WRONGFUL CONVICTION -- SO EASY A CHILD CAN DO IT

An accusation by a child of sexual abuse has to be taken seriously.

However, sometimes the child will lie when he/she accuses a person of abuse.

Why would a child lie? There are many reasons for a child to lie. But, in the cases I have seen, the child is lying in order to control the behavior of the parental figure. A child who has oppositional defiant disorder can be adamantly opposed to ANY parental control. As the parent tries his/her best to control the child's refusal to follow simple rules, such as get ready for school, fold your clothes, do not see dangerous 'friends', the child may decide to control the parent by threatening to accuse the parent of child abuse. If the parent continues to correctly discipline the child, the child may carry through with his/her threat and call Child Protective Services or the police.

Sometimes, when the parental figures are separating, the child realizes that the other parent will be an ally in his/her false charge of abuse.

When charges of abuse are made, the police and the prosecutor do NOT allow the person making the charges to withdraw the charges. This refusal to allow withdrawal of the charges makes the situation MUCH WORSE. Imagine that IF, when you said, "I HATE my parents, they are SO UNFAIR, I wish they were DEAD," the police and DDA shot them dead for you. (And if you think convicted child abusers do not often wish they were dead, you have NO IDEA of what they go through as a consequence of the conviction.)

REAL ABUSERS, who get away with it for years, are generally VERY CHARMING AND PERSUASIVE PEOPLE.

By convicting the innocent, you make your statistics regarding child abuse look great. You are able to say, if someone is arrested for child abuse, we will get a conviction. Often the conviction is gotten by setting the bail high so the person is in jail while waiting for the system to work. Often, the conviction is gotten by ignoring evidence such bruises on the parent. Often, the conviction is gotten even if the allegedly abused child takes back his/her accusation. Often, the conviction is gotten by overcharging the case. (This is when the prosecution charges an obvious misdemeanor as a felony, so they can plea bargain for a misdemeanor guilty plea.) Often, a public defender is denied, as the person arrested does not qualify for a public defender, but cannot actually afford a private attorney.

BY CONVICTING THE INNOCENT, YOU ARE ABLE TO IGNORE THE REALLY GUILTY. You know, those charming men who do it again and again. THOSE WHO REALLY ABUSE CHILDREN generally leave physical evidence. Sometimes that physical evidence is an entire back yard full of tents and toys.

Luckily, children are not very good liars. The child may say he/she was locked in a room which has an easily accessible window and door to the outside. The child may say that the parent is unfair in discipline. The child may say that something happened 30 times, but when asked to describe each event, can only remember one event. Unfortunately, the statements of abuse are taken as the truth, and every other statement the child makes is ignored.

CHILD ABUSERS almost always make friends with the child. They give the child toys or access to adult activities.

OF COURSE, some abusers do hold the child captive, but such captivity leaves physical evidence behind.

CHILD ABUSE CHARGES, without physical evidence, should result in mandatory counseling for both the child and the parental figure. Let the child decide if he/she should withdraw the charges.

BY PROSECUTING these cases, you are damaging both the parental figure and the child. Can you IMAGINE living with the guilt of having destroyed your family because you lied about child abuse that did not happen?

THE BANKS ARE PAYING US BACK!

So far USA banks have PAID BACK the USA to the tune of $4 and 1/3 BILLION dollars.

How cool is that?

GET US BACK TO WORK

Economic growth in the US is fueled by areas like Silicon Valley where we come up with new toys and better ways to get things done.

If everyone had health coverage, some of the brilliant people with brilliant ideas would feel comfortable in investing their savings, would stop looking for jobs, and would start a new little company that might become the next Google or Ebay.

Small companies would be able to hire the older and wiser without worrying that they cannot then afford to provide health insurance.

You would free the geniuses who might bring you the solution to YOUR problem.

Universal health care is extremely important for our long term economic recovery.

