Didn't that make it sort of hard for her to go to school? Or did they have Shona ESL for her? Hell, maybe abandoning their child wasn't really a crime, it was some sort of Zimbabwean cultural ritual? Maybe they were teaching the kid to find its way home by celestial navigation? Its always amazing to me how you libs that abhor the thought of America being a superpower or of being a world leader or of having the premier military in the world are always so anxious for us to be the super nanny state of the world and provide cradle to grave everything to everyone, regardless of whether they belong here or not or regardless of whether we can afford it or not. The only good thing about it is that American taxpayers are starting to get tired of their wallets being raped daily to pay for all this liberal crap. The easiest way to solve that problem would be to put the bunch on the nearest plane bound for Zimbabwe and get their visas revoked. End of our problem and it saves money too. And now you are going to whine about oh their rights might be violated. Wrong, having a student visa is not a right, its a privilege and it can be revoked at any time. Bottom line, if I break the law, I get arrested for it and my life is messed up bigtime. Foreigners that come over here legally and break it should be sent home as soon as possible. People here illegally need to do their 6 months federal time and then be criminally deported so they can get 20 years federal time if they get caught here again. I wonder if you have looked into those border areas where illegals caught are jailed for 6 months? Amazing how illegal border crossings in those areas have dramatically decreased. But I bet you would probably lose money representing these people if any of that happened, right? We have a duty to treat our own citizens fairly, and perhaps if we weren't shelling out to support the citizens of so many other countries, we might actually have the funds to take care of our own problems.

This is what we call law-and-order bias in our vernacular. Typically a conservative malady. However, I don't mean to suggest all conservatives suffer with this affliction. Quite a few lefties do, too. Nonetheless, a large part of my skill as defense lawyer is used to identify the bias and eliminate it with the all powerful peremptory strike or challenge for cause. I'm sad though, that so many closets are filled with these misconceptions. As a Bible thumping conservative, though, I'll take time to pray for their understanding.

Does Anyone Remember Billy Hayes?

Who remembers Billy Hayes? Oh yea. He was the guy who got caught allegedly smuggling hashish out of Turkey in 1970. For you movie buffs, Billy Hayes' story was chronicled in the 1978 film, "Midnight Express."

A harrowing tale, to say the least. Billy is caught at the Istanbul airport with 5 pounds of hash strapped to his belly. He is tried in a strange legal system, betrayed by corrupt lawyers, and toyed with by capricious judges. He was originally sentenced to about four years in prison, but later his prison term was enhanced to 30. After 5 years imprisonment, Billy Hayes escaped to Greece from his Turkish hell hole.

Besides being a great movie (with a great soundtrack, btw), what's Billy Hayes have to do with the price of tea in China? Well, imagine a friend or loved one arrested in a foreign country. Would we demand the justice system ensured our friend understood the proceedings in their native language, that they were represented by lawyers and investigators who understood American background and culture, and that they were able to consult with representatives of the United States government as part of the process? I bet we would and I doubt if Billy Hayes was afforded this basic due process.

Now imagine you are from Mexico, from China, or from Zimbabwe. You come to the United States and get charged with a crime. Will you get the procedural due process we expect for our friends and family accused in a foreign country? Maybe not bro. In fact, although the American system of justice is designed to provide this basic fairness, not all accused foreigners are getting it. They are put to trial without interpreters and are represented by lawyers who don't realize (or don't care) about the importance of cultural and ethnic issues in the zealous defense of their clients.

So what do we do then? Well, part of our job as patriotic Americans is to ensure our system provides this basic procedural fairness to people from other countries, cultures, and ethnic backgrounds. When you are called to jury duty and a foreign national in on trial . . . ask the questions. Does this guy need a interpreter? Does the defense lawyer understand the cultural issues involved in the case? And don't assume the judge gets it - they often are just as clueless.

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Some of these Top 20 iPhone Apps for Busy Attorneys have been supplanted by the latest iPhone software update (3.0). But they might be worth a look, nonetheless.

Criminal Harassment . . . Or Just Bad Manners?

Ok. They charged my guy with harassment. For those interested souls, the Texas harassment statute is found in section 42.07 of the Texas Penal Code. If you don't care about the code, then just sit in and listen.

Harassment can be charged in multiple ways. In this case, the bad guys say my client initiated a written communication with a person and during the communication made an "obscene" comment. Specifically, they say my client sent the person a "hand-drawn" depiction of the female genitalia with the caption, "Can I lick you, Katie?"

With the hope of not getting charged with harassment myself, let me say this is family oriented blog. The quote above is from the public record and open to public scrutiny. Any 12 year old can go up to the county court house and pull this file.

