Closing Arguments

Sajid A. Khan

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2014 Lake Shasta Houseboating Khutbah (Sermon)

My old college roommate Siddique Ahmed organizes an annual houseboating trip on Lake Shasta for our group of friends.  2014 marked the 10th occasion of this meeting of brothers, two boats totaling 35 guys on the water for parts of 3 days and 2 nights.  I had the honor of delivering the Friday Khutbah (sermon) as part of our congregational prayers on June 20, 2014 on the boat decks as we started our journey.  Here’s what I shared:  

It is an honor and privilege to give this Friday Khutbah on this 10th Annual Houseboating trip.  So many of you are better suited and qualified to give this short reminder so I am thankful and grateful to Siddique for asking me to deliver this talk and to you all for your willingness to listen.  

Much has happened in these 10 years: many of us have graduated, gotten married, started or changed jobs or careers, moved, and/or become fathers.  Just as some of us have become dads, some of us have lost our parents and most of us have watched as our parents have gotten 10 years older.  At this unique stage and intersection of our lives, most of us in our late 20’s and early 30’s, it is paramount that we address the significance of parents in our faith and lives; both ourselves as parents and honoring our own parents, particularly as they grow older or pass away. 

The Prophet Muhammad (s) said, “Each of you is a shepherd and each of you shall be asked about his flock.”

In the past two years, in my work as a public defender in juvenile court in San Jose, I’ve noticed that many, if not most, of my gang connected/affiliated juvenile clients suffer from the absence of their biological fathers who are often locked up, dead, abroad or nowhere to be found.

This nexus doesn’t seem to be a coincidence.  Fathers, ideally, provide a young person with a foundation, structure, discipline, guidance, protection and support, financial and otherwise.   You remove that paternal presence and a teenager will seek out non-traditional alternatives to fill that drastic void.

I can understand this dynamic.  I suddenly lost my father when I was a 16 year old high school senior.  As I look back at that time of my life, I, too, needed that paternal guidance and presence. Despite such tremendous buffers that helped ease the loss of my dad, that void has never been completely filled and I have often resorted to sometimes unhealthy alternatives to patch that hole in my life.

My clients’ experiences are a constant reminder for me as a new father and for other fathers or future fathers here.  Our responsibility to our offspring is significant.  Our sons and daughters need us for that protection, guidance, structure and support.  They need our insight, presence and commitment.  They deserve and crave our mentoring, to hear our mistakes, failures, successes and advice.  As the Prophet mentioned, our children are our flock and we are their shepherds, tasked to guide, protect and support them.

Some of us don’t have children; but we all have parents, some of whom have passed on, many of whom are still alive and with us, growing older daily.

Allah says in Surat Al-Isra, verses 23 and 24:  And your Lord has decreed that you not worship except Him, and to parents, good treatment. Whether one or both of them reach old age [while] with you, say not to them [so much as], “uff,” and do not repel them but speak to them a noble word. And lower to them the wing of humility out of mercy and say, “My Lord, have mercy upon them as they brought me up [when I was] small.”

A man once came to the Prophet Muhammad, peace be upon him, and asked: “O Messenger of God! Who among the people is most worthy of my good companionship?” The Prophet, peace be upon him, replied: “Your mother.” The man then asked who is next, the Prophet, peace be upon him, replied “Your mother.” The man repeated the question a third time and got the same answer. The man asked once again, “Who is next? Only then did the Prophet, peace be upon him, said “Your father.”

A companion of the Prophet once asked him which of the many good deeds a man can do is the most loved by God.  Prophet Muhammad answered him by saying, “To offer the prayer in its proper time”.  The companion then asked, “And what is next?” to which Prophet Muhammad replied, “To be good and dutiful to your parents…”

For those of us with living parents, these verses and Hadith speak for themselves: our duty to our parents is second in significance only behind our duty to Allah. Honor your parents, give your parents the best treatment, do not curse at or mock them, instead use the best words with them, spend meaningful time with them, give them companionship, be merciful and compassionate to them, serve them, pray for them.  

If they are alone or need support, live with them or have them live with you.  Dr. Hisham Abdallah once spoke of this in a khutbah where he described the scenario of living with and caring for one’s parents as an opportunity and blessing rather than a burden.  This is the attitude/perspective I urge us to develop and maintain.

If one or both of our parents have passed on, we can still honor and fulfill our duties to them.

The Prophet (peace and blessings be upon him) is reported to have said, “When a son of Adam passes away, he is cut off from his deeds except for three things: a current or perpetual charity, good knowledge that benefits someone, and a good child who makes du`a’ (supplication) for him.”

“A man approached the Prophet asking, “Is there anything I must do in terms of kindness towards my parents after their death?” The Prophet replied, “Yes, there are four things for you to do: Praying and asking forgiveness of Allah on their behalf, fulfilling their promises, respecting their friends, and fostering their ties of kinship…”

Pray for your parents who are no longer with us.  Plead to Allah for their forgiveness.  Respect and connect with their friends and family.  Fulfill their promises and wishes.  Give charity on their behalf or continue their charitable efforts.
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Before I conclude, I wanted to give all of us a few reminders from the traditions of the Prophet that we can apply on this boat for the next 3 days and as we continue our friendships on land for years to come:

The Messenger of Allah (blessings and peace of Allah be upon him) said: “The rights of one Muslim over another are six.” It was said: What are they, O Messenger of Allah? He said: “If you meet him, greet him with salaam; if he invites you, accept the invitation; if he asks for advice, give him sincere advice; if he sneezes and praises Allah, say Yarhamuk Allah(may Allah have mercy on you); if he falls sick, visit him; and if he dies, attend his funeral.”

The Messenger of Allah (peace and blessings of Allah be upon him) said:
Let him who believes in Allah and the Last Day speak good, or keep silent; and let him who believes in Allah and the Last Day be generous to his neighbor; and let him who believes in Allah and the Last Day be generous to his guest.

A man said to the Prophet (peace and blessings of Allah be upon him), “Counsel me,” so he (peace and blessings of Allah be upon him) said, “Do not become angry.” The man repeated [his request for counsel] several times, and [each time] he (peace and blessings of Allah be upon him) said, “Do not become angry.”

The Messenger of Allah (peace and blessings of Allah be upon him) said, “Every joint of a person must perform a charity each day that the sun rises: to judge justly between two people is a charity. To help a man with his mount, lifting him onto it or hoisting up his belongings onto it, is a charity. And the good word is a charity. And every step that you take towards the prayer is a charity, and removing a harmful object from the road is a charity.”

The lessons from these hadith are simple:  say salams to one another, give sincere advice, say Yarhamuk Allaah, speak good or be silent, be generous with one another, don’t get angry, help each other to get on and off the boat, remove harmful objects from each other’s paths, walk to prayer together and finally remember: the Prophet (peace and blessings of Allah be upon him) said: None of you [truly] believes until he loves for his brother that which he loves for himself.

I hope and pray that we institute these advices into our lives, starting with these three glorious days on the water:  fulfilling our duties as parents to our children, honoring our parents, dead or alive, and connecting with one another with the prophetic guidance in mind. 

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The Public Defender Walk

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Everyday, multiple times a day, dozens of Santa Clara County public defenders stream out of their Mission or Miller Street offices onto San Pedro Street or Guadalupe Parkway, marching their way to the Hall of Justice or the Juvenile Justice Courthouse. Adorned in varieties of suits and dress shoes, these freedom fighters walk to deliver justice and representation to Santa Clara County’s indigent criminally accused.

I make this walk daily.  Bar card, ID badge and business cards in my pocket, files in my briefcase, I set out each morning primed to fight for my clients in court.  As I make this trek, I imagine myself as a boxer on the way to the ring, as a warrior on the way to battle.  I grapple with the butterflies in my belly, visualize the courtroom and rehearse my arguments, ready for the punches, jabs and spears coming my or my client’s way.

