Robert L. Bastian Jr. - Writings



 
Rob Bastian you are my hero!!!!!!!!!  Published again!  What a wonderful op-ed in the LA Times.   I've said it before, I'll say it again, you are possibly the greatest lawyer of all time. 

I wish you did criminal cases but we are fortunate to know you and have you on  our side as a civil  lawyer

And Eddie  Dillard WAS in fact tortured and the guards got away  with it.   And I can sit here and name case after case of torture, including that of my own  son, and the guards and wardens all got away with it.

Robert Bastian, your pen, your courage, your love of liberty serves us all well and there  is no way that we can ever repay for your many years of hard work and financial sacrifice in taking on these bully guards my friend.   I am very proud of you to say the least.

We could all start with writing in to  letters@latimes.com  and mentioning this article as we describe torture in California's prisons in honor of our hero Robert Bastian's donated writing masterpiece.

I hated all lawyers until I met and fought alongside Robert Bastian.  He is as deeply incensed as any of us over the ongoing torture of California inmates which goes unpunished and often, unreported.

B. Cayenne Bird


The following appeared in the Los Angeles Daily Journal on Friday, January 14, 2005.

THERE ARE FEDERAL JUDGES WHO WON'T COMPROMISE INMATE'S RIGHTS

By: Robert L. Bastian Jr.

    There are so many instances of federal courts disregarding meritorious prisoner rights claims, especially those brought by inmates in pro per, that when judges do their job, it is worth taking 
note.  This month, a Ninth Circuit panel handed down two decisions in favor of inmates who litigated on their own behalf.  In both cases, the panel decided correctly.

    In 1995, Congress, in picking off an easy political target, ensured that there would be an inadequate pool of attorneys to handle a representative sample of prisoner rights issues.  Responding to the "explosion" of prisoner rights litigation, fueled on the margins of the debate by anecdotes of lawsuits by inmates on "easy street" suing because their "cookies were served too cold," Congress passed the Prison Litigation Reform Act, imposing numerous burdens on inmate litigants and severely limiting inmate's rights to recover attorney fees, even when they won their cases.

    In reality, the "explosion" of prisoner abuse suits was the result of a commensurate explosion in prisoner abuse.  At the time, America was still in the midst of a prison building boom and a rise in incarceration to meet the prevailing tough on crime winds and the strict, determinate sentencing that consequently breezed into law.  California's Department of Corrections grew into the dysfunctional 32 prison, $6 billion behemoth that it is today.

    During the past two decades, new facilities have risen in the most isolated parts of the state.  They have typically been run as "independent fiefdoms" by wardens removed from meaningful central administrative oversight.  Legislative oversight was hampered by term limits which insured that concerned committee members' reform efforts lost continuity and momentum. 

    Meanwhile, the prison guard's union became so powerful and influential in the governor's office that it actually became an issue which contributed to the extraordinary recall election that brought the current governor to power. 

    During this period, the Department of Corrections unilaterally imposed restrictions on reporters' access to prisons.  The newest and most isolated institutions, such as Corcoran, became incubators for the worst forms of prisoner abuse, including staged fights, gratuitous force and the use of inmate rape as a source of control. 

    The outside world only became aware of such abuse when the prison's own employees began to roll over on one another.  Similar to Abu Ghraib today, in the absence of photographs or guards rolling over, the uncorroborated testimony of victims is simply ignored.

    The cumulative result has surfaced in the last year, with one district court became so frustrated with the Department of Correction's inability to police its own and adequately address misconduct that he threatened to take control of the institution.  Partly in response, a public inquiry commission headed by former Governor Deukmejian acknowledged the system-wide breakdown, pointing to 237 specific areas where the institution needed reform. 

    Still, the most significant of the proposed reforms were rejected by the governor before the ink dried because they would have reduced his official powers.

    Often, then, the only viable outlet remaining for addressing the continued problems with the Department of Corrections are federal lawsuits brought by inmates, typically without the benefit of counsel.

    In the black letter of the law, persons bringing lawsuits on their own behalf are entitled not only to the same respect accorded other litigants, but courts are supposed to grant them a little extra slack regarding the technical requirements of law.  This is to ensure that their claims are decided on substantive merits, not by procedural default.

    The reality, though, as any attorney who routinely makes court appearances can attest, is that such litigants often receive shabby treatment.  The hidden presumption - often true if, nonetheless, unfair - is that such litigants lack counsel either because their cases have no merit or they have personality issues that repel attorneys who might otherwise have assumed representation.

    Prisoners have the added burden of other prejudices.  Most obviously, they are subject to resentment for invoking law on their own behalf after having placed  themselves on the wrong side of the law.  More subtly, many young District Court law clerks advancing between prestigious law schools and lucrative partnerships resent the work such inmates cause, work that is irrelevant to their own career paths.

    There is, however, a better tradition in federal courts, exemplified by the dignified the performance of Henry Fonda in Gideon's Trumpet, the 1979 movie based upon Anthony Lewis' 1964 book of the same title.  Lewis recounts the story of a down and out prisoner who successfully petitioned the Supreme Court to establish his, and all similarly situated persons' right to counsel in criminal matters.

    The Ninth Circuit was working in this better tradition when it recently handed down a pair of decisions in Jones v. Blanas No. 2004 DJDAR 15266 (9th Cir. Dec. 27, 2004) and Watts v. McKinney  2005 DJDAR 251 (9th Cir. Jan. 10, 2005).

    The plaintiff in Jones alleged that was he subjected to punitive treatment while still in custody after he completed his criminal sentence, but faced civil commitment proceedings under California's Sexually Violent Predator Act.  The act is a statutory scheme that permits the continued civil detention of a person convicted of certain enumerated violent sex offenses against at least two victims and who has a diagnosed mental disorder that makes the person a 
dangerous likely recidivist. 

