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 2^nd 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 2^nd 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.

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! 

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.

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

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.  

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.   

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.    

In May, the US government executed Osama Bin Laden without any notion of due process, engaging in what I dubbed “Batman Justice“ (see my blog post on the subject).  The assassination received critical acclaim; even Muslim civil rights and religious organizations welcomed the killing, despite the glaring civil rights deprivations undertaken by our government.  CAIR issued a press release titled, “CAIR Welcomes Elimination of Osama Bin Laden.”  ISNA’s press released proclaimed, “Islamic Society of North America Welcomes Justice for 9/11 Victims.”  Essentially, CAIR and ISNA, amongst many other organizations and individuals, sanctioned vigilante justice, which runs afoul of our most basic expected civil liberties.   

With such vast approval of our nation, the US government felt emboldened to continue its vigilante spree.  Due process and the 5th Amendment of the US constitution (“No person shall be deprived of life without due process of law”) became unnecessary to try, convict and punish alleged terrorists.  This ideology culminated today in the demise and murder of Anwar al-Awlaki, a US citizen, by the US government.  Al-Awlaki apparently fell outside the bounds of the constitution, just like Bin Laden.   He never got his day in court to confront the witnesses and evidence against him, to present a defense, to utilize the services of an attorney.  Once again, the US government, much like the lynch mobs that wreaked havoc in our country decades ago, acted as judge, jury & executioner. 

Because of the failure of the majority of our country and citizenry, specifically Muslim organizations like CAIR and ISNA, to stand up against the manner of execution of Osama Bin Laden, we now stand complicit in the murder of Anwar al-Awlaki; his blood is on our hands.  

Last week, I shared my thoughts on the infamous Irvine 11 trial.  Much of my post centered on hypotheticals and assumptions, specifically the inference that the Orange County DA’s office offered the Irvine 11 community service for a dismissal. Fortunately, one of the defense attorneys, Tarek Shawky, read my post and was kind enough to respond (see his comments below my original Irvine 11 essay).  Then, this morning, I saw this powerful editorial written by Reem Salahi and Dan Stormer, two of the other defense attorneys for the accused.  

Consider me informed; no more assumptions and hypotheticals.  As I noted previously, the prosecution of the Irvine 11, at its core, reflected discrimination and an abuse of discretion.  Learning of the disparate amount of time and resources utilized by the OC DA in prosecuting the students only confirms my belief.  

Further, Mr. Shawky’s insight, coupled with the tremendous information from Ms. Salahi and Mr. Stormer’s op-ed, indicate that the 10 students who stood trial never received the opportunity to earn a dismissal. The failure to make such an offer vexes me; these students with no criminal records accused of non-violent protests deserved a chance to avoid a misdemeanor conviction short of trial.  The OC DA’s negotiating posture was unjust and unfair.  Knowing this, I applaud, admire and respect their decision to fight the case at trial.  The Irvine 10’s courage to stand trial and not acquiesce to the OC DA’s manhunt tactically made sense. They had no choice; it was the only path to exoneration.  From a plea bargaining standpoint, what incentive did the students have NOT to fight?  None.  Pleading guilty before trial meant a misdemeanor conviction with probation; it’s exactly what they faced if convicted by a jury after trial.  The students had nothing to lose and everything to gain by going to trial.  

Although I may not have agreed with the students’ tactics on the fateful day when they protested Michael Oren, I now stand informed, and now, from a distance, I stand wholeheartedly with the Irvine 11. 

Dozens of thoughts cycled through my mind today as I anticipated and then heard the Orange County jury’s verdict for the Irvine 11 (although only 10 were tried).  The Orange County District Attorney charged the 10 students, for those unfamiliar with the case, with a misdemeanor violation of California Penal Code Section 403 which states in part, “Every person who, without authority of law, willfully disturbs or breaks up any assembly or meeting that is not unlawful in its character… is guilty of a misdemeanor.”  The prosecution also charged the students with a violation of California Penal Code Section 182, commonly known as conspiracy, which states in part, “If two or more people… conspire to commit any crime… they are punishable…”  The students were alleged to have “conspired” to disturb an assembly or meeting. The charges arose from an incident where the students disrupted a speech by Israeli Ambassador Michael Oren on the UC Irvine campus. Today, the jury found all 10 students guilty of both misdemeanor charges.