Sometimes, I’m joined by my comrades on this journey.  We trade stories, ideas, plans and strategies, supporting one another in preparation for the intellectual combat ahead of us.  Bound together by shared visions and expectations of justice for our clients, we pace forward to our common battleground: the courtroom.

The walk to receive a jury verdict can be particularly agonizing, hoping for the best, preparing for the worst. This walk often feels ominous, like a march to the guillotine, spent second guessing oneself about missed arguments and unasked questions, anguishing at the thought of hearing “guilty,” agonizing at what punishment may lay ahead for our client.   

For every walk to court, there’s a walk back.  Sometimes, the walk is one of relief and celebration after a client gets released from custody or after achieving a great deal or “not guilty.”  Other times, the return walk is grueling; one of pain and sorrow after seeing clients locked up, removed from their families or found guilty despite our best efforts. All the time, the walk back feels different, clothes no longer pristine, feet heavy, body worn down, mentally and physically exhausted after a morning or afternoon in the trenches fighting against the weight of the government attempting to crush our clients. 

I sometimes get offered rides to court.  I politely turn those overtures down.  Even in the rain, cold or dead heat of summer, I choose the walk.  I cherish the walk.  It means more than a few extra steps or calories burned; it is cathartic.  It is ten minutes of reflection, introspection and  calm before or after the storm of controlled chaos of criminal justice.  It is a symbol of the work I am honored to do as a Public Defender.  I’m ready to take the walk again tomorrow, forging ahead to struggle for my clients.    

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15 Year Anniversary: Remembering my Father Mahboob Khan

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Today, April 16, 2014, marks the 15th anniversary of my father Mahboob Khan’s passing. He died while at work at AMD around noon on a Friday after he made his wudu (ablution) but before he was able to attend jumma (congregational) prayers at MCA in Santa Clara, CA as was his routine.

At the time, I was a 16 year old high school senior.  I didn’t see him that morning.  In fact, I don’t remember the last time I saw him.  I got ready for school and was downstairs while he was upstairs just waking up and getting ready for work. He and I spoke though, yelling back and forth as he ensured I took money from his wallet for lunch before I ran out the door.

I went to school that morning at San Jose High Academy where I was a few months from graduating. In the early afternoon, I got out of class early to join my varsity baseball team for our bus ride to Yerba Buena for our Friday afternoon game. I suited up in my uniform, hat and cleats and took the field for warm-ups.  In the midst of playing catch with my teammates and taking grounders at shortstop, my coach called out to me.  After pulling me to the side of the field, he whispered that my dad was not well and in the hospital (someone had relayed a message through school staff to my coach).

A teammate’s parent gave me a ride back to San Jose High and I gathered my belongings from my locker. I drove alone with my thoughts in my sister Sumiya’s Nissan Altima on 101 to Kaiser Hospital in Santa Clara.  The drive felt long and eerie.  I arrived there and, still in full uniform, rushed into the facility.  Inside, I saw various Muslim community members and family friends somberly gathered. I quickly learned that my dad wasn’t sick; he was dead.

My older brother Salman was there. Hospital staff escorted he and I to see my dad’s body. There he lay, with his perfectly manicured beard, lifeless on a table, suddenly gone, just 16 days after his 60th birthday. 

My eldest brother Suhail flew in from Washington DC that night.  As I greeted him at the gate, tears streamed from his face.  My sister Sumiya came back from college at UC Davis and we all joined together to break the news to my mother Malika who had been gone to India preparing for Sumiya’s upcoming wedding.  We then shared the tragedy with our sister Sana, barely 10 years old at the time.

On Monday, my brothers and I joined my father’s close friend Ahsan Syed at Masjid Al-Noor in Santa Clara to wash my father’s body  and wrap it in white cloth according to Islamic principles.  There was a public viewing at a local funeral home where hundreds of community members, Muslim and non-Muslim alike, came to express their condolences. Many had flown or driven in from great distances to honor my father, including many of his close friends from Orange County.  Thereafter, in an era before the prevalence of cell phones and social media, over a thousand people descended upon MCA’s prayer hall for my father’s Janaza (funeral) prayer.   It was fitting that these rituals were held at Masjid Al-Noor and MCA, two places closely connected to my father’s heart and places he dedicated his life to developing.

From there, dozens of cars traveled by police escort to the Five Pillar Farm Cemetery in Livermore. My brothers and I stood in his grave and helped guide his body to rest while hundreds of others gathered to watch.  Each threw dirt over my father and he was buried there enshrouded in nothing but the white linen in a grave that is hopefully a piece of paradise.

Those few days are vivid in my memory even 15 years later.  I don’t remember how I felt during those whirlwind four days, perhaps because I didn’t feel anything at all.  Numb.

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I often hear of my father’s leadership and dedication in building the Muslim community in America.  Sadly though, my own memories of my father actually living, moving and breathing are limited and diminishing.  I struggle to remember how he talked, walked and carried himself.  This reality is disturbing and frustrating.  I fight to hold on to my memories of him, to keep conscious of his existence.

I remember sprawling out on his bed after a long day of school and football practice pleading for a back rub.   Despite him probably having a longer day, he would acquiesce to my demands and give me the best massage.  I remember him picking me up from football practices.  When our practices would run long, I’d see my dad out of the corner of my eye walking around the track in his work shirt, tie, and slacks, using the time to get some exercise.  I remember sometimes walking from the practice field to the locker room and seeing my dad praying in his car as the sun would set.  I remember him taking me often to McDonald’s after a long night at the mosque for a fish filet and french fries, fries that he would nibble on a bit himself.  On other late nights, I remember pretending to sleep so that my dad would carry me inside the house.  Never did he call me out on my fake sleep or make me go inside myself; he always carried me in.  I remember loving to be carried on his shoulders.  I remember that after we installed a basketball hoop in our backyard he came out to shoot around with me; not because he was interested in basketball, but because he wanted to bond and connect with me.  I remember making my dad his tea and toast in the morning that he’d eat and drink in the car as he drove us to school.  I remember my dad meticulously grooming his salt and pepper beard with scissors until it was perfect.  I remember my dad dressing his best when he went to the mosque, especially for Friday prayers and Eid. I remember my dad sleeping on the floor next to me the night I suffered a concussion during one of my JV football games.  I remember hearing the excitement and pride in his voice as he told my mom on the phone that I had been accepted to UC Berkeley and UCLA.  I remember sitting in the backseat of his Buick after an evening at the mosque when he gave a ride home to a poor, downtrodden community member who otherwise would’ve had to take the bus.  I remember him donating that same Buick to a Bosnian refugee family in need. 

There are certain memories I will never have of my dad.  He wasn’t able to see me graduate high school, college or law school.  He didn’t get to meet my wife Saleha, a woman he’d be proud to have as his daughter. He didn’t witness me get sworn into the California Bar. He never got to hold his grandson Sulaiman or hear him call out “Dada” (paternal grandfather).   He never got to take a picture with his five grandchildren sitting on his lap or gathered around him.  He didn’t get the opportunity to give me some marital or career advice or tell me how to be a good dad.  His absence has left a void in me and leaves me regretful and sad.  

Still, despite what I missed from my father, his presence persists all around me. When I go to MCA and Masjid Al-Noor, I think of the countless hours and dollars that he dedicated to help build the community.  When I arrive home from work, I remember how hard he worked to make it our safe haven and domicile. When I look in the mirror, I see the beard I keep, in part, to honor him.   When I look at my son, I see my dad.        

