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Monday Roundup

Nothing of significance happening in the courts, so let's take a look around the web.

Demon weed.  The Framers, fearful of too much democracy, did not provide for referendum as a means of resolving policy disputes, but the states have rushed to fill that vacuum.  No fewer than 162 measures have been certified to appear on state ballots this year, double the amount from 2014.  (Although well down from the record 274 in 1998.)

Besides taxes, gun control, and the minimum wage, the big ballot issue is marijuana legalization:  five states, with 82 million people, will be voting on allowing recreational use, while another three would allow use for medical purposes.

Almost half those people live in California, but despite the state's reputation, prospects for legalization remain uncertain.  The state's voters adopted medical marijuana reform two decades ago, but they rejected legalizing the stuff in 2010, and the current polls show a sharp divide among the electorate.

And among everybody else, too.  The name John Roselius might mean nothing to you, unless you remember this commercial:

That's him explaining how marijuana fries your brain.  That was then.  He recently told Rooster Magazine - yes, Rooster Magazine - that he's voting for Prop. 64, the California legalization proposal.  "I'm 100% behind legalizing it, are you kidding?  It's healthier than alcohol."

While "it's healthier than alcohol!" seems unlikely to become the battle cry of the pro-legalization forces, it does point inadvertently to another problem for their side.  According to the National Highway Traffic Safety Administration, the percentage of traffic deaths in which at least one driver tested positive for drugs has doubled over the last decade.  One in eight fatal crashes in Colorado last year involved a driver who tested positive for marijuana alone.

They blinded me with science.  If you're a fan of CSI or one of its spinoffs, you probably don't remember the part where one of the analysts pulled a gun on another, or threw a 6-inch metal plate at a co-worked.  Then again, Michelle Yezzo wasn't part of the cast of CSI.  She was a forensic analyst employed by BCI for 32 years, though, and as this story makes clear, her colleagues and fellow analysts found her behavior so erratic they became concerned about her mental health.

Others worried about the quality of her work, and especially the possibility that she was slanting evidence in favor of the prosecution.  One judge ordered the release of Donald Parson after he'd served 23 years for a murder conviction, finding that evidence that Yezzo "will stretch the truth to satisfy a department," coupled with her behavioral problems, "casts grave doubts about her credibility."

Not to Attorney General Mike DeWine; his department examined 100 cases Yezzo handled, and found no problems.  Whether that will hold up is open to question:  another murder defendant convicted on the basis of Yezzo's testimony, who came within two weeks of being executed, has applied for a new trial, on the basis of a retired FBI agent's report which found Yezzo's conclusions baseless.

Public shaming.  Johnny Baca's case is all too typical.  He was convicted of murder in California in 1995, based largely on the testimony of a jailhouse snitch.  The snitch claimed he received no benefit from his testimony, and the state actually called the prosecutor handling that case, Robert Spera, as a witness in Baca's trial to back him up.

The prosecutor lied; the judge in the snitch's case reduced his sentence by four years, with no objection by the state.  The California court of appeals affirmed the conviction, finding that Baca would've been convicted anyway. 

The case worked its way through the direct appeals and post-conviction, and eventually wound up in oral argument before the 9th Circuit on a habeas petition.  Good luck with that.  Congress passed a law in 1996 greatly restricting habeas relief.  The statute, and the way the Supreme Court has interpreted it, all but required Baca to show that the state judges who upheld his conviction should have been probated. 

And so Baca's lawyer went through the little kabuki theater, and when he sat down there was no indication whatsoever that the court was going to reverse the denial of Baca's petition.  But then a funny thing happened.  The first question from the bench to the prosecutor was this:

"Do you concede that Mr. Spera lied on the stand?"

The state's attorney hemmed and hawed, but the judges piled on.  They asked whether the prosecutors - Spera and the one in Baca's case - had been disciplined, and of course they hadn't.  "The prosecutors are going to keep doing it," one judge said, "Because they have state judges we are willing to look the other way."

That judge was Alex Kozinski.  He's a Republican-appointed libertarian who has gained fame in legal circles for his caustic opinions, usually criticizing the government.  (When asked when it's appropriate to use humor in an opinion, he replied, "If it's against the government, it's always appropriate.  The government needs to be made fun of as much as possible.")

But he's famous for something else:  he has no qualms about naming and shaming prosecutors who've engaged in misconduct.  He wrote a 1993 opinion castigating a federal prosecutor for misconduct, calling him out by name no fewer than 49 times.  So when Kozinski announced, "It would look terrible in an opinion when we--when we write it up and name names," and pointedly asked, "Would your name be on there?" ears perked up.  Kozinski suggested that the state would be well-advised to "work something out," because if the 9th Circuit decided the case, "I don't think an opinion is something that is gonna be very pretty."

The state decided it wouldn't be pretty, indeed.  Kamala Harris, the chief prosecutor, is now running for a U.S. Senate seat.  After the oral argument, her office announced that, "in the interests of justice," the state was consenting to a summary reversal.  Baca will get a new trial.

The 9th Circuit video-tapes its oral arguments.  Here's the one in Baca's case.  The fun starts at the 16:00 mark.  It should be mandatory viewing for prosecutors.  And appellate judges.


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