Charge

The Orange County District Attorney’s decision to charge these students with misdemeanors shocked and startled me; a true injustice and ill-advised use (and abuse) of authority.  Although the charged code sections do exist on the books, they are obscure.  In fact, in my nearly 4 years as a public defender in the state of California, I have never seen anyone charged with violating Penal Code Section 403.  More telling, I didn’t even know it existed until these 10 students were charged.  In as much, it was as if the Orange County District Attorney went out of their way to find a charge that would fit the students’ behavior.  The prosecution apparently had the students in the crosshairs, singled them out, and utilized an obscure statute to get their pound of flesh. UC Irvine authorities had, through their own processes, administered punishment on the students and their affiliated campus group.  Charging the students with misdemeanors served no rational purpose and essentially piled on further scrutiny, attention and resources on an event that had been dealt with and adjudicated.  

The students, as far as I know, had no criminal history or prior history of school disciplinary issues.  They deserved to serve any punishment levied by the school and move on with their lives without being subjected to a criminal prosecution for their nonviolent behavior.  Such was the opportunity afforded to me and my schoolmates when I was a freshman at UC Berkeley in 2000.  That year, the university selected United States Secretary of State Madeline Albright to deliver the commencement address.  Dozens of students (and non-students), including myself, stood up during her speech at the Greek Theater and repeatedly interrupted her words, protesting against the United States sanctions against Iraq and her attempts to justify the deaths of thousands of Iraqi civilians and children. Security authorities removed me and my comrades from the event, took down our information and let us on our separate ways.  No school disciplinary proceedings, let alone criminal charges.   On the contrary, the Irvine 11 not only received the wrath and discipline of campus authorities, they were also accused of crimes by the state. Unfair and unjust.

Pretrial 

After anyone is charged with a crime, misdemeanor or felony, several stages of pretrial negotiations and discussions occur where alternatives to trial are discussed.  In fact, as most know, most charged crimes don’t end in trials; instead they end in some sort of plea bargain.  In the case of the Irvine 11, my assumption is that similar negotiations took place.  

As a public defender representing one of the charged Irvine 11, my goal would have been to secure a deal of community service for dismissal of all charges. If such a deal were offered to my hypothetical client, I would advise them to take it; do the service hours and move on.  Surely, it was offensive that charges were levied and a trial would provide an opportunity to prove a point and be exonerated.  But fighting the case at trial, with risk of misdemeanor convictions, jail time and fines, would not be worth it relative to the chance for a dismissal.  The ultimate goal in a criminal case is a dismissal or not guilty verdict.  If it takes doing some community service hours, suck it up, finish the hours and walk out a free man/woman.  On the other hand, if the students’ goal was less about a dismissal and more about putting their plight on display for the world to see, then only trial would serve that purpose.  

One of the charged Irvine 11 received and accepted an offer of community service for a dismissal of all charges against him.  One would assume that the other 10 were offered the same deal. The students should have been given the opportunity to earn a dismissal given their lack of criminal history and the minor nature of the charges. If they weren’t given such an offer by the District Attorney, that would be injustice #2.    Absent an offer to earn a dismissal, the students had no choice but to fight the case at trial to have a chance at exoneration.

However, if the DA presented the same offer as given to defendant number 11, the Irvine 10’s decision to reject it and fight the case at trial was unwise; the case should have never gone this far.  

Trial

Jury trials are ridden with inherent risks.  Juries are not lawyers or constitutional scholars.  They can and will do wacky, unexpected things.  No matter how defensible a case might be or how unjust some charges may appear, when the jury retires to deliberate after a trial, anything, including resounding guilty verdicts, can happen.  In as much, the unpredictability of juries would be another reason to avoid trial altogether, especially if a path to a dismissal were offered to the Irvine 11.

Although the charges against the Irvine 11 screamed of selective and discriminatory prosecution, the crime alleged, on the surface at least, fit the the conduct exhibited by the students.  I was not privy to what specific evidence was presented at trial, but it appeared that the students, as the law stated, did in fact willfully disturb an assembly or meeting and did conspire, or agree, to do so.  By the letter of the law, from my view from hundreds of miles away, it appears that the jury got it right by finding the students guilty.  As Erwin Chemerinsky, dean of the UC Irvine School of Law, noted, the students had, indeed, broken the law.  Any expectation to the contrary would have relied on some form of jury nullification; for the jury to find the students not guilty, they essentially would have had to disregard the charged crime and the law surrounding it and find that the code section charged was unjust and should not apply to the Irvine 11. Surely, I hoped and prayed that the jury would utilize such logic and find the students not guilty.  