I am honored to be Mahboob Khan’s son.  I cherish those 16 years I had with him and value the impact he has had on my 15 years on this earth since he’s been gone.  I am thankful that he and my mother blessed me with my Islam, my education and my home.  I hope that I can continue to honor and remember him by providing for my family, preserving his home, serving the community and glorifying God.

May Allah be pleased with him.  Ameen.    

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The Search for Fathers

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For nearly the past two years, I have represented juveniles accused of crimes in Santa Clara county. Unfortunately, during this time, gang activity has ravaged much of the county, ranging from Gilroy to San Jose to Mountain view. It comes as no surprise, therefore, that many of my juvenile clients, particularly the young males, have significant gang ties and/or deep gang entrenchment.

In the course of my representation of these young men, I talk to them, learn about their families and their pasts. The assigned probation officers also interview them and create reports detailing their social histories, their family backgrounds.  Through these conversations and review of reports, I’ve noticed that many, if not most, of my gang connected/affiliated male juvenile clients suffer from the absence of their biological fathers who are often locked up, dead, abroad or nowhere to be found. Rarely, if at all, have I seen a young man with significant gang affiliation who has a (non gang related) father regularly present in their lives. 

This nexus doesn’t seem to be a coincidence.  Fathers, ideally, provide a young boy with a foundation, structure, discipline, guidance, protection and support, financial and otherwise.   You remove that paternal presence and a teenage boy will seek out non-traditional alternatives to fill that drastic void.  Sometimes, the alternative that is most inviting, compelling and available is the gang lifestyle.  I am not a gang expert or someone who has done any sort of sociological or anthropological study of gangs. Nevertheless, it appears that gangs can provide the companionship, protection and financial support that a teenage boy craves and requires, particularly when left fatherless. 

I can understand this dynamic.  I suddenly lost my father when I was a 16 year old high school senior.  As I look back at that time of my life, I, too, needed that paternal guidance and presence.  I didn’t fall prey to gangs because I was fortunate to have a strong mother, two older brothers, friends and countless community members, Muslim and otherwise, who I turned to as a safety net in the absence of my father.  I also was blessed with significant financial resources that helped me pursue higher education and aspirations.  Despite such tremendous buffers that helped ease the loss of my father, that void has never been completely filled and I have often resorted to sometimes unhealthy alternatives to patch that hole in my life.  

My gang connected clients, on the other hand, have not had access to the same resources and safety nets.  Often born into poverty or abroad in dire conditions, they, despite their families’ best efforts, struggle to meet their basic needs: financial, emotional and familial.  With a strong father figure missing, they, In turn, resort to the gang lifestyle to band-aid the wounds of their lives.

This post is not meant to generalize or to comment on boys raised by same sex couples or adopted/step/single parents.  Obviously, there are countless exceptions to the premise I’m discussing here. There are plenty of boys raised without biological fathers that do not succumb to the gang culture.  Sometimes, an uncle, a grandfather, a stepfather, a brother, a mother or strong female figure(s), can help steer a young boy to the right path and away from the streets.  

Additionally, this essay is not meant to diminish the efforts or roles of mothers in the lives of these young men. In fact, in my limited experience in juvenile court, the mothers of my gang affiliated clients strive greatly to provide for their young boys; they work long hours in thankless jobs to give their children as much as possible.  But they can only do so much; parenting a teenage boy is not easy and often, if not always, requires a strong male presence.  

This post, more than anything, is food for thought for myself as a new father and for other fathers or future fathers out there.  Our responsibility to our offspring is significant.  Our sons need us for that protection, guidance, structure and support.  They need our insight, presence and commitment.  They deserve and crave our mentoring, to hear our mistakes, failures, successes and advice.  

I hope and pray that I can be that infrastructure for my son to save him from the gang culture or other unhealthy alternatives that present themselves to him.  In the event of my untimely death, I hope that my son has that safety net that my clients are often left without.  And in that vein, I will fight to provide my clients support and resources to fill the fatherless void in their lives.            

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Freedom Fighting: The Juvenile Detention Hearing

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In my current assignment, I am privileged to represent minors accused of crimes. Sometimes, when arrested, these young people are ripped from their homes, removed from school and yanked into juvenile hall custody. A few days later, at a detention hearing, they appear in court to face their charges and learn whether the judge will detain or release them.

On those mornings, I arrive at the office to find a new file with a list of charges and police reports on my chair.  I walk to juvenile hall to meet my newest client. They arrive in the court waiting room through a door connected to juvenile hall and our blind date begins; me in my suit, tie and dress shoes, they in their juvenile hall issued pants, dingy tops and laceless white velcro shoes.  I call their name and walk over to meet them, seeing the apprehension and peach fuzz on their teenage face.  We file into an interview room and I hand them my business card, introducing myself as their assigned lawyer.  We talk about the charges, their rights, the evidence and about who they are.  I poke and prod them to learn mitigating details about my new client that could help convince a judge to release them.  Sometimes the client wants to fight the charges, sometimes wants us to investigate, sometimes wants to admit.  I advise my client about the pros and cons of each scenario, and we devise an action plan with ultimate decision making authority left to the client.  If the charges involve a strike or gang related allegation, my client is fighting (if they rely on my advice).  In every occasion, the client wants out of custody and it’s my job to fight for that to happen.    

The client’s turn comes up and I escort him into the courtroom.  On one side is the prosecutor who painstakingly details what the minor is accused of and why they should remain locked up.  The probation officer flanks another side of the courtroom, piling on even more reasons why the juvenile should be incarcerated. Most times, the minor’s parent(s) show up too, sitting next to their child,  advocating for their son or daughter’s release, but sometimes that chair is occupied by a parent who wants their child confined or remains eerily empty.  In between all these voices and controlled chaos sits the minor, and next to them, me, their public defender, their voice.  I am not their parents’ lawyer nor am I a second probation officer.  Instead, my loyalties lie only with my young client.  I speak up on their behalf, detailing why they should be released; freedom fighting.  

After everyone gets their turn, there’s ominous silence as we wait the judge’s decision.  There’s no bail in the California juvenile justice system so the judge’s ruling is paramount and ultimate: he or she, in most cases, determines whether our client stays in juvenile hall or gets out.  The judge shuffles through some paperwork and announces my client’s fate.  If the judge releases my client on house arrest, there’s a sigh of relief and a tempered smile from the young man; he gets to go home.  I write down his next court date and whisper an admonishment in his ear: take advantage of this opportunity, go to school, no drugs or alcohol, stay out of trouble, keep in touch with your probation officer. i feel relieved, productive and useful; one less young person incarcerated and one more young person with a chance to prove themselves.  

Often, however, the result isn’t easy to stomach; the judge keeps my client in juvenile hall until at least the next court date.  The client’s shoulders and head drop; they know they’ll be locked up for days to come and there’s nothing that can be done.  Probation staff lead the client back into the grips of juvenile hall and I mutter my apologies to them, sorry that I couldn’t get them home.  I urge them to do their best in custody and guarantee them that I’ll fight for the freedom at their next court date.  I walk away feeling useless and frustrated, one more young person incarcerated on my watch.    

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My clients and I are not so different.

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My clients and I are not so different.

I wear my suit, tie and dress shoes, they wear their jail or juvenile hall issued pants, tops and lace less shoes. They’re often tatted, pierced, scarred while I have no traces of ink or any holes on my body.  I’m brown skinned, raised in privilege, educated. My clients are often black or Latino, born into poverty, limited in schooling. Despite these sometimes superficial variances, my clients and I are the same; we’re all humans with families, successes, struggles, dreams, stories, failures, lapses in judgement and addictions. In my clients, I see myself; in me, I see my clients.

