issue not waived: seeing the water we swim in

I often seen transcripts where something happened that was super unfair, but no one objected because it is just something that happens every single day. I call this failing to see the water we swim in. We are in it. It happened when we were law clerks and no one said anything. None of our more experienced colleagues say anything. The judge doesn’t bat an eye. Usually our clients are tugging at our ears saying this is so wrong and we think “they don’t know anything about the law.”

But what I have found is that sometimes these run of the mill injustices actually do not have cases approving of their rote application. I have made creative arguments, but am shut down because counsel did not object, and why would counsel object on the basis of an argument there is no law on?

Here is my advice. Anytime anything fucked up happens anytime ever in any courtroom anywhere (did I say anytime, place, or universe) object. You don’t know what the objection is, fine. Say Due Process. List all of the amendments, there are only a few that apply to us anyway: 4th, 5th, 6th, 8th, 14th. And just cite the entire fucking California constitution, who gives a shit.

Here are some examples of things I’ve seen:

always imposing search clauses for felony probation, even though there is law saying it must relate to the offense…remember any probation condition should have both a constitutional and statutory (Lent) objection. (See People v. Burton (1981) 117 Cal.App.3d 283, 391 [search condition unreasonable under Lent factors where defendant was convicted of assault with a deadly weapon]; In re Martinez (1978) 86 Cal.App.3d 577, 584 [same]; People v. Kay (1973) 36 Cal.App.3d 759, 761-762 [search condition unreasonable under Lent factors where defendant was convicted of felony assault and felony battery against police officers]; People v. Keller (1978) 76 Cal.App.3d 827, 833-834 [disapproved of on other grounds by People v. Welch (1993) 5 Cal.4th 228, 237] [search condition unreasonable under Lent factors where defendant was convicted of theft of a ballpoint pen].)

various probation conditions such as: no association terms (gang members, felons), permission to move terms, support your family (statutorily authorized, such bullshit), too broad of stay away orders (if a prostitute can’t be banned from prostitution areas because too many men like to get their prostitutes everywhere (In re White (1979) 97 Cal.App.3d 141) come on folks, object)

Apprendi arguments for fines and special terms if they are based on factual findings by the court? E.g. DV fines if no finding was made that this was a DV victim … perhaps it is a sibling, is this a step sibling? Did the jury find this person was related by consignity? What about them apples? Fines are punishment! (People v. Delgado (2006) 140 Cal.App.4th 1157, 1168 [section 1203.097 probation conditions constitute increased punishment for purposes of ex post facto because they make otherwise discretionary sentencing choices mandatory].)

Why can’t you argue a 290 consequence in closing when the cases all say that 290 isn’t punishment? Disclaimer: there may be something saying you can’t argue it but I don’t know.

I don’t understand why we aren’t allowed to ask jurors during voir dire what verdict they reached in prior trials they were on? I did try to research whether this was a court rule or a case or what, but could not find anything. There must be a rule on this right? Because this happens every day. If there is, unless there is some kind of United States Supreme Court case saying it is ok, why not object under the 6th amendment right an impartial jury? It is very relevant whether they convicted or acquitted or hung before right?

package plea deals. I’m currently waiting to see if the Supreme Court will address my never addressed before claim that it is vindictive prosecution to make a plea deal contingent on a co-d accepting it because it punishes one defendant for someone else exercising a constitutional right. Lost this issue in the 2nd. Email for briefing if you’re interested.

Equal protection. People. Equal protection is our best friend. Anytime your client is chirping about how it’s not fair that that dude is getting xyz and he isn’t your EPC alarm should be blaring. Sure, you probably aren’t going to win an EPC claim on the basis that Mr. Client says FNU LNU in Santa Rita murdered 5 people and was given CTS but my offer for petty theft is 8 years. However, there are many times I’ve seen EPC arguments that might be good. For example, possession of a concealed knife where it is in a sheath but concealed. Takes two hands to access. The only justification for a bar on concealed weapons under the 2nd amendment is because we want to prevent surprise attacks where someone approaches a dude and has no idea he has a knife. That is why it is ok to have a non-concealed knife. So wtf is the difference if a dude has to futz with his sheath in a concealed knife? Third-party guy will have warning because our guy is futzing with a goddamn sheath. Like right? EPC bitches. EPC.

Oh, what about the specific vs. general law argument?

What about the argument that the prosecutor improperly added a charge post-px…remember…it must be transactionally related to anything client was held to answer to. Inquire within on the law for that.

Also, I cannot emphasize this enough, DO NOT waive hearings/bench trials on priors. Frankly, I’m sure someone can explain it to me, but I don’t even get why we waive jury trials all the time assuming the issue was bifurcated. Jurors are fucking crazy. Who knows what they’ll get tripped up on where a judge is for sure finding that shit true. I would never waive a bench trial because judges are for sure finding that shit true. I’ve had more than one situation where a lawyer did not waive the bench trial and no one really noticed certain deficiencies in the prior packets. This is a sufficiency of the evidence issue on appeal (but note double jeopardy probably doesn’t apply.) Just make the prosecutor do their job, which they are always bad and lazy at doing anyway especially on this, and get your rubber stamp. We will sort it out later.

Finally, if you have something wacky and you do not know why. Email me. I’ll come up with something.

Until next week.

Just in case you fear no one can hear you through your mask, buy this !

Published by Jenny Brandt

About Me: sociology, african american studies, chicano/a studies, critical race studies, and criminal law scholar. public school kid from kindergarten-J.D. Former public defender. I am a post-conviction guru. Appeals. Sentencing. Withdraw Pleas. Habeas. Published author in the Criminal Law Bulletin and California Defender. "I do it for the joy it brings, because I'm a joyful girl, because the world owes me nothing, and we owe each other the world." Why I started JJC: My PD buddy suggested it. What and who JJC is inspired by: public defenders I have worked for, with, and next to. my clients who have battled things no one should and are still here. innocence and guilt and everything in between. My coworkers, who fight just as hard as the PDs I love, for many of the same reasons. My husband who was once voted "most Christ like" (every Jewish girl's dream). My Corgi who loves everyone. The constitution. Tabloids. My mom, for giving me a voice. My dad, for teaching me what to say. My brother, for teaching me how to say it.

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