MORE INJUSTICE IN SANTA CLARA COUNTY

On Friday, August 21, 2009, there was a hearing in Santa Clara County regarding a withdrawal of a guilty plea for someone who is being deported as a criminal.

When I took the case, the first thing I did was to go down to the courthouse to get the ENTIRE file on this matter.

Because it is an old case, from 1997 and 1998, I wanted to be certain that the court had followed California law and advised my client that there would be immigration consequences if he plead guilty to the crime of sexually abusing a child.

My client had told me that he had NOT been advised of the immigration consequences of the plea. He stated that he had plead guilty because they would then let him out of jail so that he could feed his family. He said that he remembered that they had advised him that he would have to register as a sex offender, but he had NO IDEA how that would ruin his life.

Because I am VERY WARY of charges of sexual abuse where there is only one witness and there is NO physical evidence, I took his case. BTW, my client has his green card, so he was in this country legally.

The court files that I paid for were extremely confusing. The court was using a one page, dense, check the boxes form, for guilty pleas and sentencing hearings. The same form was used for everything. The form is impossible, even for legal professionals, to correctly interpret. I will attempt to put the image of these forms in a follow up blog.

In my client's case, it was unclear even when the guilty plea was taken. The court said the guilty plea was taken in November 1997. Homeland Security said the conviction (the same as a guilty plea) was in March 1998.

In my clients case, the form for the November 1997 hearing, which may have been where he plead guilty, had a check mark by the part of the form that said, "____ immig". The court form for March 1998 was NOT check marked on the part of the form that said, "_____immig".

California appellate courts have stated that the immigration advisement must be done is a particular way, by stating clearly ALL of the state law, California Penal Code section 1016.5. A clerk's notation is NOT enough evidence that the law was obeyed. Unfortunately, another appellate court allowed collateral evidence that a guilty plea was correctly taken, by having a judge testify that he had ALWAYS followed the law correctly.

When I got the DDA's (Deputy District Attorney) response to my motion to withdraw my client's guilty plea, I was surprised to see an attached police report, and an attached purported felony docket, which is presumably part of the court record in this case. I was NOT surprised to see declarations from a DDA and a judge stating that the DDA and the Judge had a habit of correctly giving the immigration advisement.

Police reports are inadmissible in California as hearsay upon hearsay. Additionally, the DDA seriously misrepresented the police report by saying that my client had touched the child's clothed breasts numerous times. The child finally agreed to tell the investigator about ONE TIME that my client touched her clothed breasts. That time was SIX MONTHS prior to the investigation. NO ONE explained to my client that the law says that illegal touching of breasts has to be done in a LEWD OR LASCIVIOUS manner. (Hugging your child is not sexual abuse.)

The DDA also included a 'felony docket' that had not been included in the court file I was given.

I made every effort to have my client present at the hearing in Santa Clara County. I filed a Writ of Habeas Corpus Ad Testificandum to have the Santa Clara County Court order Homeland Security to bring my client to the hearing. On a Friday, the Judge told me to file a brief on the matter. On the following Monday, the Judge denied my Writ. Additionally, the DDA told Homeland Security that it was unnecessary to bring my client to his hearing.

The DDA also included Declarations from another DDA and the judge who allegedly heard my client's guilty plea.

At the withdrawal of guilty plea hearing, I asked the judge to strike as inadmissible, the police report, the 'felony docket', and the Declarations. I stated that the police report and the Declarations were hearsay, and that the 'felony docket' lacked foundation as it was not kept in the clerk's file of my client's case.

It should be noted that the right to be present at a hearing to confront the witnesses against you, and the right to cross-examine witnesses, are rights which are protected by both the US and California constitutions.

Not only did I lose my motion for withdrawal of the guilty plea, but the judge allowed the hearsay and the 'felony docket' to be admitted.

AT THIS POINT EVERY ATTORNEY IN THE ENGLISH SPEAKING WORLD IS SAYING, "SAY, WHAT?"