However, as much as people are condemning the jury verdict as unjust and a blow to free speech rights, it merely was the jury doing their job: applying the law, as stated, to the facts of the case. Professor Chemerinksy stated it succinctly:  “There’s no free speech right to disrupt an event.”  The jury didn’t attack or diminish our free speech rights; the California legislature did when it enacted Penal Code Section 403 and the Orange County District Attorney did when they charged the students with crimes.  

Growing up part of a relatively affluent, educated, immigrant, practicing Muslim community in the Bay Area, I noticed a sense of immunity and invincibility amongst us.  Our brethren felt above issues that dogged and burdened society and other communities, specifically domestic violence, drugs and all things criminal.  When these topics would arise, our Muslims would create two camps, us and them.  Our young people didn’t smoke or drink, their kids did.  We didn’t commit crimes, “Americans” did.  Essentially, we convinced ourselves that these issues, normal and pervasive in most communities, were beneath and beyond us. By accepting this myth as true, the Muslim American community neglected very real problems that plague us and allowed these epidemics to fester and multiply.  

In my over three years as a public defender, I have seen firsthand that substance abuse, domestic violence, alcoholism and criminal behavior afflicts the Muslim American community in much the same way that they burden the general populous. Somehow, perhaps not by coincidence and perhaps by divine intervention, I have been assigned to represent nearly a dozen Muslim clients in recent years.  These clients, some born Muslim and others converts but all self-identifying as Muslim, have been charged with domestic violence, drug crimes, violent crime, sex crimes. In addition to these clients, as word spreads in the local Muslim community that I work in criminal defense, I get calls regularly from community members arrested or charged with various criminal activity.  It’s difficult to count the number of local Muslims or their family members who have called me seeking advice about their pending criminal matters.  The past few weeks alone I feel like I get a call every day.  Further, it’s not uncommon for me to run into Muslims at the courthouse in San Jose attending their court appearances for alleged criminal behavior.  Through these experiences, I learned very quickly that our imaginary bubble has burst.  The Muslim community, despite its delusions to the contrary, is not immune from criminality.  

I write this post not to air my community’s dirty laundry, but instead to call attention to and attempt to rectify a growing and glaring problem, that if left unaddressed, could spiral out of control.  Recognizing the existence of Muslim (alleged) criminality is an important step.  But what solutions and remedies exist to this newfound challenge?

First, a dramatic need exists for Muslim criminal defense attorneys.  The calls I receive on a consistent basis from Muslims are telling; they indicate that the Muslim community needs competent, qualified Muslim attorneys versed and trained in criminal law to help address situations as they arise.  The development of this community resource can ensure that criminally accused Muslims have professionals they can call on in times of need and despair.  Further, lawyers that understand Muslim religious and cultural norms perhaps can more effectively advocate on behalf of Muslim clients.  

Second, the community must work to establish institutions that address these issues in a more proactive manner.  Thankfully, domestic violence shelters and programs, such as NISA (North American Islamic-Shelter), already exist to support domestic violence victims.  The next step:  Mosques and community centers can and should develop domestic violence counseling, parenting and/or anger management programs that can help domestic abusers rectify and overcome the roots of their alleged domestic indiscretions.  For example, in California, those convicted of domestic violence crimes must attend a certified 52 week batterer’s program as a condition of probation. Others accused of less serious domestic violence crimes often attend 16 week anger management or parenting programs upon court order. Our community’s goals and master plan should include the creation of programs that would satisfy state requirements and allow Muslim domestic abusers (and non-Muslims for that matter) to find solutions with an infusion of Islamic principles and guidance.  

Substance programs must develop in our communities to address alcoholism and drug use and addiction from an Islamic perspective.  I have had several Muslim clients suffering from chemical dependency issues that have sought and received treatment through Christian based organizations such as AA/NA or Salvation Army. Often times, these Muslim clients reside in Christian treatment homes that potentially could compromise their values and faith.  These Christian programs, however, serve, help and welcome our Muslim brethren and we should be grateful that their efforts exist, essentially fulfilling a void that we have yet to even acknowledge, let alone address.  Imagine the beauty and power of Muslim group homes, residential treatment programs and meetings that serve all addicts, Muslims and non-Muslims alike.  