Through my nearly six years as a public defender in Richmond and San Jose, I’ve interacted with thousands of clients of all ages, races, genders and backgrounds. Often, they suffer from addiction, depression, anxiety, trauma that either fuels or results from their criminal behavior. They have stories of family members dead, loves lost, victimization at the hands of oppressors, struggles with dependence on harmful behaviors and substances. In hearing these tales, I recognize that their issues are universal, that we, the non criminally accused and the criminally accused alike, are the same, albeit with differences in degree & severity, and manifestation.  Their adversities, unfortunately, have led to criminal prosecution, while mine, fortunately, have remained free from the judicial spotlight.    It just so happens that I, and most of us, have had access to more support, resources, guidance, luck and fortune than most of my clients.  

While I speak to my clients, my juveniles in particular, I stress the need for discipline, perseverance, motivation, hard work and self control. I emphasize the importance of counseling, planning and good decision making in times of adversity.  I urge them to be virtuous, to find healthy, fulfilling alternatives to the temptations and negative influences that result in or spur their delinquency.   When I deliver these words to them, I find that I am speaking aloud to myself; the advice that I give them I need too. The qualities and characteristics I beckon them to embody I must strive for myself.  The counseling, guidance and mentoring I recommend for them I could use too. 

As I reflect on my work and my interactions,  I learn that my clients are much more than their case numbers, charges, and criminal histories.  They are human beings with the same desires, hopes, limitations, histories, tribulations and triumphs as the rest of “us.”  They are you and I.  We are them. 

My clients and I are not so different.

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Actual Innocence Comes Alive

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The book “Actual Innocence,” a must read for anyone working in the criminal justice system, chronicles the common reasons for wrongful convictions.  Most often learned through DNA exonerations, flawed eyewitness identifications, false confessions, “junk” science, government misconduct and inadequate legal counsel have been found most often responsible for convicting people of crimes they didn’t commit. 

In my recent public defender practice, a case brought the book to life and illustrated that some of these reasons for wrongful conviction and accusation exist in Santa Clara County. 

The District Attorney accused my client of participating in a gang related shooting and charged him with two strike felonies.  A victim witness told police that one of the two suspects was heavy set with lots of black hair.  She later told an officer that she recognized that same suspect as a person from her old neighborhood.  Police, in turn, pulled an older picture of that person, my client, and put it in a photo lineup with photos of five others and presented it to the victim witness.  The victim witness identified my client’s picture as one of the people involved in the shooting.  Pretty damning evidence against my client.  But… the photo lineup was flawed and arguably suggestive.  My client’s photo was the only one of the six that was of a noticeably heavy set male.  Of the six, he had the most hair too; in fact, three of the others either had no hair or very short hair.  Put together, my client’s photograph was the only one that matched the descriptors provided by the witness originally to police: heavy set with lots of black hair.  It’s no coincidence that she identified him as being involved. 

With this identification in hand, police picked up my client and brought him in for questioning.  An officer read my client his Miranda rights and questioned him for over an hour about the shooting.  My client insisted repeatedly that he wasn’t involved.  The officer didn’t stop there.  Instead, he brought in a second officer to join the interrogation.  This second officer turned up the implicit pressure: he told my client that he was looking at a lot of time, told him that it could be a life case, told him that if he cooperated that the officer would call the DA and put in the good word. Inevitably, my client caved and told the officers that he was present at the time of the shooting but that he didn’t participate.  He told a story that didn’t make much sense and didn’t  match the uncontroverted facts that the police already had based on their investigation.  Nevertheless, the police thought they had case wrapped up, signed, sealed and delivered:  an eyewitness identification AND a confession.  Client arrested, case turned over to the DA, who charged my client with the aforementioned felonies.  

My client, as a result, ended up in custody assigned to me and immediately again denied involvement in the shooting and provided a potential alibi for the night of the incident.   Our office began investigating the case, interviewing our client’s alibi witnesses, contacting the victim witness, reviewing all the photographs, audio recordings and police reports in evidence.  We learned that the victim witness wasn’t so sure that our client was involved and that our client’s alibi reasonably checked out.  We presented these issues to the DA but they didn’t budge; they thought our client was involved and rightfully accused and charged.  So our client remained in custody, waiting for our investigation to finish and to be brought to trial. 

Eventually, we were ready for trial, hoping for the best, but fearing the worst.  The victim witness was the DA’s first witness.  She described the night of the incident and what occurred, who and what she saw.  The DA asked if the witness could identify anyone in the courtroom as being involved in the shooting.  With my client directly in front of her, the victim witness said… no.  On cross examination by me, the victim witness went further: she affirmatively said that my client wasn’t involved and detailed the differences between him and the suspect she saw and between him and the photograph she identified with police.  Once she was done testifying, we took a break.  She was a great witness for my client, but I remained ready to fight to the end for my client’s liberty, anticipating that the DA would continue to pursue their case against him. 

About 15 minutes later, the DA approached me and said she was dismissing the case because she didn’t feel that she could prove the case beyond a reasonable doubt.  I cried tears of joy.  I rushed over to my client to share the good news with him and his family and we all cried and hugged together.  Two months in custody for a crime he didn’t commit had come to an end: my client was released and his charges dismissed. 

The book “Actual Innocence,” through this case, came to life.  The photo lineup had to be better: 1) police had to use a more current photo of my client that matched his appearance from the surrounding time of this incident date; 2) police had to use other “filler” photographs that more closely matched the descriptions provided by the victim witness so that my client’s photo didn’t stand out like a sore thumb. Because of the mistaken identification and because of the arguably suggestive photo lineup, my client served two months in custody for a crime he didn’t commit.  The “confession” of my client was not reliable evidence; it resulted from a lengthy interrogation tainted with pressure and coercion.  To their credit, police in this case videotaped the interrogation, exposing all parties to the tactics used that produced a false confession.  Nevertheless, my client lost days of liberty that can never be replaced. 

While the case had a storybook ending for my client, it revealed the scary reality of wrongful accusation and potential conviction in California and the United States.  My client’s charges were dismissed, but I can imagine the countless others who are convicted after trial or who plead guilty to charges for crimes they didn’t commit because of damning, yet flawed, eyewitness identification evidence or false confessions.  

Scary, but even more the reason to keep fighting. 

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Thoughts on George Zimmerman Acquittal

Thoughts on the George Zimmerman Acquittal:

A preface: I watched a total of zero hours of the trial and generally relied on Twitter and Facebook for information about the proceedings. As such, my comments focus more on macro issues than on the nuances of the trial.

1) I still mourn for Trayvon Martin and his family. An unarmed, young man left this world too soon and for no good reason. His unjustifiable death remains a tragedy, regardless of the jury verdict.

2) Juries operate, ideally at least, in a closed universe. In this case, they were selected because they didn’t know who Trayvon Martin or George Zimmerman were. They were ordered not to watch or read any media coverage of the case. They were prohibited from talking about the trial except when they’re together and only during jury deliberations.  The judge shaped the course of their deliberations through narrow jury instructions. In this closed jury universe, juries, like in the OJ Simpson trial, reach verdicts that often shock the public conscious. It’s not the court of public opinion; it’s a court of law, flawed as it may be.

3) As a public defender, I would have wanted yesterday’s verdict and a jury that appreciated  and applied “proof beyond a reasonable doubt” if Zimmerman was my client. In a self defense case, the prosecution has the burden of proving that the accused DID NOT act in self defense. If the jury has even a remote but reasonable belief that the defendant acted in appropriate self defense, they are to vote not guilty.  That’s what Zimmerman’s jury did in this case.

In this equation, race can potentially play a large yet unquantifiable role. Perhaps a jury is more likely to find that a young black male like Trayvon Martin is the aggressor rather than a white male in the same scenario, thus justifying the opponent’s use of (deadly) force.  On a larger, scale, perhaps a jury is more likely to find reasonable doubt for a white defendant than for a similarly situated black or minority defendant.  Without question, race was a significant facet of the jury’s acquittal of Zimmerman; to what degree, no one knows.