    Although the scheme has survived ex post facto clause and double jeopardy challenges, one of the features of the scheme is that persons confined under the Sexually Violent Predator Act must be "confined separately and distinctly" from individuals awaiting criminal trials and from individuals held under criminal sentence. 

    In 2001, the California legislature added the requirement that "[i]nmates who are held pending civil process under the sexually violent predator laws shall be held in administrative segregation."  The Act defines administrative segregation as "separate and secure housing that does not involve any deprivation of privileges other than what is necessary to protect the inmates and staff."

    In apparent disregard of this statute, Jones was housed in administrative segregation in the Sacramento jail and subjected to more restrictive conditions than the rest of the jail population, 
including, inter alia, loss of recreational, law library and phone privileges, and subjected to intimidating tactics, including be poked with weapons and subjected to humiliating strip searches.

    In reversing summary judgment, the Ninth Circuit held that the due process clause of the 14th Amendment provided greater protection for someone detained civilly than the lower Eighth Amendment standard which the district court had essentially applied.  Instead, substantive due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.  This is more than the "minimal civilized 
measure of life's necessities" afforded convicts under the Eighth Amendment. 

    Justice Betty B. Fletcher memorably summarized the gist of the panel's main holding: "purgatory cannot be worse than hell."  Consistent with that sentiment, the panel additionally ordered the district court on remand to appoint counsel for Jones.

    In essence, the court upheld legal principle in favor of an unrepresented and unpopular litigant.

   In Watts, the plaintiff asserted that correctional officers at Pelican Bay, in an effort to obtain information from him regarding the flow of contraband into the prison, "escorted plaintiff to a 
holding cell, and without warning slammed plaintiff['s] face into the wall causing a nose bleed, and swollen eye, and kicked plaintiff in his penis and several times in his cuffs on and with his hands behind his back." 

    During these events, plaintiff asserted that he had not resisted or violated any prison rules.  On this evidentiary showing, the district court denied summary judgment on his Eighth Amendment claim against his abuser and the reviewing court affirmed.

    The correctional officer, represented by the attorney general of California, argued that "a reasonable officer in defendant McKinney's position would not necessarily have believed" that his conduct violated the Eighth Amendment and, therefore, he should be entitled to qualified immunity from the lawsuit.

    Responding to this argument, Judge John T. Noonan, wrote for the panel, "[t]o suppose that any reasonable person, let alone a trained prison officer, would not know that kicking a helpless prisoner's genitals was cruel and unusual conduct is beyond belief.  "The Supreme Court did not need to create a catalogue of all the acts by which cruel and sadistic purpose to harm another would be manifest; but if it had, such an act would be near the top of the list."

    Still, in the present environment following Abu Ghraib and in light of the creative uses the current administration advocated for the qualified immunity doctrine, it is, perhaps, a good idea for courts to catalogue specific acts of torture authorities might otherwise use to gather information. 

    In an open letter to the U.S. attorney general nominee, Prof. Marjorie Cohn recently compiled a list of occurrences while in American custodial situations that have been credibly reported in the past three to four years. 

    Thus, courts might also specifically place on their list: sodomy with a broomstick, chemical light, metal object; severe beatings; water boarding (simulated drowning); electric shocks; attaching electrodes to private parts; forced masturbation.

    Additionally, the list might include pulling out fingernails, pushing lit cigarettes into ears, chaining hand and foot in fetal position without food or water; forced standing on one leg in the 
sun; feigned suffocation; gagging with duct tape, tormenting with loud music and strobe lights; sleep deprivation; hooding; subjecting to freezing/sweltering temperatures; `dietary manipulation'; repeated, prolonged rectal exams; hanging by arms from hooks.

    Not to mention permitting serious dog bites; bending back fingers; intense isolation for more than 3 months; grabbing genitals; severe burning; stacking of naked prisoners in pyramids, injecting with drugs; leaving bullet in body of wounded prisoner; taping naked prisoner to board; shooting into containers with men inside; keeping prisoners in small, outdoor cages; pepper spraying in face, forcing heads into toilets and flushing; threatening live burial, drowning, 
electrocution, rape and death; beating prisoners to death; killing wounded prisoners; throwing off bridge into river and drowning; rape and murder."

    Just reading the newspaper should be enough to make one appreciate federal judges who conscientiously review inmate complaints and refuse to compromise clear legal principles.

Robert L. Bastian Jr. is a partner in the Law Firm of Bastian & Dini, Los Angeles




 

May 6, 2004 

COMMENTARY
Exporting America's Shame
Allegations in Iraq reflect the violent, abusive prisons that have arisen in the U.S.
 

By Robert L. Bastian Jr., Robert L. Bastian Jr. is a Los Angeles lawyer.

President Bush has asserted that the abuse of Iraqi prisoners at Abu Ghraib "does not reflect the nature of the American people." 

"That's not the way we do things in America," he added. 

In terms of aspirations, Bush is certainly correct: Americans generally do not regard themselves as arrogant, abusive, violent, mean, petty and ignoble. As a matter of empirical, verifiable fact, however, the best social scientific evidence suggests that the president is simply wrong on both counts. 

In 1971, for example, Stanford psychology professor Philip G. Zimbardo initiated an experiment in which participating Stanford students were designated either as prisoners or guards, with guards told to maintain order. After only a few days, the project had to be terminated prematurely because the guards were, with no apparent motivation other than fulfilling their roles, becoming uncomfortably abusive toward the prisoners. What does that say about our "nature"? 

