When my cantor sent an email calling on our congregation to support BLM, but was sure to include a paragraph condemning the “fringe” part of the protests and the “looters” and those being “violent” who are “taking advantage” of the moment, I was mad. I knew I was mad. I knew it was wrong. I could not immediately articulate why. When I started to see the same sentiment pop up on my various feeds, I became even more mad. I started to know why.

There is a lot out there on what is wrong with these comments which is best understood through looking back to their origin. And, Kareem Abdul-Jabbar’s la times piece, says it all.

But what occurred to me today, when I saw the video of the police murder of Rayshard Brooks is what i’m going to now call: white contingency. After George Floyd, many white folks were willing to sign on to BLM; at least more than originally. We are vocal about wanting to fight against racism, and to “listen” to black folks and try to do better. but there is a contingency: The victim must be perfect. Or must have acted perfectly. The resistance must be perfect. Or must be expressed through perfect means. Of course, white folks are the ones defining what is perfect. we define it on twitter and facebook and instagram…which is aggressive and violent in its own way….but also as lawmakers (paid by police unions), prosecutors (see, e.g. Jackie Johnson), judges (qualified immunity anyone?) and jurors (see zimmerman jury, goetz jury.)

When I finally linked these pieces together I realized why I was angry and tired of reading white folk posts purportedly supporting BLM and/anti racism but, in the same breath, being so sure to make sure that everyone is sure that we do not sign onto “looting” and “property damage” and “violent” protests which was being perpetrated by a “fringe” element. It’s white contingency. Dear white people: This Is Not Our Moment. It is not our moment to define what is justifiable use of force. We have done that. That is why we are here in the first place. This is not our moment to define what the most successful means of dismantling racism is. If we knew what that was and we were so committed to dismantling it as we say we are, then why the fuck are our racist systems so perfectly and solidly in place?

The contingencies themselves are so deep rooted in the racism that is the foundation of this country that white folks don’t even know what we are communicating when we repeat what is now a trite statement of an alliance—racism is bad, there is racism in policing, gotta do something about “systemic racism”, i’m with it. If we do not even notice that we are looking for any and every explanation except racism to help us understand why a cop shot a black man in this and any other murder, we have a lot of work to do. Hard same for not even being able to pause or to listen before inserting our voices about what must and should be done to “support” the movement and be allies or to bring about “real change.”

This is not the moment for contingencies white people. If we are going to say or do anything, there better not be a but.

Series on Netflix I started….first episode was about that Jenny Jones murder where a guy told another guy on that talk show that he had a crush on him and then the crushee killed the secret admirer a few days later. The series appears to be about public cases, not anything about how it is unfair to be tried in the media. Still, the first episode was great. The civil atty who later sued Jenny Jones for the decedent was a caricature of a plaintiff’s lawyer…like the Gloria Allred of personal injury. Was fun to watch. His cross exam of Jenny Jones is one for the books. Also this episode brought back fond memories of that time, Ricky Lake, Jenny Jones, Phil, Maury, Montell, Sallie. Oh and Jerry. I never got into Jerry. Flip side was I watched Maury until probably a few years ago.

This will be a recurring post about how to preserve issues in the trial court for an appeal. The most important thing, as always, is to federalize any objection. Cite the Fifth Amendment always. If your instinct anything is unfair, object under due process and let us sort it out later.

Yesterday’s tip is that we must ensure that any improper visual aid such as a powerpoint is in the court file. I’d suggest first requesting in an in limine that any demonstrative exhibits or visual aids be provided to the defense before presented to the jury. Even if denied, this will help argue on appeal that the problem could have been averted. Once presented to the jury, ask that it be added to the court file.

Today’s tip: when doing a motion for new trial try your best to get the judge to say that he/she already considered your arguments at the time you objected during trial. That is important because sometimes the objection during trial might not be especially clear. Raising it in a motion for new trial will not preserve the issue if it is the first time it is raised (besides suff of evidence.) You are truly setting yourself up for IAC if you raise it in the new trial motion but did not raise it at the time because what could be the tactical reason for doing that? It is of course, risky, to try to get the judge to say this because what if the judge says “no, you never gave me that theory before.” Ways to avert this might be to test the waters, at the very least saying “as I said at the time” in the midst of your argument, hoping the judge doesn’t correct you. Or, you could just go balls to the wall and if anyone claims it is a new theory say “no no no no, I did raise this perhaps it was ‘inartful’ but I’m sure everyone here knew what the issue was. This is just another way of saying ____”(then refer back to how you originally framed it.)

At the end of the day, we are all doing our best. It is so very easy to look at a record and say wow why wasn’t there an objection, or why wasn’t the objection under the right theory. That is why I always say to fall back on due process because it is a catch all. Just like you can always fall back on 352. But remember, 352 doesn’t do shit for anyone federally. So 352 has always got to go with DP.