Additionally, we must work to support the growing numbers of Muslim convicts and/or parolees amongst our community.  Obviously, hundreds/thousands of inmates convert to Islam while incarcerated.  These numbers supplement those already Muslim who suffer convictions resulting in jail and prison terms.  These Muslims exit prison doors with little support, underlying drug dependency issues and financial struggles. As a community, we cannot neglect these brothers (and sisters) and leave them to fend for themselves. Support groups, mentorship programs and financial assistance must develop to specifically cater to Muslim convicts and aid them in leading productive lives and avoid recidivism.  I have begun to develop and produce this “Ansar” project (Ansar meaning helper) for Muslim convicts and hope that others can join my humble efforts in creating a new institution that could help this under-served population within the Muslim community.  

In sum, the Muslim community cannot afford naivety; we must realize that Muslims often engage in or are accused of criminal or destructive behavior.  The community, in response, must develop the human resource, namely Muslim criminal defense attorneys, to support and assist community members in times of need. We must also create and establish institutions to combat the roots of criminality in our community.  Finally, Muslim convicts and/or parolees need the community’s support in their quest to reintegrate with society and achieve liberty and happiness.  

Allahu Alim (God Knows Best).  

As details emerged about Osama Bin Laden’s death and after listening to President Obama’s address, it became clear that the US Government and military acted as the prosecution, jury, judge and executioner in the “trial,” or lack thereof, of Osama Bin Laden.  The goal of the military mission was to kill, not capture, OBL. 

Everyone accused of a crime, no matter how heinous the criminal and how reprehensible and certain the accusation, deserves the right to a trial, the right to present a defense, the right to confront and cross-examine their accusers, the right to be presumed innocent.  OBL deserved no different.   

The US government and military instead acted as vigilantes, imposing their own form of Batman justice.  We as a nation summarily took justice into our hands, setting all thoughts of due process aside.   Our government deprived OBL of rights that we want afforded to us or our family members when accused of criminal activity.  

Ironically, several years ago, Taliban officials were willing to turn OBL over, but only under certain conditions, including “evidence that Bin Laden was behind the September 11 terrorist attacks in the US.”  President Bush’s reaction and rhetoric was startling and very telling: “There’s no need to discuss innocence or guilt. We know he’s guilty”.  Apparently, the presumption of innocence didn’t apply to OBL.  We as a nation, our government and military, had presumed OBL guilty, contrary to the very Constitution that we revere and fight to protect.      

This type of vigilante justice and presumption of guilt prompts thoughts of Batman, but also of mob “justice” that manifested in lynchings of African-Americans in our country not so long ago.  Black men accused of crime never got their trial; white mobs took it upon themselves to determine guilt arbitrarily and then execute the criminally accused without any regard for due process.      

Perhaps OBL was a murderer and deserved to ultimately die, but summarily killing him without due process did not serve him or anyone justice.  

This post comes a bit tardy, but still relevant (hopefully).  The trial and sentencing of BART police officer Johannes Mehserle evoked tremendous emotions and debate, so I thought I’d chime in with my perspective.  

Charge

The fact that the Alameda County District Attorney charged Mehserle with a crime, let alone murder, should be considered a victory for those who cry afoul at police brutality and violence against minority populations.  Police officers beat, maim and kill civilians on daily basis and generally avoid criminal prosecution because society has long afforded cops wide latitude to utilize force that would otherwise merit criminal scrutiny. The concern for  police officer safety justifies their almost every use of violence while on duty.

So when my clients get tased and beaten or when a police officer shoots and kills a Vietnamese woman wielding a vegetable peeler, the police officers escape consequence. Instead, they often receive applause and acclaim. For the DA to charge Mehserle, in a society that widely sanctions police violence, remains revolutionary, a groundbreaking step to deter and combat future excessive police use of force.  

Verdict

Oscar Grant died.  Mehserle killed him.  The question remained to what degree, if any, Mehserle deserved to held accountable for the unnecessary deprivation of human life.  Did Mehserle intend to kill Grant?  If so, did he do so with malice?  Or did he do so because he reasonably believed that his life was in danger or because he believed his life was in danger but that belief was unreasonable?  Or did Mehserle not intend to kill Grant but act with criminal negligence?  Or did Mehserle accidentally kill Grant that did not involve criminal behavior?  The jury had to grapple with these questions, amongst others, as they deliberated. 