In another famous experiment, Yale psychology professor Stanley Milgram told subjects to give electric shocks to a victim in a learning experiment. As the victim — an actor in another room who was not actually being shocked — gave incorrect answers, the participants were asked to turn the voltage up, even to where the dial read "danger," a point at which the victim could be heard screaming. Although often reluctant, two-thirds of the subjects continued to follow orders to administer shocks. 

Given that, what's so surprising about the fact that in 2004, reservists controlling the relevant tier in Abu Ghraib prison would — in an effort to follow orders — agree to "soften" the Iraqi detainees for questioning? 

If the president was wrong about the nature of the American people, he was no less wrong about the way things are done by Americans. 

At the outset of the occupation, it was earnestly argued that the Iraqi people would welcome and benefit from imposition of U.S.-style democracy and freedoms. The American public — and, I suspect, most of the world — believed that Americans could do a better job of running a prison such as Abu Ghraib. We're not arbitrary, abusive, unaccountable or unjust, right? Indeed, last June, Brig. Gen. Janis Karpinski told a reporter that Americans were making living conditions so much better at Abu Ghraib that she was concerned prisoners "wouldn't want to leave." 

But again, we are deluding ourselves. The hard fact is that the U.S. did install in Iraq an American-style approach to prison management. Like the U.S. prison system, it is underfunded and inadequately supervised, lacks civilian oversight and accountability and is secretive and tolerant of inmate abuse until evidence of mistreatment is pushed into the public light. That, regrettably, is the American model.

Over the last four decades, political leaders here at home have committed themselves to incarcerating inmates at rates that ultimately rivaled the former Soviet Union and repressive Middle Eastern regimes. Prisons have grown overcrowded and understaffed. 

At the same time, there has been no commensurate commitment to protecting prisoner rights or upholding even minimal standards. Both state and federal legislatures, with the complicity of federal courts, have continually trimmed avenues of legal redress for inmates subject to abuse.

For its part, the public was fed the myth that prisoners were coddled, and accepted on faith that inmates were treated fairly. The public faith was interrupted only when graphic images materialized as evidence or by guards "rolling over." 

Regarding Abu Ghraib, testimonial evidence of abuse was reported by no fewer than half a dozen organizations, including Human Rights Watch and Amnesty International. Until photos were shown on "60 Minutes II," though, they were merely allegations and, therefore, not the subject of public concern and remedial action.

So, what has been shown in Abu Ghraib that has not already been seen in the U.S.? Recently, images of cages in which California Youth Authority wards were locked up for as much as 23 hours a day were broadcast. In 2001, Human Rights Watch reported in detail how extensively rape is tolerated in U.S. prisons. 

The Eddie Dillard case, in which I represented the inmate, revealed a paper trail with respect to one prolific cell rapist responsible for more than 30 reported incidents of attempted or completed sexual assaults at six different California prisons. Still, the predator was assigned more cellmates. 

The accumulated result: A federal district court judge in Northern California has threatened to take over the California Department of Corrections because it can't break the code of silence among its guards and take responsibility for the integrity of its mission. 

In the last decade, the department has restricted visits by family and journalists to the remote locations where prisons have been scattered, on the ground that the press might glamorize prison life. Or has it acted to impede reporting of underfunding and abuse? 

In the shadow of the infamous Abu Ghraib photographs, it's easy to understand why much of the world looks upon Americans as craven and arrogant. In so many ways, the United States' interests and international image have been harmed as we act on our aspirations and self-congratulatory beliefs instead of a cold, hard view of reality, including our own limitations.

No less a figure than Winston Churchill famously said that "treatment of crime and criminals is one of the most unfailing tests of civilization of any country." If Churchill is right, so, at the moment, are America's critics.



This appeared in the Los Angeles Daily Journal, Tuesday, June 1, 2004, p. 6

COURTS SHOW DELIBERATE INDIFFERENCE TO JAILHOUSE VIOLENCE

By Robert L. Bastian, Jr.

On Dec. 20, 1997, Daniel Segovia, whom our office represented, was dragged – after all the cell doors on his row in a Men's Central Jail gang module inexplicably opened simultaneously – into a cell with six other inmates, mauled and stabbed 52 times.

The jail's policy was to leave all the gang module doors locked and closed.  No one can (or will) say why Segovia was called out of his cell for a visitor who never existed or why, after he was on the row, all cell doors suddenly opened in violation of this policy.  This is because the jail could not establish who was on duty at the time.  Of the entire pool of deputies who might have been at the door-switch post, none recalled an inmate being stabbed 52 times after someone threw that switch.

Neither the sheriff's investigation of the incident nor the supervisor signing off on the report ever asked, "Who was on duty? Who opened the doors? Why? And why wasn't the policy breach reported?"  The sheriff's investigator interviewed each of the six inmates in close proximity to one another where they were able to monitor each other's cooperation.  No one was prosecuted.  Each of the six got off with 10 days' loss of privileges.

That was in 1997.  In recent days, the Los Angeles County Sheriff's Department has conceded that no less than five jail inmates have been killed or beaten during the past 18 months in retaliation of testifying against other inmates.

That the Sheriff's Department cannot even protect such witnesses should be a strong hint of just how entirely out of control inmate-on-inmate violence within the jail has spun.

This obviously is a failure by the sheriff, who is charged with managing the jail and supervising its staff.  Also sharing responsibility are the Board of Supervisors, which oversees the jail budget; the courts, particularly the federal courts, who typically hear prisoner complaints; and to a lesser extent, the special counsel designated to monitor the Sheriff's Department.

When conditions become so bad in jail that someone is murdered, then the media might report it.  Finally, the public, which elects the sheriff, might take brief note.