This will be a recurring post about how to preserve issues in the trial court for an appeal. The most important thing, as always, is to federalize any objection. Cite the Fifth Amendment always. If your instinct anything is unfair, object under due process and let us sort it out later.

Yesterday’s tip is that we must ensure that any improper visual aid such as a powerpoint is in the court file. I’d suggest first requesting in an in limine that any demonstrative exhibits or visual aids be provided to the defense before presented to the jury. Even if denied, this will help argue on appeal that the problem could have been averted. Once presented to the jury, ask that it be added to the court file.

Today’s tip: when doing a motion for new trial try your best to get the judge to say that he/she already considered your arguments at the time you objected during trial. That is important because sometimes the objection during trial might not be especially clear. Raising it in a motion for new trial will not preserve the issue if it is the first time it is raised (besides suff of evidence.) You are truly setting yourself up for IAC if you raise it in the new trial motion but did not raise it at the time because what could be the tactical reason for doing that? It is of course, risky, to try to get the judge to say this because what if the judge says “no, you never gave me that theory before.” Ways to avert this might be to test the waters, at the very least saying “as I said at the time” in the midst of your argument, hoping the judge doesn’t correct you. Or, you could just go balls to the wall and if anyone claims it is a new theory say “no no no no, I did raise this perhaps it was ‘inartful’ but I’m sure everyone here knew what the issue was. This is just another way of saying ____”(then refer back to how you originally framed it.)

At the end of the day, we are all doing our best. It is so very easy to look at a record and say wow why wasn’t there an objection, or why wasn’t the objection under the right theory. That is why I always say to fall back on due process because it is a catch all. Just like you can always fall back on 352. But remember, 352 doesn’t do shit for anyone federally. So 352 has always got to go with DP.

Ive been vacillating between listening and screaming, crying and feeling warm at what I’m seeing, exploding then hating myself for not trying to change minds with gloves but instead with blows to the head, while doing so eloquently for sure, but what does eloquence matter when your words cut with a knife.

I will never land in a place where I know the right way. I will explode if I will, I will blog as an effort to pause, I will embrace my rage and impulsivity and probably hate and love that that is who I am.

A woman on a thread where I called a former neighbor a kkk style trump racist (spoiler alert: truth) said she knows this to be true about this woman but she is responding to her because there may be people who cannot speak up, or feel burdened to, or just need to see that everyone in our community doesn’t feel the same way. It hit me then that surely expressing myself with equanimity and white person myth-propagated “neutrality” has its benefits and will have the same purpose—if not to change the mind of an intentional or ignorantly “unintentional” racist, then to show anyone listening that this will not be tolerated.

I don’t purport to know how any and all black people feel when they read a racist post, but if there is a remote chance that there is one black person who a post or email will strike is watching, then my comments are my version of “better safe than sorry.” My version of being a white woman crossing the street when I see a black man. My version of privileging myself over dehumanizing the declaring. Because it is people like the posters, and mostly the “unintentional” racists, that threaten the lives of black folks most. People who pretend to be anti racist but who want to shine the light away from the work necessary to dismantle racism and instead put those perpetuating racism on a pedestal while appealing to racist tropes while pretending not to know or, even worse, not even knowing.

I’m here to scream. I’m here to cry after I scream and to hate my decibel level. But mostly I’m here to try. Just try. Try to be diplomatic like my brother, even tempermented like my husband, forgiving like my mother, but, most of all, passionate like my father. Try to change minds but not give up when I dont, and to allow myself to get a place of self loathing for not having control that I hate myself so much that I love myself.

Hear to listen [sic intended]. Here to rage. Here to speak and to scream while channeling soto devoci, to teach my kids the lessons i’ve learned but make them better prepared to win over minds. And, finally, here to accept that I am who I am and I can change if only I just try.

Good: Sanchez hearsay/confrontation clause issues are not forfeited if the case pre-dated Sanchez. People v. Perez, S248730.

Great: “We granted review in this case to decide whether a convicted defendant who is placed on probation after imposition of sentence is suspended, and who does not timely appeal from the order granting probation, may take advantage of ameliorative statutory amendments that take effect during a later appeal from a judgment revoking probation and imposing sentence. The Court of Appeal answered this question in the affirmative and, in light of a newly effective amendment to a sentence enhancement statute, ordered four of defendant Douglas McKenzie’s sentence enhancements stricken. We affirm the Court of Appeal’s judgment.” People v. McKenzie, S251333.

Bootsie AF: Copper doesn’t violate Sanchez by testifying a drug is Xanax from eyeballing the pill and comparing it his eyeballing of Xanax as described on online database. Are you kidding me?? People v. Vehyahmatahau, S249872.