For the jury to convict Mehserle of murder or voluntary manslaughter, they would have had to believe he intentionally killed Grant.  Although many wanted this result, the evidence simply did not support that conclusion.  No matter how much we might believe that police are evil, it remains nearly impossible that Mehserle intended to kill Grant on that fateful night.  It doesn’t make sense for even the most reprehensible and vicious police officers to openly kill a civilian in a public setting with dozens of eyes watching. 

The jury got it right. Mehserle didn’t intend to kill Grant but did act with extreme negligence.  Involuntary manslaughter stood as the only logical result under the circumstances.  Those who protested, looted and rioted after the jury reached their verdict likely did not have reasonable expectations.  They hoped for and wanted a result that had little chance of occurring. 

Sentencing    

The jury found Mehserle guilty of involuntary manslaughter and found true a gun enhancement that indicated they believed that he intentionally used his firearm.  All told, Mehserle faced a sentence that involved either up to a year in county jail followed by probation or 2, 3, 4 or up to 14 years in state prison.  The jury findings, however, were inconsistent because for them to find involuntary manslaughter, they decided that Mehserle did not intentionally kill Grant and therefore found, implicitly, that he did not intentionally use his firearm.  The gun enhancement finding made no logical sense.  The judge, in striking the gun enhancement, made an appropriate legal ruling.  

As to the 2 year prison term that the judge ultimately imposed, the judge got it right.  We had a sworn peace officer with no criminal record who killed someone while on the job.  He likely had tremendous support from his colleagues and family.  Such factors, amongst many others, weighed heavily in his favor in the eyes of the judge.  It would not have been a shock, therefore, for the judge to give Mehserle only up to a year in county jail coupled with probation.  In fact, I expected as much.  It came as a relative surprise that the judge sentenced him instead to a 2 year prison commitment with credit for whatever time Mehserle had already served, the “mitigated” term of imprisonment.  Again, those who protested the result likely had unreasonable expectations about the sentencing.  

Many have expressed dismay that Mehserle received credit for the time he already served and that he be free before serving all of the two actual years in prison.  This is not some benefit that was afforded to Mehserle alone.  All those criminally convicted receive credit for whatever time they serve prior to sentencing.  They also rarely ever serve the entirety of their prison commitment either except in very unique cases.  In fact, most criminals sentenced to a prison term only serve 1/2 of their allotted time. 

Many have also voiced concern that Mehserle’s sentence was similar to or even shorter than Plaxico Burress’ for shooting himself or more abbreviated than sentences doled out to people convicted of relatively less significant crimes such as drug possession.  In fact, I have had clients sentenced to prison for 2 years for simple possession methamphetamine for personal use.  Unfortunately, these are examples of the true inequities that exist in America’s, and specifically California’s, justice system. 

Under California’s legal structure, it remains perfectly normal and somewhat too common that involuntary manslaughter involving the death of an innocent man like Oscar Grant or violent crimes can merit the same sentencing as petty thefts or simple drug possession.  These inequities extend beyond California’s borders and permeate the entire criminal justice system in the United States.  How can the punishment for shooting yourself in the leg be the same as for shooting and killing Oscar Grant?  Because lawmakers have structured our justice system to allow for such seemingly illogical results.  In as much, protesters shouldn’t picket or riot against the judge’s sentencing of Johannes Mehserle; such a result was expected and perfectly reasonable in our legal structure.  Instead, we should demand a system wide overhaul of the sentencing schemes that allow for and produce these tremendously inequitable sentences on a daily basis. 

Legendary Hair

Prickly

Black hairs scatter across the sink and

Bathroom floor

A mess my sister deplores

One by one, they descend from

My face to the drain

A beard takes form on my skin,

Fuzz that traces its history

Through generations of hair

A storied past of strong men with

Paramount belief

The hair upon my face

Connects to that of my brother,

Both which extend

From the follicle roots of my father,

a distant cousin beard of

Malcolm’s,

A great great grandson growth of

Muhammed’s.

A black mass that lines my face with a

Deep legacy

Of obedience

Of submission

to Allah

Islam

My beard remains short and trimmed

But joins a communal beard

That grows long, thick and

Unfettered

survives razor blades and norelcos,

shines through shaving cream with vibrance of

Red, white, grey, black, blonde,

Legendary hair that flows from the faces of

Muslim men.