(It could be that every attorney in the non-English speaking world is also appalled, but I do not trust translations, as I have seen too many translations of the Bible, each of which reads differently. I am hopeless at learning other languages, having failed to learn Latin, Spanish, French and Russian, in that order.)

IF YOU ARE UPSET ABOUT THIS INJUSTICE, please help with the appeal by donating money to www.PamelaSmithCenterForLawAndScience.com

IF YOU HAVE PRACTICED CRIMINAL LAW IN SANTA CLARA COUNTY, you can help by sending me transcripts of guilty pleas by non-citizens taken after October 1997. I do not think that the local courts actually gave warnings of immigration consequences until after 9/11/2001.

THIS INJUSTICE HAS TO STOP. WHEN A COURT FEELS FREE to deny a motion before the requested brief can even be filed, something is very seriously wrong.

PAYING FOR HEALTH CARE -- LEGALIZE AND TAX MARIJUANA

The United States of America could easily pay for universal health care if we legalize and tax marijuana.

The Federal Government could put a 100% tax on marijuana which would be dedicated to health care. The law could allow those states that legalize marijuana to put a 50% tax on marijuana, to be used for anything the states wish to use it for.

We could put a tax exemption on marijuana sold by prescription.

WHAT KIND OF UNIVERSAL HEALTH CARE

Frankly, I do NOT CARE what kind of universal health care plan congress passes. All of the plans I have looked at have their good and bad points.

The new plan for a cooperative health plan has merit. It means that THOSE WHO ARE USING THE PLAN, get to help decide how the plan will work once it get started.

WE NEED UNIVERSAL HEALTH CARE IN THE UNITED STATES OF AMERICA.

A GOOD DEATH

I have helped care for two people who died of terminal cancer. Both people wanted to die at home. One was able to die at home and one died in the hospital.

The difference was that home care was available to the person who died at home. There is NO WAY the team of caretakers who took care of my friend who died at home could have done it without the help of home health care provided by Kaiser. We could not bathe her when she could no longer stand up. Kaiser sent someone to bathe her three times a week. The home health people trained us in how to care for her, and provided the drugs that kept her from having too much pain.

You do not have to die in a hospital connected to tubes. It is actually less expensive to provide home health care than hospital care.

NO ONE involved in health care decisions is going to allow you to die at home, unless, when you were clearly able to understand the decision you were making, you made the decision to die at home. ALL HEALTH CARE PEOPLE will err on the side of caution. Without a Health Care Directive, YOU WILL die in the hospital connected to tubes and they will revive you as often as necessary to keep you alive until they can no longer keep you alive.

IT IS YOUR CHOICE HOW YOU DIE. But you MUST make that choice while you are well enough to choose.

A California Health Care Directive, sometimes called a Power of Attorney for Health Care, is available at www.LawandLaws.com Click on forms. This form does not require a notarized signature, but I recommend a notarized signature. Do NOT have the witnesses be people who are named in the form.

Congress has been trying to help with this by offering counseling regarding end of life decisions. It was never intended to make your decision for you. It is a way to choose to HAVE A GOOD DEATH.

END OF SUMMER FUN WITH KIDS

Two fun experiments:

WATER, ALCOHOL AND OIL

You will need three clear drinking glasses, cooking oil, several bottles of rubbing alcohol, and a large eye dropper. It may help to have a long, thin tool available.

Mix the water and alcohol in three glasses. Use two parts alcohol to one part water in the first glass, half and half water and alcohol in the second glass, and two parts water and one part alcohol in the third glass. Carefully put a large drop of oil into the center of the liquid in each glass. In one of the glasses, you should get a ball of oil suspended in the liquid. You can carefully add water and/or oil to get the 'ball' centered in each glass. If the oil breaks up, use a thin tool to 'grab' the oil pieces and guide the pieces back into a ball.

My child took this experiment to 'show and tell'. At recess, someone open the glass jar to get out the 'ball'.

This experiment is thanks to the San Jose Mercury News.