4) George Zimmerman was found not guilty. He wasn’t found innocent. “Not guilty” and “innocent” are not the same. Even if the jury believed that Zimmerman was a violent menace and believed he was most likely guilty but still had a reasonable belief that he acted in self defense, they were required by law to acquit him. Doesn’t mean he’s innocent and acted morally correct; just means that the prosecution didn’t prove him guilty beyond a reasonable doubt. 

I once had a jury that hung 8-4 for not guilty for my client. I spoke to them after and many of the 8 who voted not guilty told me they believed my client did it and was a 18 or 19 on a scale of 20 for guilt but that they couldn’t shake their doubt. They correctly applied the law and voted not guilty even though they had no belief whatsoever that he was “innocent.”

5) I cannot fathom why Florida chooses to operate with a jury of six, particularly in a major murder trial. With only six jurors, you find less diversity of backgrounds and opinions; easier to find uniform decisions  and less likely to have dissent and critical thinking than with a jury of twelve.  With just six, the likelihood of getting a minority or minorities on the jury decreases as well.  With this probability of having a black person on the jury diminished, it is less likely that a minority perspective of self-defense and reasonable doubt can alter or shape the course of jury deliberations.  Have to believe that having a jury of six rather than twelve significantly altered the outcome of the trial.

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FLY Graduation Speech: Find Your Passion Through Education

Tonight, May 9, 2013, I had the honor to be the keynote speaker for the Fresh Lifelines for Youth (FLY) Law Program Graduation Ceremony at the Santa Clara County Building in San Jose.  The youth, mostly at-risk minors on juvenile probation, were being celebrated for completing a intensive 12 week legal education course.   Here is the speech I delivered to the FLY graduates:  

Honored guests, parents and to our graduates:    It is such an honor to deliver these words to each of you.  I thank the great people at FLY for inviting me here today.

I grew up here in San Jose pretty comfortably: my parents provided me my own room, food on the table, clothes on my back, shoes on my feet, school supplies, all the luxuries and amenities I needed.  These privileges I enjoyed had roots all the way back to India, dating back to my father and mother’s ambitions and to a grandmother that I never had a chance to meet.

My father, Mahboob Khan, was born in 1939 as the 2nd of 7 children to a father who was an uneducated factory worker and a mother who was a homemaker without any formal education. They lived a village life in relative poverty with little luxury. My father’s father, my grandfather, actively discouraged my father’s academic interests.  In fact, when my dad graduated high school, my grandfather insisted that he start working rather than go to college.  Ambitious and undeterred, my dad attended college in Madras, India despite the lack of support and was the first in his family to receive a college degree.  Once he graduated, my grandfather, once again, deterred him from continuing his education.  My father knew the value of education and kept fighting to earn his Masters degree.  He didn’t stop there.  He travelled alone to the United States in 1965, thousands of miles from India, so that he could he attend the University of Wyoming for his PhD in physics. My dad came first to NYC with a scholarship and 50 dollars in his pocket, taking a bus across country to Wyoming, all for the opportunity of higher education.  Just a few months after he arrived in the US, his mother, my grandmother, died in India.  My father wanted to return to reside in India to be with his family but he listened to professors who insisted that he continue his degree.  He did.  He went on to complete his PhD and it was through his education, despite all odds and despite a lack of family support, that he enjoyed his dream job for many years as an engineer and manager, a job that made my privileges possible.

My mother, Malika Khan, was born in India in 1948 to a father who she never met and an illiterate, widowed mother. My mom lived in what can only be described as poverty: no father, a cramped residence, barely enough light to read at night, a daily struggle to eat and go to school. Despite my grandmother’s lack of schooling, she stressed to my mother the significance of higher education. Education was my mom’s ticket out of poverty. In an era when women in India were not often educated beyond elementary school, my grandmother did everything she could to see that my mom went to and graduated from college.  With the support and sacrifice of my grandmother, my mom went on graduate from college in India, the first college graduate, male or female, in her family. She came to the United States in 1969 after marrying my dad.  She continued to pursue education, graduating with a second degree from Cal St. Fullerton in Southern California and went on to become a licensed clinical lab scientist, working for over 20 years at O’Connor Hospital in San Jose, a career that she loved and that helped make my privileges possible. 

The emphasis on higher education was relayed from my grandmother to my mother and from my mother and father on to me and my brothers and sisters.  Throughout my childhood, my mother and father stressed upon me the value of higher education as means to opportunity, success and happiness.  So even after my dad passed away when I was 16 and a senior in high school at San Jose High School, the message was already established:  higher education was the key to a meaningful, happy adult life. 

So I took the values instilled in me by my parents and went to college at UC Berkeley and then law school at UC Hastings in San Francisco. It was during my 2nd year of law school at Hastings that I discovered my passion for criminal law and criminal defense.  I enrolled in my Criminal Procedure class taught by a former Federal Prosecutor named Rory Little. I took the class because it was a subject tested on the California Bar Exam, not because of any particular fascination or interest in how the criminal justice system functioned.  But, as I would later write in an email to Professor Little after I started my career as a public defender, his class changed my life.  In it, I found my calling.  Through his course, I fell in love with public defense. 

The lectures, reading and discussion on the 4th Amendment, which reads in part, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,” were particularly striking, compelling, and ultimately life-altering.

Teeth grinding, heart rate rising, body tense as I read the various Supreme Court decisions stripping us of our dignity and most basic rights.  The ruling that several uniformed officers could board a public bus and ask to search people’s belongings without needing reasonable suspicion of any criminal activity, the decision that police can initiate a car stop for some minimal vehicle code violation, like a malfunctioning license plate light, even if their true intentions involve blatant racial profiling, the findings that cops can pull people from their vehicles during basic car stops without justification.  Just a sampling of the cases that would make my blood boil. 

I then asked myself as the semester wore on, “Who on the ground fights and litigates to protect these most basic civil and human rights, stands up for minorities and the underprivileged against overzealous police searches and seizures?”  The answer became clear to me:  Public Defenders.

It clicked.  I turned that anger, surprise, shock, frustration and emotion into a resolve to struggle as a public defender to protect the fundamental rights we all deserve and expect to be free in our homes, to walk and drive our streets without fear of arbitrary police contact.  I wanted to fight on behalf of criminally accused to protect their rights and provide them representation in their most difficult times.   

From that class onward, I pursued a career as a public defender, starting as a law clerk during law school here at the Santa Clara County Public Defender’s office and then as a lawyer in the Contra Costa County Office of the Public Defender after law school.  I was honored and privileged to be hired as a lawyer back with the Santa Clara County Public Defender’s Office in 2008 and now enjoy the opportunity to represent and fight for juveniles in the juvenile justice system and to interact with the great work that FLY does with our youth in the community. 

It was through higher education, what my parents and grandmother valued so highly, that I discovered my passion for public defense, the work that I get to do each day.  Through higher education, I found a career that I enjoy getting up in the morning for, that excites me, that I love.    

But this speech shouldn’t just be about me or my family; we’re here to celebrate all of you, the FLY law program graduates.  I’m so proud of you all.  I saw the program first hand when I participated in a mock arrest at Del Mar High School’s FLY law class to help illustrate the law surrounding police contacts. I got a chance to meet the students, some of you, who each impressed me with your knowledge, analysis and creativity.  I saw many future lawyers that day and was excited by the potential in that classroom. From what I saw, without question, it is a tremendous accomplishment that you’ve graduated from the FLY law program.