But the public and its representatives generally don't care.  Over the past four decades, the public has accepted the myth that undeserving prisoners are coddled.  Thus, no sheriff gets elected on a platform of improving conditions of confinement.  The "silent majority" still feels victimized by crime and viscerally reacts against any suggestion that there is a public duty to maintain minimum standards with respect to inmates.  This is particularly true in times of fiscal trouble that, with respect to jail funding, is 100 percent of the time.

The one institution structured to protect the baseline constitutional rights of a minority such as inmates is the federal court.  Generally, though, federal judges don't care either.

At a minimum, the Eighth Amendment to the U.S. Constitution, which generally prohibits cruel and inhuman punishment, imposes a duty on jail officials to take reasonable measures to guarantee the safety of inmates from violence by other inmates.  Over the last four decades, however, federal courts have shirked their responsibility to ensure minimum standards.  Instead they have created and enforced improbable if not impossible legal standards as preconditions to granting inmates any meaningful relief from the intolerable conditions they face.

A victim of assault by another inmate must prove, no matter how preventable the assault was, that a government official was "deliberately indifferent" – a standard somewhere between negligence and an outright intent to cause harm.

"Deliberate indifference" is also a "judicial gloss."  More specifically, it is a creation of a Supreme Court generally hostile to individual civil rights, and which selected this standard over negligence in its selective interpretations of the Constitution and 19th century civil rights statutes.

Additionally, "deliberate indifference" is a blatant oxymoron.  Justices, who otherwise favor "bright-line" rules when they inure to the advantage of law-enforcement defendants, were attracted to the obtuse and intellectually indefensible "deliberate indifference" standard for two reasons.

First, the court's more conservative justices apparently do not believe in aggressive enforcement of the constitutional rights of individuals against majority interest.  Instead, they believe individual rights should be enforced only if they arise from the states and have strong majoritarian supports.

And there is latent animosity against prisoners who assert their rights.  Although a principled analytic approach would sharply distinguish between the formal punishment inmates receive after due process, in contrast to the treatment they receive while in prison, the distinction breaks down in practice.

Courts, reflecting public attitudes, resent arrestees and inmates, holding them morally responsible for the conditions of their confinement on the grounds that it was their fault they were arrested and incarcerated in the first place.

When a judge or a juror expresses the sentiment that "the problem today is there is too little acceptance of personal responsibility," you can throw away both the jury instructions and the evidence because the plaintiff prisoner is going to lose.

Thus, little support exists for "rewarding" such plaintiffs with effective relief.  The flip side of public scorn for what once was perceived as a permissible attitude toward criminals is a permissive attitude toward official misconduct.

These underlying attitudes are reflected in a palpable divide regarding how the "deliberate indifference" standard is interpreted.  Conservative judges with a bias against inmates are more apt to interpret this as requiring "deliberate" official misconduct, while the less numerous civil libertarians are more likely to emphasize an official's indifference.

The result is that "deliberate indifference" better describes the federal courts' overall attitude toward problems in American prisons and jails.  A pertinent example of an inmate not being able to meet the standard of "deliberate indifference" – and the resulting deliberate indifference – is our client Daniel Segovia.

During litigation, Segovia asked for jail statistics on inmate-on-inmate violence.  He twice was told none existed, but after a persistent effort, he finally was given statistics for 1995 (761 incidents), 1996 (766) and 1997 (896).  These numbers, probably understated, demonstrated not only a high level of violence but a rising trend.  In the month Segovia was stabbed, there were, on average two incidents of inmate-on-inmate violence reported per day.

In his lawsuit, Segovia asked the federal court how the county could possibly have been more indifferent without being deliberate.

But the District Court summarily dismissed his lawsuit on grounds the deliberate indifference standard had not been met.  A 9th U.S. Circuit Court of Appeals panel, foregoing oral argument, upheld the dismissal in an unpublished opinion.  The 9th Circuit declined the plaintiff's request to review the matter en banc.  No changes in policy, training, reporting, supervision or discipline where ever instituted as a result of his stabbing.

It should come as no surprise that where jails and prisons are continually underbudgeted, federal standards of liability set the base level of jail conditions.  If the federal courts had set the standard at reasonableness – the standard by which private individuals and corporations typically must regulate their behavior -- then jails and prisons would no doubt be funded to the point where they provide reasonable conditions of confinement.

But deliberate indifference is the standard the court sowed.  In return, deliberate indifference is what the criminal justice system reaped.  What the Board of Supervisors saw when they recently toured Los Angeles county jails is what my law partner Marina R. Dini and I saw when we visited the jail five years ago during the Segovia case: The jail is so thoroughly overcrowded, unsanitary and violent that the county could not possibly be more indifferent to the rights of inmates without deliberately willing their violation.

In November 1999, I wrote to the Sheriff's Department's special monitor about the Segovia case, complaining that inmate-on-inmate violence was so poorly investigated and reported no one had any way of knowing how many preventable assaults were occurring within the jail.  But the special monitor never responded.

Had someone in a position of responsibility paid close attention to Segovia's case, they might have insisted that, when instances of inmate-on-inmate violence occurred, at a minimum jail staff should report whether the jail's door polices were followed, and, if not, whether appropriate remedial discipline, retraining or rule revision were implemented.

In these days of "compassionate conservatism," one might ask the philosophical riddle: If an inmate in county jail screams, does he make a sound?

Sadly, the answer is no.

Otherwise, the effort to sort out jail violence would have begun in earnest thousands of inmate-on-inmate assaults ago.

Robert L. Bastian Jr. is a partner in the Law Offices of Bastian & Dini in Los Angeles 


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April 26, 2004 

OFFICERS MUST BE ACCOUNTABLE FOR INNOCENT VICTIMS OF PURSUITS 
Forum Column 
By Robert L. Bastian Jr.