VACUUM CLEANER BALL

If you have a shop vac type vacuum, which also blows air, then you can suspend a large, light weight ball in the vacuum cleaner air flow. The air needs to be blowing outward, and the hose to the vacuum has to be almost upright. A little experimentation and your ball will twirl in mid air.

The ball we used was about basketball size, but was much lighter weight. The inexpensive balls at ToysRUs or the grocery store work well. (The kind that they keep in the tall wire baskets.)

This experiment is thanks to the San Francisco Exploratorium. If you are in the area, the Exploratorium is a must for people who love playing with science.

MY INSURANCE IS GREAT -- BUT I DO NOT WANT TO SHARE

There is irony in the attitude of the elderly and the veterans who are upset that they may lose the benefits of Medicare and/or veterans' hospitals.

It is an even sadder version of the "My insurance is great, so I do not care about anyone else."

It is amazing to hear, "Do not take away my Medicare and/or veterans' benefits," in the same sentence as, "the federal government always messes up whatever they do."

The World Health Report 2000, by the World Health Organization, ranks our health care system performance somewhere between Costa Rica and Slovenia.

HEALTH CARE -- DIVIDE AND CONQUER

Too many of us want the health care system fixed. Your telephone calls to your congress persons is having an effect!

So the new strategy, from the people who do NOT care if over 45 million persons in the US do NOT have health insurance, is to divide and conquer. If they can make the health care advocates argue about what is the best way to get universal health care, they can win.

WE ARE THE ONLY HIGH INCOME INDUSTRIALIZED COUNTRY IN THE WORLD WHICH DOES NOT HAVE some version of national universal public health insurance. Germany, Britain, Greece, Canada, Taiwan, Switzerland, Australia, New Zealand, all have universal health care. Their citizens are in better health, live longer, and have a lower infant mortality than our citizens. See single payer health care in Wikipedia for a good explanation of it all.

IT IS TIME THAT THIS GETS DONE. I am tired of watching people die because they did not have health insurance.

THE PAMELA SMITH CENTER FOR LAW AND SCIENCE

I would like to start a ‘think tank’ where we try to solve four problems.

The increasing lack of due process in US courts.

The increasing use of ‘junk science’ to make major policy decisions.

The increasing violence which probably stems from the War on Drugs.

The increasing number of ‘mystery chips’ which are being put into our communications,transportation and other critical computer systems.

DUE PROCESS is the legal term for a fair process. Generally, it means that people are notified regarding going to court and what the court is going to decide. It means that you can call witnesses for yourself and cross examine witnesses against you. Both sides have to exchange information so that no one is surprised when they get to court. Both sides are listened to carefully and fairly by the judge and/or jury. Due process tries to insure that decisions are made based upon facts and law, not on whether you correctly followed a complex web of civil or criminal procedure.

JUNK SCIENCE is the term I use for science which decides the result it wants and then sets up the study so that such a result is a foregone conclusion. The best example I know for this is the government study on the effects of marijuana for relief of nausea in AIDS patients. The government required that the study use the marijuana grown by the government. There were two problems with this requirement. The marijuana provided by the government was of extremely poor quality. The government stored the marijuana cigarettes in the freezer, and many had turned to mush before they ever got smoked.

VIOLENCE BECAUSE OF THE WAR ON DRUGS. We cannot stop the import and sale of illegal drugs even if we build a “Berlin Wall” completely circling our country. People escaped over the Berlin Wall and drugs are way easier to smuggle than people. If we cannot stop the drugs from coming in, making them illegal just makes them expensive. When you make it illegal to possess a substance that people insist on using anyway, you make that substance cost more. The difference in the cost of manufacturing and/or growing the drug and the amount the drug is worth on the street can be enormous. As the war on drugs escalates, drug dealers invest some of their huge profits in weapons, which they use on law officers, rival dealers, and innocents.