My message to each of the graduates:  in the same way that my grandmother urged my mother to pursue her education, in the same way that my father overcome so many challenges to complete his educational goals, and in the same way my parents instilled that value of education in me, I ask all of you to pursue your education vigorously, no matter the obstacles.  Fight, kick and claw to receive the education you crave and deserve.  Let today’s FLY ceremony be just one of many graduations you participate in.  Use this graduation as a springboard: finish high school, go to college, medical school, law school, business school, a trade school, whatever it might be, so that you can discover your passion, discover the job that makes you jump out of bed in the morning.   Chase higher education to help you find your calling, the career that fulfills and excites you. 

Thank you.

 

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Vote Yes on Prop 36: An essay on California’s Strike Laws

Tuesday is election day and an issue close to my heart is on the ballot:  three strikes reform.  I intended for months to write about three strikes but never got around to it; what better time than now with Prop 36 on the ballot? 

The Basics

For those unfamiliar, the California three strike laws were enacted to more severely punish and incapacitate repeat offenders of certain serious and/or violent crimes such as murder, rape, robbery, child molest, and offenses involving the use of deadly weapons or the infliction of great bodily injury.  Commit one of these enumerated felonies and the convict is saddled with a strike on his/her record and the attached  incarceration for the particular crime.  For example, a person commits a robbery which is a violent felony aka a strike.  They would receive up to one year in county jail with probation or a prison term of 2, 3 or 5 years. 

Once convicted of a strike, any future felony conviction can result in double the punishment and probation ineligibility.  Our convict with a robbery conviction  commits a felony possession of methamphetamine.  Instead of being eligible for probation and/or a drug program, the strike prior results in a double sentence and a mandatory prison term of 32 months, 4 years or 6 years absent judicial intervention.

Commit another “strike” or serious and/or violent felony and now the stakes get ratcheted up.  In this scenario, the punishment for the new crime would be doubled along with a 5 year prison enhancement and one would not be eligible for probation. Our hypothetical convict with a robbery conviction commits another robbery.  Now, he’s looking at 4, 6 or 10 years plus 5 years tacked on.  

Our hypothetical client is now a walking “3 striker.”  Under the current law, if, after being convicted of his 2 strike priors, he commits ANY felony, he is subject to a prison term of 25 years to life, even if the new crime is not serious or violent.  For example, if our client, convicted of two prior robberies, is convicted of non-violent possession of drugs for sale, commercial burglary or car theft, he can be sentenced to prison for 25 years to life.  Such is the state of our current strike laws. 

Criticisms

The current strike law is riddled with flaws and mines of injustice. As a public defender in San Jose, these travesties are on full display almost daily. 

The strike zone is too wide.

First, the definition of a “strike” is much too expansive.  Currently, serious and/or violent felonies including non violent residential burglaries, almost all gang related crimes, certain offenses committed by juveniles, and robberies that amount to nothing more than school yard conflicts.  Examples of my clients who have suffered convictions for strike felonies: the man who entered an open garage and took a drill (residential burglary); the young man who went into an apartment complex storage unit looking to steal (residential burglary); the young man who painted his moniker all over San Jose as part of his tagging crew (vandalism for gang purposes); the college student who pushed a fellow student and took his skateboard that he thought belonged to a friend (robbery). 

Surely, we understand strikes for people convicted of violent/serious crimes such as murder, child molest, inflicting great bodily injury and using guns. However, the California penal system lumps the aforementioned non-violent, arguably non-serious crimes all together as strikes with truly violent offenses. All of these convictions amount to strikes that can ultimately be used to send these individuals to prison for upwards of 25 years to life.  Such disparities are unfair, unjust and potentially cruel and unusual.  To correct these potential injustices, what constitutes a strike must be narrowed to crimes that fit specific categories, including, but not limited to: homicide, aggravated sex acts, child molest, infliction of great bodily injury, personal use of a deadly weapon or firearm, burglaries of inhabited/occupied residences, violent gang related offenses, and the use of significant force of fear in the commission of a theft or taking.

Additionally, juveniles over the age of 16 convicted (without a jury trial mind you) of certain offenses are subject to the strike law.  Simply put, a young man or woman who commits a “strike” as a 16 year old will be subject to the three strike laws for the remainder of their lives.  Simply unfair(I’ve written on this topic previously).  The definition of a strike must be limited to crimes committed by adults (over 18). 

Single strikes count for too much.

Second, the overlooked detrimental, disproportionate impact of three strikes falls on those who have one strike prior.  As noted previously, a person with one strike conviction who commits any subsequent felony is ineligible for probation and must serve a doubled prison term absent judicial intervention.  What results are sentences that overcrowd our prisons and shock the conscience.  In my few years as a public defender in felony courtrooms, the most notable cases involve clients with singular strike priors accused of simple possession of drugs like cocaine or methamphetamine (for personal use).  Often times, these individuals come out of the prison system with unaddressed substance abuse dependence who quickly succumb to their addiction once returned into the community.  Rather than provide them with drug treatment and/or probation, as is offered for those without strike priors, instead, these individuals must serve prison terms of 32 months, 4 years or 6 years for merely using drugs. 

Often times in these scenarios, however, judges will dismiss the strike prior for purposes of sentencing.  Again, rather than releasing these drug addicts from custody and placing them into treatment, judges will still sentence them to significant county jail terms or prison for 16 months or 2 years, all because of the desire to punish them still for their prior crimes.  2010 statistics indicate that a jarring 2,182 individuals with single strike priors were incarcerated in prison for simple possession of illegal controlled substances.  No wonder that prisons were/are overcrowded.  Possession of drugs for personal use should never result in lengthy incarceration, no matter the individual’s prior criminal history.

All told, having one strike prior should not trigger probation ineligibility or a presumption of prison for future felony offenses unless the new felony is either a new strike or fits a narrow class of crime which should not include drug possession. 

Third strikes don’t have to be strikes at all.

Third, as noted previously, the “3rd strike” in the current scheme doesn’t have to be a strike at all for the convict to be sentenced to prison for 25 years to life;  the trigger for a life prison commitment is not required to be a serious or violent felony.  Statistics show that several thousand California inmates are serving prison terms of 25 years to life for 3rd “strikes” that involve non-violent, non-serious crimes including drug and theft related offenses. It is cruel and disproportionate for individuals to be committed for such significant prison terms where the current offense is not serious or violent; the “3rd strike” should actually be a strike felony.

Prop 36

This is what Prop 36 addresses.  Prop 36, with exceptions, will require that the 3rd strike be an enumerated serious or violent felony to trigger the 25 years to life prison commitment.  Individuals with two strikes on their record who commit non-strike felonies would not go unpunished; they instead would be potentially sentenced to double the usual term for the currently charged felony.  Such a change would establish more equitable, fair sentences and save the state millions in incarceration costs.  It’s not as a thorough a reform as I’d like, but it’s a major step in the right direction. 

Vote yes on Prop 36! 

2 notes &

Obama’s Response to My Letter

On September 27th, I wrote a letter to the Obama campaign detailing why I would not vote for him or contribute to his campaign this year.  I sent it via email to the President and his campaign staff and received a response which I’ve pasted below.  Needless to say, the response was a form letter that did little to alleviate or address my concerns. In fact, Obama’s response only further solidifies my choice to abstain from voting for him next week.  Especially maddening is the letter’s reference to “eliminating” Osama Bin Laden and Al-Qaeda leaders (without due process of course) and the strengthening of “America’s unbreakable commitment to Israel.”  The letter fails to comment on my criticisms of extra judicial killings and the use of drones.  Here it is:

Dear Sajid,


Thank you for your message about national security and for sharing your thoughts with us.  President Obama’s campaign is being built by the voices of the American people, and messages like yours will always help shape it.