The state Legislature should enact SB1866, the bill to repeal police immunity for injury-causing police chases where the public is not otherwise in "imminent peril." The legislation promotes public safety, fairness and governmental accountability. Its only flaw is that it does not go far enough, making injury to innocent bystanders a matter of strict liability. 
The bill's text recites data from the National Highway Traffic Safety Administration that, in 2001, 365 fatalities resulted nationwide from police pursuits. California had the highest number of fatalities, 51, of which 24 were innocent bystanders -- one innocent fatality nearly every two weeks. Scholars familiar with the reporting system from which these numbers are derived, Fatality Analysis Reporting System, believe they are, for various reasons, understated.

The research of a nationally recognized expert in police pursuits, professor Geoffrey Alpert, indicates that 40 percent of pursuits end in crashes, 20 percent in personal injury and 1 percent in death. Alpert observed that, since 1985, these percentages are consistent from study to study, jurisdiction to jurisdiction, regardless of pursuit policy.

But the death that grabbed the attention of the bill's sponsor, Sen. Sam Aanestad, described as a law-and-order Republican from a rural district, was that of his 15-year-old constituent, Kristie Priano, a promising, popular and loved honor student, class officer, community volunteer and athlete.

The Chico police were engaged in a high-speed chase of another teenager who took her mother's car without permission. Even though they knew where the joy-riding girl lived, police pursued the car at high speeds through numerous intersections until the fleeing car struck the van that Kristie was riding in, killing her.

The law requires police departments to have promulgated written procedures for police chases to immunize the officers. Remarkably, the law does not require officers to follow those procedures. Nor does it set standards for the quality of the procedures.

Regarding the chase resulting in Kristie's death, Chico Police Chief Bruce Hagerty stated that the officers followed policy.

"As pursuits go," Hagerty said, "this is as controlled as you can get."

That is precisely the problem.

Police chases are, according to Los Angeles Sheriff Lee Baca in a letter to Aanestad opposing the bill, "extremely complex, dynamic and unpredictable events."

But, as such, they are extremely simple and predictable in their result: the more police chases, the more unintended consequences, carnage and tragedy. All the more reason to subject them to outside supervision.

Police opposition focuses on the legislation's potential cost in terms of municipal liability. The issue, however, is not so much what the cost is as who shall bear it?

The law is that the innocent victim injured, maimed or killed at random must bear the entire cost of such policies. The logic of the law is that police pursuits are not so important that the public should underwrite their foreseeable costs but important enough to impose a negative lottery ticket on the Kristie Prianos who are mowed down at random.

The ethicist John Rawls famously tested the fairness of public policy by conducting a thought experiment, positing a veil of ignorance: If everyone was afforded a pre-understanding of the distribution of a policy but was unaware on whom the distribution fell, would he or she consent to the policy beforehand? If we know in advance that police pursuits to benefit the polity are going to mow down innocent victims, would we distribute the cost of that benefit across the polity or concentrate it only on the victims?

People would be unlikely to disagree about whether a child should be sacrificed for the overzealous enforcement of law that, with but a little police patience, could have been enforced, anyway. Holding such negative lottery tickets is not part of the social contract.

Supporters of police pursuits complain that the question, as phrased, misdirects blame away from the person who started the pursuit. Instead, critics suggest the better approach is increased criminal penalties for fleeing.

But it takes two to form a pursuit. The issue is not inviting a pursuit. It is accepting the invitation. Added criminal penalties are unlikely to deter where a fleeing suspect's judgment, presumptively lacking, is impaired by alcohol, drugs, mental illness or, in the case of the driver who slammed into the van carrying Kristie, teenage immaturity.

If people assume that police pursuits serve a public benefit, then the public should pay the cost. Still, Baca warns against a potentially "enormous liability" for law enforcement from the bill. Impliedly, then, the more "enormous" the liability, the more enormous the cost now unfairly imposed at random.

Finally, some police officers express resentment, even a sense of betrayal, at the thought of having their streetwise judgments questioned "with the benefit of 20/20 hindsight" in the sanctity and calm of court.

In court, however, the defendant police officer's job is not at stake, nor does he face discipline as he might under the present system of internal police department review to determine whether he followed the department's promulgated policy. At stake in court is, Who shall pay the otherwise private cost of a public benefit?

The real second-guessing comes from the responsible department heads or municipal entities in determining whether such chases are, after accounting for all of their costs, an effective use of budgetary resources. That is, those managing public resources must, when confronted with the entire costs of their policies, continually review whether the benefits outweigh the costs and justify those decisions to the polity.

Those are the real decisions which, under the new law, will be subject to second-guessing. In short, SB1866, by more closely matching the costs of such policies to the perceived benefits, results in a public policy not only of greater fairness but also of greater accountability.

Under the current law, all the parents of Kristie Priano can do is maintain a Web site dedicated to their daughter and continue to lobby their elected representatives in Sacramento. In the process, though, they have turned their tragedy into a proposal that promotes safety, fairness and public accountability.

       Robert L. Bastian Jr. is a partner in Bastian & Dini in Los Angeles.



This piece appeared in the Los Angeles Daily Journal, Tuesday June 22, 2004. 

  Rob Bastian  is a civil lawyer in Los Angeles who stands up and fights for us and with us, a very dedicated humanitarian lawyer.  The Daily Journal goes to judges and other lawyers and we are grateful to have his mighty pen in there addressing directly the people who make these decisions.

We have his writings at our website  and can't thank him enough for all that he's done for inmates, especially the Dillard Trial that we backed up last year at Corcoran while all these email groups sat on the sidelines and didn't  help.  You never see these email groups who bash us bringing forward lawsuits and they don't have the great lawyers either.