Now, the harassment statute defines "obscene" in a most peculiar way. Obscene means a writing "containing a patently offensive description of or a solicitation to commit an ultimate sex act, including sexual intercourse, masturbation, cunnilingus, fellatio, or anilingus, or a description of an excretory function." (funny, my spellcheck doesn't understand half of these words) Nonetheless, patently offensive is not defined and the law provides no guidance as to its meaning.

Certainly, my grandmother might be shocked by such an image and suggestion. But my dad, and probably my wife, would care less. So who's sensibilities is this statute designed to protect? That's the problem. There are no guidelines for law enforcement. Furthermore, people of ordinary intelligence cannot discern what type of conduct is actually prohibited by the statute. Patently offensive is open to unlimited interpretations . . . what might be offensive to one person might not be offensive to another. This is called vague and over-broad for those interested legal eagles.

And what about our constitutional right to write (and draw, I suppose) what we want? That's called free speech in this country and is protected by the U.S. Constitution. Specifically, a case entitled Miller v. California set the standard for what is obscene in America. The Miller case incorporated a community standard of decency and consideration of a writing's literary, artistic, political, or scientific value . . . all qualifications the Texas harassment statute does not include. At least under Miller, a jury would have some needed guidance in determining the limits of one's writing and drawing prowess.

So, does the prosecutor have a point, or does my client simply have bad manners? I'd love to hear what you think? (Becky, this means you, too)

Cultural Bias Among Judges, Juries, & Prosecutors (I)

How much cultural bias exists within the American justice system? Among judges?Among juries? And how about the prosecutors who decide what and when to charge persons of different ethic backgrounds with crimes? Let's look at judges today. We'll examine juries and prosecutors in later posts.

Despite our impression Lady Justice is blind, racial and ethic bias exists among judges. I'm sure few judges would admit to personal bias. However, everyone has it . . . even judges. Even though most judges pay close attention to the merits of a particular case, their different (cultural) life experiences lead to different interpretations of facts and circumstances they are called upon to adjudicate.

The solution? Possibly comprehensive diversity training for judges to address their "decision-maker" bias. Maybe the installation of procedures for identifying and sensitizing judges to their personal cultural prejudices. Perhaps judges should get out into their communities more often and develop sharper cultural sensitivity.

First, and foremost however, judges must realize they possess cultural bias. They must realize their personal prejudices effect how they interpret facts and circumstances . . . especially when the circumstances involve persons of different ethnicity from themselves. Lastly, they must learn how to fairly approach situations in court which encompass their prejudices and assumptions.

Culture Issues In Criminal Defense Work

Recently we defended the interests of a Mexican national charged with the aggravated sexual assault of a child. The client was a 22 year old illegal alien who, at the age of 19, had impregnated a 12 year old girl also of Mexican descent. Once the girl gave birth, police authorities intervened, identified my client as the father, and began a prosecution for one of Texas' most serious sexual offenses.

As the investigation progressed, we quickly learned the client and alleged victim were in a romantic relationship. The client had approached the girl's parents and asked permission to see her. The parents were also Mexican nationals who had come to the United States many years ago looking for a better life. Their cultural background based in rural Mexico influenced their world-view. They were happy to allow their 12 year old daughter to see my 19 year old client.

From my perspective (as a white American born male) the age difference between the client and his girlfriend seem too unreasonable. However, I started to research the cultural norms in Mexico regarding dating and marriage. Surprisingly, I found that in rural Mexico young men of my client's age, and young girls hardly teenagers, regularly began to date and marry.

Clearly, my client's world-view, and that of the girl, were shaped by Mexican cultural influences. My client was not a sexual predator as the prosecutor tried to depict him. Rather, he was young man isolated by language barriers, economic barriers, and cultural barriers who fell for a young girl . . . not unlike relationships developing everyday in rural Mexico. We hired a cultural expert who helped the jury understand the motivation behind the client's behavior. Although we were unsuccessful in persuading the jury to acquit on the sexual assault charge, we were successful in convincing them that probation was the appropriate punishment result. Rather than the 15 years hard time the prosecutor asked for, the client received 10 years probation.

In future posts I'd like to explore the issues of cultural defenses in more detail. Cultural influences shape the way individuals perceive reality and thus guide their decisions. Judges and juries must be educated in this regard to assure the American justice system works fairly and equitably when persons from different cultures allegedly commit crimes in the United States.

Go Green Death

Coach, the "politically correctness police" are not welcomed here either.  So saith the former coach of the Scituate "Green Death" soccer team.  In an email to players and parents, Coach Michael Kinahan explained he wanted to develop soccer players who "kick ass and take names on the field, off the field, and throughout their lives. I respect Coach Kinahan's approach and teach these principles to my children. It's also the only way to thrive in the competitive world of criminal defense law practice. Out of my high regard for the Coach, below is his email in its entirety.  It is worth the read.