Keeping the American people safe is the President’s highest priority.  When President Obama took office, the United States was engaged in two wars and faced terrorist threats at home and abroad.  President Obama refocused our security priorities to concentrate on the most serious threats, ending the war in Iraq, bringing Osama bin Laden to justice and taking decisive action to disrupt and defeat al-Qaeda and its affiliates around the world.


The President is committed to strengthening America’s leadership by maintaining a strong military while staying true to our ideals, and his actions reflect that commitment:


  • President Obama has severely degraded al-Qaeda’s capabilities, eliminating more key al-Qaeda leaders in the past three years than at any time since September 11, 2001– including Osama bin Laden, the only leader al-Qaeda had ever known.
  • President Obama signed the START Treaty with Russia to reduce the number of nuclear weapons deployed by Russia and the United States and to allow the United States to resume inspection of Russian nuclear sites.
  • The President has strengthened America’s unbreakable commitment to Israel and is standing by our ally in the face of the Iranian threat. President Obama secured the toughest sanctions ever against Iran – which already are crippling its economy – and made it clear that no options are off the table in preventing Iran from developing nuclear weapons.
  • Perceptions of U.S. global leadership improved significantly after President Obama came into office. For the first time in years, America’s global influence is now seen as more positive than negative.
  • President Obama kept his promise and ended the war in Iraq responsibly. He has also begun to bring our troops home from Afghanistan as we transition to Afghan security and leadership.


Please learn more about the President’s record on national security at: http://www.barackobama.com/record/national-security.


You can also visit www.whitehouse.gov to read the President’s full National Security Strategy


Thank you again for your message, and for joining the conversation about national security.


 

Sincerely,


James Kvaal

Policy Director

Obama for America

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Dear Mr. President:

In 2008, Barack Obama could do no wrong.  I donated to his campaign.  I eagerly anticipated and was ultimately mesmerized by each of his charismatic speeches.  I voted for him.  I celebrated his victory on election night and stayed up watching his acceptance speech.    

Four years later, election season is upon us and Mr. Obama is seeking re-election.    I get daily requests from the Obama campaign for donations.  I get calls to volunteer on his behalf.  I have decided not to give Mr. Obama any of my money or time.  More importantly, I have decided not to vote for him.   Until now, I have never informed the Obama campaign as to why I ignore their emails and requests and why I will not vote for him again.  Inspired by an article I read recently titled "Why I Refuse to Vote for Barack Obama," by Conor Friedersdorf, I thought it would be better to pen a letter to the Obama campaign voicing my concerns rather than just protesting silently.  Here it is:

Dear Obama for America Campaign:

I voted for and supported Mr. Obama for US President in 2008.  I will not do so again this year.  Although I was a political science major at UC Berkeley and while I serve in a government capacity as a Deputy Public Defender in Santa Clara County in San Jose, CA, I am admittedly relatively ignorant when it comes to political matters.  Nevertheless, I know enough about Mr. Obama’s tenure as President and am in tune with my conscience to the point that I cannot vote for him this year.  

Most troubling to me were the extra judicial killings of Osama Bin Laden and Anwar al-Awlaki (and his son).  My thoughts are generally captured in two blog posts, one titled "OBL’s Death: Batman Justice," and the other "US Government: Judge, Jury & Executioner of Anwar al-Awlaki," I authored shortly after those momentous events were widely celebrated and broadcasted by the Obama Administration. The President’s willingness to assassinate US Citizens without any semblance of judicial oversight or involvement is criminal.  The Obama administration’s denial of due process to these individuals, amongst others, is too egregious for me to overlook.  

The presidential sanction of the continued operation of Guantanamo Bay and MR. Obama’s signing of the 2012 National Defense Authorization Act (NDAA) which arguably permits the indefinite detention of terror suspects without trial, further illustrate the president’s disregard for human rights and due process.  I cannot continue to support an administration that permits and champions such vigilante policy and the curtailment of fundamental civil liberties.  

More recently, I was apprised of the appalling reality of US drone practices in Pakistan as reported by researchers at the law schools at Stanford and NYU.  Sickening.  While the US decries and combats terrorism, the Obama administration engages in the murder and continued terrorizing of Pakistani civilians with drone attacks.  My conscience does not allow me to support the candidacy of a man that promotes, implements and continues these hypocritical and ugly practices.  

In 2008, Mr. Obama exhilarated and excited me as a champion of change and justice.  In 2012, Mr. Obama terrifies and frightens me as a purveyor of death and terror.  I will no longer be deceived by his charisma and eloquence that mask a very scary underbelly.  Mr. Obama  will not receive my money or time and does not have my vote.  

Sincerely,


Sajid A. Khan

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Bail: The overlooked source of inequity in criminal (in)justice

In every California criminal trial, the following jury instruction is read several times, "A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt."   A fundamental cornerstone of the criminal justice process is the presumption of innocence; juries are instructed that just because someone has been arrested or because charges have been filed are not evidence of one’s guilt. 

Yet when police arrest and authorities charge the criminally accused for felonies,  the presumption of innocence conveniently disappears.  Bail is set; the charges are presumed to be true and the defendants assumed to be guilty.  The accused are inherently considered dangers to society and flight risks.  The newly minted “defendants” are faced with a significant dilemma:  post bail or languish in the custody of a local county jail until the case has resolved.  They are locked up or forced to pay up before any accusation has been proven true beyond a reasonable doubt.

Bail is not cheap.  In most instances of felony accusations, bail is set at a minimum of ten thousand dollars.  The more serious the charges, the higher the bail amount, sometimes reaching six or even seven digits.  Few people, even the well-to-do, can afford to post such amounts.  The high bail figures force families to resort to bail bond companies who in turn profit from and exploit the vulnerabilities of the criminally accused.  Bail companies will often demand 10% of the bail amount in exchange for their posting of the bail amount.  For example, one accused of felony domestic violence (inflicting injury on a spouse or cohabitant), has bail set at a minimum of ten thousand dollars.  The accused must post that amount, pay a bail company one thousand (money that will not be returned), or sit in jail.  

This dilemma presents itself to the criminally accused regardless of the evidence, well before any adjudication of guilt or innocence.  Even if the charges are ultimately dismissed or the accused is found not guilty, the money paid to the bail company is never returned.  If the accused chooses not to post bail or can’t afford to do so and is ultimately exonerated after spending days in custody, he/she is not compensated for the days of incarceration.  My client who spent five months in jail fighting the residential burglary charge that the jury acquitted him of receives no benefit for the time he spent locked up for a crime he didn’t commit.  The same is true for if more serious charges are reduced as a result of a plea bargain.    The presumption of innocence and the premise of innocent until proven guilty loses significance and teeth due to the presumption of guilt inherent in the bail system.  

There is no sliding scale bail.  The bail amounts remain the same for all accused, poor or wealthy.  As such, the impoverished, which make up the majority of the criminally accused masses, are not afforded the same justice system as their wealthier peers.  They are less likely able to have the means to post bail or will suffer a relatively more serious financial hit as a result of an arrest or criminal charge.  They are more likely to languish in jail during the pendency of their case as opposed to the comforts of their homes.  

Impoverished defendants, therefore, are faced with a much harsher reality due to the inequities of the bail system.  Clients sit in jail cells waiting as their cases filter through the judicial process.   They itch to get out, to get back to their families and life on the outside.  Prosecutors take full advantage.  District attorneys prey on the vulnerabilities of those who can’t afford bail.  They offer defendants what is referred to my colleagues as the “devil’s bargain”:  admit the charges and get out of jail today (with probation).  Clients are given a salve to their itch.  Prosecutors get their conviction.  Everyone wins except any notion of truth and justice.  