Let support Rob by writing to the Daily Journal editor on this one.  when many letters arrive, they want him to publish again.  The power of numbers making noise works well everywhere.  Write about THIS article to:

 Katrina_Dewey@dailyjournal.com
 
 

BUSH SHOULDN'T STEER COUNTRY WITH LEADERSHIP BASED ON FAITH

By Robert L. Bastian Jr. 

Some view recent ACLU success in persuading Los Angeles and San Bernardino counties to remove crosses from their respective seals, or in persuading a 9th U.S. Circuit Court of Appeals panel to uphold removal of a cross from federal land, as relatively trivial distractions from more pressing issues.

Likewise, the Supreme Court's recent refusal to hear a challenge to inclusion of "under God" in the Pledge to Allegiance, on the dubious and evasive technical grounds that the noncustodial father who objected on behalf of his child lacked standing, has a "Why now?" quality in its reasoning and tone.

On the surface, imposition of tiny crosses on a government seal or the words "under God" in the pledge seem to many only tiny encroachments on individual liberty. Tolerance, after all, is the ultimate object of the Establishment Clause. Making a stand on such straws seems, in its own way, vaguely intolerant.

Still, the importance of a well-maintained wall between church and state is arguably more important now than ever. 

Such Establishment Clause cases often narrowly focus attention on whether the person bound to such compulsory activities such as pledging or viewing symbols suffers distressing feelings of exclusion or unwelcome indoctrination. Although the feelings symbols invoke are an important barometer of an impermissibly intolerant climate, more is at stake.

Recently, former President Bill Clinton pertinently observed while acknowledging a heritage of faith in America that we also have a tradition of relying in our public decision-making upon evidence. 
This is an important habit of governing reinforced by a well-maintained wall.

In the broadest philosophical sense, the founders declared independence from English monarchy and official religion by forming, instead, a constitutional democracy guided by nlightenment-inspired 
principles.

Benjamin Franklin, according to author Walter Isaacson in his recent biography of him, reviewed Thomas Jefferson's draft of the Declaration of Independence, crossed out "We hold these truths to be sacred and undeniable", and replaced it with, "We hold these truths to be self-evident."

After a common secular, self-evident belief that all men are created equal and endowed with certain inalienable rights to life, liberty and the pursuit of happiness, the operative social contract assumes 
that all other public policy decisions will be made and justified, not by appeal to creed, ideology or dogma, but by reason founded upon experience and empirical investigation.

Trials by jury were instituted to establish facts. Branches of government were posed against each other to temper passions. We persuade each other across denominations with appeals to evidence, 
not belief.

An essential aspect of tolerance and respect for others is that pluralistic public debate is conducted in terms that can be verified and tested in the world we share, not by divination of sectarian 
heavens and hells awaiting hereafter.

In recent public life, however, belief often has supplanted evidence, conviction overtaken experience, and ungrounded aspiration displaced fact-based decision making.

In an implicit criticism of the current president, Ronald Reagan Jr. noted that, although his own father believed God spared his life after the failed assassination attempt for a reason, he embraced that faith as a responsibility, not a mandate.

By contrast, George W. Bush has acted as if he received - after the Supreme Court terminated an end to an accurate empirical examination of Florida votes - a broad mandate to steer this country rightward with leadership based on faith.

Unsurprisingly, Bush's most consistent and motivated electoral support comes from religious traditionalists, regardless of denomination. Responding to that base, the Republican Party has 
become in so many ways the party of belief over evidence, religion over science, and high-sighted aspiration over clear-eyed prudence. The same conservatives seemingly so fixated on the smallest details of the Monica Lewinsky affair are eager to blunt further meaningful investigation into command failures at Abu Ghraib and other detention facilities, based on a belief that such abuse could only be the limited product of "a few bad apples."

In committing America to war in Iraq, the administration ignored, misinterpreted and, sometimes, manipulated evidence, leaving the sense that the decision was based upon a puffed-up belief in American invincibility and righteousness, poorly tempered by knowledge of the world - the Mideast in particular.

Call it neoconservative utopianism, American exceptionalism, or just plain ultranationalism. Or call it having an agenda, grudge or gambling mentality. They are all variations on a triumph of faith 
over fact.

Regrettably, the voting public is poorly positioned to check these trends until after they have happened. One of the gaps in democratic theory, Walter Lippman stressed in "Public Opinion," is that voters are typically dispossessed of the detailed facts necessary to flesh out such issues as they arise.

Particularly in time of crisis, the public is dependent upon the political elite to marshal evidence and make reasoned, defensible choices. In short, the public must take it on faith that our leaders 
are doing something more than taking it on faith themselves.

Although prayer is fine, we do not want to hear that the president's god told the commander-in-chief to go to war. Instead, we want to know that the president knowledgeably consulted with, among others, secretaries of State, Defense and Intelligence, the National Security 
Counsel, the U.N., Congress and our allies, and based his decision on a reasoned analysis of national interest, international support and the best obtainable evidence.

Similarly, there are few areas where the public takes more on faith than regarding what goes on in jails and prisons, at home or abroad. Enabling this dependence, the Administration suppressed release of Abu Ghraib photos even as it argued before the Supreme Court that facts regarding the confinement of inmates at Guantánamo should be shielded from court review.

Federal courts have done their part in interjecting a preference for belief over evidence when, for example, they imposed a judicially fashioned layer of bias in favor of government over its victims in 
the form of the good-faith immunity doctrine.

The corruption of this style of thought, recast as legal doctrine, has reached its apotheosis in the recently revealed memoranda prepared by Justice Department lawyers - advice solicited and 
prepared ostensibly to skirt America's heretofore legal and ethical commitment to international bans on torture.