Legalizing drugs means that you can tax the sale of the drugs. Legalizing drugs means that attorneys can bring lawsuits for the damage that the drugs do to people. Legalizing drugs means that you can insure that the drugs are grown without pesticides and do not have any harmful added ingredients. Legalizing drugs means we can concentrate law enforcement efforts on keeping drugs out of the hands of children.

MYSTERY CHIPS are really frightening. The chips we are manufacturing, mostly overseas, are increasingly complex. Because chip makers are afraid of theft via reverse engineering, there is currently NO WAY to verify that a particular chip does what it is supposed to do. Worse, we cannot tell if a particular chip does MORE than it is supposed to do. I believe that we can solve this problem using chip designers and statisticians. Statistics are necessary as some of these chips have more than a million tiny internal electrical switches. (Think of them as hard wired

computer programs.)

We are all concerned about viruses and worms attached to emails and downloads. These virus and worms can destroy the information we store on our computers. My nightmare is that there are viruses and worms hidden in the mystery chips, and that these viruses and worms could be activated, perhaps by a government who wishes to be subtle. These mystery chips are being used in our computers, our airplanes, our trains, our phones, in everything electronic.

I AM ASKING you all to make a small donation to the Pamela Smith Center for Law and Science. I promise to use the money to address these issues. Because I will be required to try to change some laws and regulations, your donation will NOT be tax deductible.

TO DONATE go to www.PamelaSmithCenterForLawAndScience.com

THE POLITICS OF FEAR

Conservatives are again using fear to get you all to make stupid decisions.

Remember the weapons of mass destruction that never appeared in Iraq? The only way to get the American people to go to war in Iraq was to scare them with weapons of mass destruction. As we all now know, there were no weapons of mass destruction.

Now, they are scaring you about government health care.

I will expose the lies as I come across them.

1. They say, "Everything the government does turns out wrong." Without the government, we would not have a Golden Gate Bridge, or an interstate highway system, or medicare, or electricity on our farms, or a military force.

2. They say, "The health care proposal calls for euthanasia." Actually, it calls for each person to make the decision about what kind of end of life health care that each person wants to have. For an example, go to www.LawandLaws.com, click on forms, then click on the Health Care form. This is an example of the kind of form required in the proposed law.

3. They say, "Government health care funds get spent on administration, not health care." Medicare spends about 2% on administration, private insurance spends about 20% on administration (counting advertising dollars as administration).

4. They say, "Government health insurance does not work in other countries." Of course, they only quote the complaints as the system gets started. They never count the kudos after the system is up and running.

My concern is that the private insurance companies get to set the RATES THEY CHARGE and CHOOSE THE PEOPLE that they insure. If you do not currently have a good job, it is unlikely that you have affordable health insurance. The cost of private health insurance is so high that it brought down the auto companies. If you are older, you cannot get a job because health insurance costs go up sharply as you get older.

HEALTH CARE RESEARCH

We should decide the important issue of health insurance by looking at the facts, not by listening to speeches.

ANY of us could lose our health insurance AT ANY TIME, as long as the decision for WHO TO INSURE is in the hands of the insurance companies.

Governments in the US MUST give you a HEARING and an APPEAL, before they make a final decision regarding approval or denial of governmental health insurance.

If you do not have health insurance, you may not have access to ANY doctor, let alone the BEST doctor.

We do not have to rely on politicians to tell us about the effects of various health care plans.

If you are a retired and/or unemployed corporate lawyer, human resource person, or union person who dealt with the health care for your employees and/or your members, you are used to reading the language of health insurance. You are probably an expert on telling us, in English, what the effects of a certain regulation will be or is likely to be. Since you have the time, you could help us all with the decision of what health care plan, if any, Congress should pass.

So tell us. Blogging is really easy.

Or perhaps use Wikipedia.

Be certain to include your name and credentials so that we can know that the information may be reliable.

You can get the proposed legislation from various different government websites. Start with the website run by the US Congress, which is one of the older government websites.

This issue is important, so if you can help us understand the proposed plans, please do so.