So many clients have fought tooth and nail to get their cases to trial, maintaining their innocence as they wait months in jail.  On the doorstep of trial, prosecutors will make the devil’s bargain offer.  Clients, unable to get out of jail on bail, must decide:  sit in jail and fight the case at trial with possibility of a conviction and more incarceration or take the deal and get out of jail that day saddled with a criminal conviction.  This dilemma confronts only those in jail (mostly those who can’t afford bail) and not those who can afford to pay.   More often than not, my clients jump on the devil’s bargain, pleading guilty to serious felonies (mostly California strikes) to get out jail that day.  The truth of the charges is an afterthought.  The clients admit the charges not necessarily because they’re true or because they in fact committed the crime, but primarily to get out of the shackles of the county facilities.  My clients would plead guilty to murder to get out of jail even when the charges were only a gang assault or a residential burglary.  Hardly the ascertainment of truth or the establishment of justice.    

The bail system needs a significant overhaul to correct these disparities and to ensure that all criminally accused receive comparable due process regardless of socio economic status while balancing community concerns of public safety and preventing flight.  Only then will the presumption of innocence flourish as a reality as opposed to largely empty words.  

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George Zimmerman: Uncuffed & Uncharged for Killing Trayvon Martin.

In my over 4 years as a public defender, I’ve had clients arrested for and charged with crimes for incidents where the (alleged) victims suffered no injuries or tangible harm. Surely, California law doesn’t require a physical injury for certain crimes to occur (nor should there be such a requirement). Merely brandishing a knife or firearm can amount to criminal conduct, even if the culprit never uses the weapon. The law criminalizes the uttering of violent threats under certain circumstances or challenging someone to fight without the actual fight occurring. It doesn’t take much to get arrested or charged in California for violence upon another.

This context makes George Zimmerman’s evasion of a Florida criminal charge, let alone an arrest, for killing Trayvon Martin even more befuddling and outrageous. 

Trayvon was 17.  He was a black high school student wearing a hoodie in rainy weather.  Trayvon possessed no gun or weapon; he had skittles, an iced tea and a cell phone.  After Zimmerman called 911 to report Trayvon’s presence as suspicious and after being told by dispatchers not to pursue or confront Trayvon, Zimmerman ultimately shot Trayvon dead with the firearm he carried.   Police didn’t arrest Zimmerman for murder; they didn’t even cite him with disturbing Trayvon’s peace.  To date, local prosecution authorities have failed to charge Zimmerman with any crime, apparently accepting Zimmerman’s claim of self-defense (which indicates an intentional killing that wasn’t accidental or involuntary).  Instead, Zimmerman remains free from custody or posting bail while Trayvon remains dead; an absurd and offensive paradox. 

I am no expert on Florida law but common principles of criminal law indicate that Zimmerman’s “homicide” of Trayvon was criminal and unlawful to at least merit an arrest and prosecution.  California law dictates that if a person kills with a legally valid excuse or justification, a killing is lawful and the killer has not committed a crime but if there is no legally valid excuse or justification, the killing is unlawful and the killer is guilty of some crime.  For example, in California, a killer is not guilty of murder or some lesser crime if they acted in lawful self-defense; such a finding requires that the killer reasonably believe that they were in imminent danger of being killed , that the immediate use of force was necessary to defend against that danger and that they used no more force than reasonably necessary to defend against that danger.  California law dictates that if the killer used more force than was reasonable, the killing was not justified.   

Surely, the incident occurred in Florida and is not governed pursuant to California law but these self-defense principles apply generally.  Zimmerman’s killing of Trayvon as justified homicide on a claim of self-defense has little merit.   It is hard to fathom a scenario where Trayvon posed an imminent danger of death to Zimmerman, especially considering that Trayvon was unarmed and was outweighed by Zimmerman by dozens of pounds.  Even if Trayvon posed a danger to Zimmerman, the force utilized, shooting to kill, was much more than necessary under the circumstances.    How Zimmerman’s shooting and killing of an unarmed Trayvon has gone uncharged for murder is legally illogical.

The analysis doesn’t end there.  Let’s assume that authorities found Zimmerman’s account of self-defense compelling and believed that he truly felt scared for his life requiring his use of his gun to kill Trayvon.  We know now that Zimmerman’s beliefs that he was in imminent danger and needed to use deadly force would have been unreasonable because of Trayvon’s being unarmed, amongst other factors.  California has a name for such a scenario: imperfect self-defense, also known as voluntary manslaughter.  Again, even if local Florida authorities declined to pursue murder charges against Zimmerman, the fact that they haven’t charged him with manslaughter is difficult to explain.   

No murder charge, no manslaughter charge.   Such a posture is perhaps made more understandable if authorities, based on the state of the evidence, feel hesitation that they could prove such charges beyond a reasonable doubt.   What’s troubling is that Zimmerman wasn’t even arrested despite killing an unarmed teenager.  Authorities might not have had enough evidence to convict Zimmerman of murder, but surely they had probable cause to arrest him.  He hasn’t even been arrested for or charged with a misdemeanor, an infraction, anything.  Arrest him for assault, battery, brandishing a weapon, unlawful discharge of a firearm, disturbing the peace?  Something?  Nothing.   

Kill a young, unarmed black male with your gun, claim self-defense and walk away uncuffed, unscathed, uncharged.   I thought we were past those days in our country.  Apparently not.   

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Feeling Sad for Joe Paterno

News broke tonight that the Penn St. Board of Trustees fired Joe Paterno and relieved him of his duties as head football coach of the Nittany Lions.  Seems as if the entire news media agrees with this sudden turn of events.  Every sports radio talk show host, sports writer and TV personality I’ve heard, read or seen has called for Paterno’s firing and parroted one another’s disgust for Joe Pa’s apparently disturbing negligence.  

It appears that I, along with thousands of Penn St. fans and students, are in the minority.  Joe Paterno deserved better.  He should not have been fired nor forced to resign or retire.  61 years at Penn St. and 46 years as head coach and Joe Pa gets fired via a phone call. Scapegoated.

I feel sad for Joe Pa.

Joe Pa did what he was supposed to do; those who expected him to do more are naive and exhibit a “holier than thou” attitude.  Joe Pa’s graduate assistant reported to him that he observed inappropriate sexual behavior by former Penn St. assistant Jerry Sandusky toward a young boy inside Penn St. facilities.  Joe Pa didn’t ignore what he heard.  He didn’t keep it to himself or sweep it under the rug.  He didn’t orchestrate an elaborate cover up to protect his friend and colleague of over 30 years.  In Joe Pa’s words:  "It was obvious that the witness was distraught over what he saw, but he at no time related to me the very specific actions contained in the grand jury report," Paterno said in the statement. "Regardless, it was clear that the witness saw something inappropriate involving Mr. Sandusky. As coach Sandusky was retired from our coaching staff at that time, I referred the matter to university administrators." Joe Pa reported his friend and the accusations to his superior, his athletic director.  What the AD did or didn’t do with that information was not on Joe PA.  He did enough.  

Popular opinion from media and the public alike is that Joe Pa should have done more.  Before joining that bandwagon sentiment, take a moment to put yourself in his shoes.  Imagine you’re informed that your close friend or colleague of decades might have committed a serious crime.  Would you even think to report it to a superior, let alone the police?  Perhaps it’s just me, but even reporting such allegations about a close friend or colleague to a higher ups would prove tremendously difficult.  But that’s what Joe Pa did; he reported his trusted colleague of over three decades to the AD.  For that, I applaud him.  Joe Pa did more than I and most people would have done in his position.  He was not a witness to the alleged incident nor did he have any specific information that would prompt a mandatory report.  Believing that Joe Pa should have called the police reflects naivety and a delusional perspective.  

I feel sad for Joe Pa.