The memo cynically instructs American interrogators and guards how to play the law if some of the other equally cynical arguments the administration raises - such as that the president's power to 
interrogate such prisoners is "a core function of the commander-in-chief's authority", beyond congressional control or judicial review, and that the 4th Geneva Convention against inhumane treatment does not apply, or that the technical definition of torture should be limited to extremes "such as organ failure, impairment of bodily function or, even, death" - all fail.

The memo instructs that the otherwise abusive guards still could claim good-faith immunity so long as their main intent was something other than inflicting pain.  Thus, self-serving justification and 
indeterminate subjective beliefs replace the evidentiary reality of torture.

Where the habit of governing is based upon God, commandments, prayer and "good faith" belief, instead of reason based upon evidence and experience, the predictable result is a divided polity, and an authoritarian government hostile to pluralistic views, disrespectful of dissent and unaccountable under law for uncomfortable facts.

In matters of government, trust is a poor substitute for accountability. The Founders' correct assumption is that successful government in a pluralistic nation, by its very nature, must be based 
upon reason, the only common denominator across denomination.

Taking those little crosses off government seals is a reassuring formal concession that, in American governance, belief still does not trump evidence.

Robert L. Bastian Jr. is a Los Angeles attorney with the Law Offices of Bastian and Dimi. 



Los Angeles Daily Journal, Monday, July 12, 2004.

Courts Treat State's Less Fortunate With Blind Indifference

By Robert L. Bastian Jr.

In the 42 years since the Supreme Court ruled in Robinson v. California 370 U.S. 660 (1962), that states could not, consistently with the Constitution, prosecute people solely because they were 
addicted to narcotics or alcohol, the collective conscience of  California with respect to how we treat the least fortunate of us has descended into a progressively deeper and impassive stupor. The 
recent plight of two such persons illustrates the point.

On June 17, 2004, a state appellate court in San Diego, in People v. Kellogg 2004 Cal. App. LEXIS 923, upheld the criminal conviction for public drunkenness of Thomas Kellogg, a homeless and chronic alcoholic, who, in effect, had no other place to be inebriated but in public. Among other aliments, Kellogg suffers from past head injury, dementia, severe cognitive impairment and a history of seizure disorder. He has a variety of other physical aliments, such as acute liver damage and ulcerative colitis which requires that he use a colostomy bag.

Moreover, he suffers from a schizoid personality disorder and symptoms of posttraumatic stress disorder. These problems further complicate possible treatment and housing options, making him 
incompatible with locked residential treatment programs which typically house four patients in a room, or crowded homeless shelters which are particularly stressful for someone with Kellogg's 
psychological profile.

Instead, Kellogg preferred the limited interaction with people he experienced when he hid and drank under a large bush on a highway embankment. Under this vegetation, inebriated, largely incoherent and rocking back and forth, but in no immediate danger to himself or a threat to others, he was arrested for public intoxication.

Although the trial court accepted evidence his homelessness was the result of a gravely disabled mental condition, not a matter of choice, the court nonetheless rejected the motion by Kellogg's 
attorney to dismiss the charge on grounds that criminal sanction as applied against him -- ostensively, because he was a homeless alcoholic -- was cruel and unusual punishment under the 8th and 14th Amendments.

Before Kellogg was rearrested for the same offense, Kellogg's attorney had negotiated a 180 day sentence, suspended for three years, conditioned upon Kellogg enrolling in a Veterans' 
Administration Hospital. But, after what are described by the appellate court as "extensive, but unsuccessful efforts" to place him, the VA rejected him because, it was suggested, he could not 
benefit from their programs due to his cognitive defects. This disappointment followed a long string of rejections by other programs who could not safely accept him into their respective addiction 
treatment programs due to Kellogg's other mental and physical health issues.

After he was rearrested, the court authorized Kellogg to serve his 180 sentence at a residential rehabilitation program, but none would take him. So he went to jail.  The appellate division of the superior court upheld the sentence.  Kellogg appealed to the Fourth Appellate District Court of Appeal.

The appellate panel's two judge majority, upholding the constitutionality of his sentence, reasoned that the state was punishing Kellogg's conduct, not his addition: "The state has a legitimate need to control public drunkenness when it creates a safety hazard. . . It would be neither safe nor humane to allow intoxicated persons to stumble into busy streets or to lie unchecked on sidewalks, driveways, parking lots, streets, and other such public areas where they could be trampled upon, tripped over, or run over by cars."

One such, presumptively "more humane" solution, then, for homeless alcoholics is city jail.  A bench in the waiting room of the Los Angeles County Jail is where Gustavo Ortega apparently spent the last three days of his life.

Ortega, an insulin-dependent diabetic, was arrested on March 1, 2004, for drinking in public. He pleaded no contest and was sentenced two days later to a month in jail. Despite, according to his family, a history of disorientation and memory problems that prevented him from working or, sometimes, even remembering his own phone number, the jail's legally mandated mental health screening classified him as someone who did not require mental-observation. What happened next 
calls the competence of that initial screening into question.

In jail, Ortega's diabetes caused his feet to swell, possibly because he forgot to take off his shoes to relieve pressure, putting him in danger (because of his diabetes) of failed circulation. Consequently, 
he was transferred to County-USC where part of his foot was amputated, then returned to County Jail to finish his sentence.

At 2:00 a.m. on April 2, he was released without anyone notifying the family. For two days, his relatives searched for him in the environs around the jail. Three days after he was released, Ortega was found delirious in the waiting room on a bench, having languished there the entire time without medicine or adequate food. 

Ortega survived the chronic and underreported inmate-on-inmate violence within the jail.  And he survived the particularly virulent strain of staff infection going around the jail because of its 
persistent overcrowding and unsanitary conditions.