Congratulations on being selected for Team 7 (forest green shirts) of the Scituate Soccer Club! My name is Michael and I have been fortunate enough to be selected to coach what I know will be a wonderful group of young ladies. Chris Mac will also be coaching and I expect the ever popular Terry to return to the sidelines. Our first game will be Saturday April 4 at 10:00AM. There will be a half hour of skills followed by a 1 hour game, so total time will be 1.5 hours. All games will be played on the fields in the front of the High School. Each player will be required to wear shin guards and cleats are recommended but not required. A ball will be provided to each player at the first meeting, and each player should bring the ball to games and practices. There is no set practice time allotted for the U8 teams, but I will convene with the coaches to determine the best time and place. If there are cancellations due to rain, all notices will be posted via the Scituate Soccer Club website, no calls will be made (though I will try to send an email). Attached is the Schedule and Code of Conduct. After listening to the head of the referees drone on for about 30 minutes on the dangers of jewelry (time which I will never get back), no player will be allowed to play with pierced ears, hairclips, etc. We used to tape the earings, but that practice is no longer acceptable. Please let me know if your child has any health issues that I need to be aware of. My home phone is 781 XXX XXXX, my cell number is 781 XXX XXXX, and I check my email frequently. According to my wife, my emails get too wordy, so for those of you read too slowly, are easily offended, or are too busy, you can stop here. For the others……

OK, here’s the real deal: Team 7 will be called Green Death. We will only acknowledge “Team 7” for scheduling and disciplinary purposes. Green Death has had a long and colorful history, and I fully expect every player and parent to be on board with the team. This is not a team, but a family (some say cult), that you belong to forever. We play fair at all times, but we play tough and physical soccer. We have some returning players who know the deal; for the others, I only expect 110% at every game and practice. We do not cater to superstars, but prefer the gritty determination of journeymen who bring their lunch pail to work every week, chase every ball and dig in corners like a Michael Vick pit bull. Unless there is an issue concerning the health of my players or inside info on the opposition, you probably don’t need to talk to me. Coach MacDonald has been designated “good guy” this year. Some say soccer at this age is about fun and I completely agree. However, I believe winning is fun and losing is for losers. Ergo, we will strive for the “W” in each game. While we may not win every game (excuse me, I just got a little nauseated) I expect us to fight for every loose ball and play every shift as if it were the finals of the World Cup. While I spent a good Saturday morning listening to the legal liability BS, which included a 30 minute dissertation on how we need to baby the kids and especially the refs, I was disgusted. The kids will run, they will fall, get bumps, bruises and even bleed a little. Big deal, it’s good for them (but I do hope the other team is the one bleeding). If the refs can’t handle a little criticism, then they should turn in their whistle. The sooner they figure out how to make a decision and live with the consequences the better. My heckling of the refs is actually helping them develop as people. The political correctness police are not welcome on my sidelines. America’s youth is becoming fat, lazy and non-competitive because competition is viewed as “bad”. I argue that competition is good and is important to the evolution of our species and our survival in what has become an increasingly competitive global economy and dangerous world. Second place trophies are nothing to be proud of as they serve only as a reminder that you missed your goal; their only useful purpose is as an inspiration to do that next set of reps. Do you go to a job interview and not care about winning? Don’t animals eat what they kill (and yes, someone actually kills the meat we eat too – it isn’t grown in plastic wrap)? And speaking of meat, I expect that the ladies be put on a diet of fish, undercooked red meat and lots of veggies. No junk food. Protein shakes are encouraged, and while blood doping and HGH use is frowned upon, there is no testing policy. And at the risk of stating the obvious, blue slushies are for winners. 

These are my views and not necessarily the views of the league (but they should be). I recognize that my school of thought may be an ideological shift from conventional norms. But it is imperative that we all fight the good fight, get involved now and resist the urge to become sweat-xedo-wearing yuppies who sit on the sidelines in their LL Bean chairs sipping mocha-latte-half-caf-chinos while discussing reality TV and home decorating with other feeble-minded folks. I want to hear cheering, I want to hear encouragement, I want to get the team pumped up at each and every game and know they are playing for something. Lastly, we are all cognizant of the soft bigotry that expects women and especially little girls, to be dainty and submissive; I wholeheartedly reject such drivel. My overarching goal is develop ladies who are confident and fearless, who will stand up for their beliefs and challenge the status quo. Girls who will kick ass and take names on the field, off the field and throughout their lives. I want these girls to be winners in the game of life. Who’s with me? 

Go Green Death!