I’ve seen a number of interesting issues come up during resentencing hearings for the court to exercise its newly afforded discretion to strike nickle priors or gun enhancements under SB 1393 and SB 620. So, I thought I’d share them. If you’d like citations or briefing contact me at juicejusticeandcorgis@gmail.com

(1)  Dual use of facts: a court cannot rely on the same facts to justify imposing different enhancements. I think this principle should prohibit a trial court from declining to strike a nickle prior or gun enhancement on the basis of aggravating facts that the court relied on to deny a Romero motion or to impose an aggravated or consecutive term at the original hearing.

(2) Reliance on improper facts: I have two cases where judges declined to strike the enhancements after making comments about how the tide is changing and there are all these new laws benefiting defendants so it isn’t even clear that the defendant will serve the full term. This is an inappropriate consideration that, obviously, this is not an enumerated fact to consider in the rules of court on sentencing and there is zero relationship between new beneficial laws and the defendant’s conduct which is what the court is to consider when imposing a sentence.

(3) failure to consider the entire record if it is a new judge: I’m a bit unclear over whether a defendant has the right to a resentencing hearing in front of the same judge who originally sentenced him if this was a trial. There is no Arbuckle right to have the same judge who presided over the trial also sentence you. I would object to a different judge presiding (assuming he/she will be worse). I would also object on the basis that the new judge is not considering all of the appropriate documents or at least make a record as to what the judge is considering. Seems like the judge should consider the trial transcript, probation reports, and any original sentencing memos.

(4) failure to obtain a new probation report: It appears that a trial court does not have a sua sponte duty to obtain a new probation report prior to a resentencing hearing, or that it is statutorily required. However, the law is clear that a court may consider a defendant’s conduct in prison or any new mitigating facts when resentencing a defendant. I’d investigate whether there are any new mitigating facts and request a new probation report if there are.

Really, we need an appeals court to say a cop can’t stop someone for having a weird reaction to the fact that someone in an unmarked car is staring at her and following her, and because she is a woman who crossed the Mexico border recently? This dude is out of control. Thank you Fourth District for shutting this down. (People v. Mendoza E071835.)

Wow. What a great read. I have read my fair share of celebrity memoirs including Faye Resnick’s book selling out Nicole Simpson, RHOC can’t remember her name about her abusive relationship, Kendra’s book, Holly’s book, Chelsea Handler’s book, Sarah Silverman’s book, Andi Dorfman’s book (SOOO BAD), and probably some I don’t remember. This was the best. Jessica Simpson was abused, and alcoholic, was in a number of terrible relationships (read: John Mayer), and she did not hold back. I was never really a fan or not a fan, but I’m rooting for her.

I read Emily Doe’s book “Know My Name.” She is the victim in the Brock Turner case. I have many thoughts.

First, much of what she said about the system applies with equal force to our clients. She really captured how we as attorneys can be so entrenched in the system that we forget that our clients have no idea what is going on or why. So, for example, if we continue to the case or if the DA continues the case, we fail to appreciate what a huge effect this will have on our clients or to consider how stressful the entire process is. We just write the new date on a slip and send them on their way. We should be sensitive to the fact that court dates completely disrupt their lives–not just in having to take off work or find child care–but also in mentally preparing for a stressful appearance in a case that is life altering for them.

What I thought she fell short of doing was stepping back and looking at the situation with perspective. She was so focused on the injustice that she made blanket statements criticizing the system without thinking critically about what the alternative would be. A world where we do not have due process. A world where there are no criminal defense attorneys for people accused of horrendous crimes. A world where innocent people are incarcerated for horrible crimes so that we can avoid re-traumatizing rape victims who were, in fact raped. And, a world where guilty people are convicted without the benefit of ensuring the process went fairly. If someone thinks he has been railroaded, even if he is good for the crime, we cannot expect that this person will reform.

Also, she never said what prison sentence she thought was just for Turner, only that 6 months was wrong and the probation officer twisted her words. She said she wanted treatment for Turner, but did not ask whether the treatment she envisioned would even be available if he was sent to prison, or express any insight or indignation into the fact that it would not be available at Santa Clara County Jail. She expressed outrage that he could afford an attorney and that he benefited from his privilege, but did not explain why someone should not be able to hire an attorney if he can. Would she have been less offended if he had a public defender and why does it matter? Why is the answer to having inequities in sentencing based on privilege to have harsher sentences for the privileged as opposed to lesser sentences for everyone, which are focused on restoration and rehabilitation?

I thought it was weird that the professor who was so vocal in this case (Daubert) essentially outed her as a rape victim by suspecting it was her and then contacting her to confirm. She did not take issue with this so I’m not sure it’s right for me to be offended on her behalf, but how did that professor know she did not take issue with this? What if anyone else had done this? It seemed intrusive, unethical, and hypocritical to me.

I would neither recommend nor not recommend the book. I skimmed through some of it and was captivated by other parts. I think it could have been more powerful if she looked more critically at the problems with our system, including how problematic it is to recall a judge just because you feel one ruling was unjust.