But this time, doctors at County-USC could not save him from fatal complications from diabetes, chronic renal failure and hypertension.

A prison inmate, reflecting on his own bitter experience of being raped by another inmate after he unsuccessfully sought the protection of prison guards explained, "the opposite of compassion is not 
hatred, it is indifference."

The extrapolated lesson of Kellogg and Ortega is unsettling:  Considering the way our jails and health care are funded and administered, the bush underneath which Kellogg hid in a drunken 
stupor was probably safer, possibly more sanitary, and presumably more compassionate than the legally enforced alternative.

Robert L. Bastian Jr.
is a Los Angeles attorney
with Bastian & Dini



The following appears in today's (8-3-04)Los Angeles Daily Journal:

FEDERAL JUDGES MUST MAKE PRISONS MEET MINIMUM STANDARDS FOR INMATES

By Robert L. Bastian Jr.

Former Governor George Deukmejian's Corrections Independent Review Panel proposes 239 specific reforms to improve California's $6 billion corrections system, a system he concedes suffers from insufficient accountability, uniformity and transparency.  The mere prolixity of recommendations, however, suggests a failure to correctly analyze correction's problems, let alone propose realistic reform.

Essentially, the Panel identified 239 holes in a big bucket without once identifying how the bucket came to be so thoroughly shot through.

By now, California should be familiar with the limitations of public inquiry commission reports.  For example, the 1993 Christopher Commission was created to address the  loss of confidence related to the graphic beating after a police pursuit of a black motorist, Rodney King, by LAPD officers.

So what is the latest image to appear on Southland television screens?  It is the graphic beating after a police pursuit of a black motorist by LAPD officers.

Day to day, the public comfortably takes it on faith that law enforcement are the good people and that they follow the law.  The complementary assumption is that the police and corrections are able to police and manage themselves free from independent oversight.

Public inquiry commissions only become necessary to restore that quiescent bubble of public opinion after cognitively dissonant images or other scandal pointedly deflate public faith, something which -- with the advent of, among other technological innovations, video and digital cameras -- occurs with increasing regularity.

But recommendations made in ensuing reports have become so predictable and insipid that, perhaps, there should be an inquiry on public inquiry commissions.

In the future, instead of appointing yet more panels, the day's embattled department could simply download the usual recommendations and save public expense.

For example, how much effort really needs to be expended to advance vapid recommendations such as: provide better training, eliminate the code of silence, ensure wrongdoers are disciplined and prosecuted, or hire employees of higher moral caliber?  Isn't that much, by now, obvious?  Isn't it equally obvious that the problems run much deeper?

Dead on arrival is the key proposal put forward by Deukmejian's panel -- to reorganize corrections under a civilian corrections commission.  Acting Governor Schwarzenegger rejected that proposal on the day the report was released, because, he asserted, it would reduce his "accountability."  Read, instead, that it would reduce the Governor's control and, therefore, power to negotiate an
entente with the correctional officers' union, such as the amended contract negotiated this past month.

Not that permanent civilian commissions proposed by such panels typically live up to the promise of lasting reform: For example, this month the Los Angeles Police Commission was publicly rebuked by one of its own members for doing a poor job of responding to the latest videotaped LAPD beating.  Likewise,during the past five years, the appointed civilian monitor of the Los Angeles County Sheriff's Department per the Kolts Commission has been missing in action as violence, overcrowding and poor sanitation in the Department's jail have festered beyond control.

In any event, the guards' union likely would have qacquired influence over such a commission, even if it had been created.  The union already has proved adept during the past decade at buying influence through extravagant donations to legislators, television ad campaigns targeted towards jury pools in areas about to deliberate on the criminal misconduct of its member guards, and financing the opponents of district attorneys who vainly attempt to prosecute its members.  In this case, however, it appears the union already preempted the need to dominate the proposed commission by dominating, instead, the governor.

It can't reasonably be predicted that the Commission Report's recommendations will have no beneficial effect on the California corrections complex.  The Hawthorne effect is the increase in productivity researchers note regardless of what changes are instituted in the workplace.  What ever supervisors chose to do -- say, increase or decrease lighting or temperature, paint the walls green or blue, etc. -- matters little.  Workers really respond, instead, to the attention generated by people in white coats, carrying clipboards, paying attention to their problems and work habits, both encouraging enthusiasm and inspiring fear by their mere attentive presence.

When attention fades, however, so do the reforms.  The next crisis returns with the relative regularity of a business cycle.

The faulty assumption underlying Deukmejian's, as most panel's reports is that, if only the executive branch tried harder, the executive branch working on its own could solve these problems.

Our framers, by contrast, assumed otherwise -- that those wielding executive governmental power could not, over time, be so trusted.  They put theirlimited faith, instead, in structured competition among three jealous branches of government.

Indeed, that portion of the California legislature not enthralled to correctional officers union money has -- through its power to conduct hearings and its limited control of the corrections budget, albeit under the voter-imposed constraint of term limits and, now, a gubernatorially inspired threat to limit legislative sessions -- almost heroically, but, ultimately, ineffectually engaged in the Sisyphean task of reform.

But the one branch that, by design, is encouraged to enforce the otherwise unpopular baseline rights of prisoners to reasonably safe and healthful conditions of confinement, the courts -- particularly, the federal courts -- have retrenched from this obligation throughout the past forty years of "war on crime."

Regrettably, typically conservative judges, more attuned to majority interests and trends, have in this overly politicized area of law actively created and interpreted doctrines, and decided cases with an ideological eye towards rolling back prisoner's already limited rights and remedies.  At the beginning of this century, many, if not most federal courts are, in spirit, where they were at the beginning of the last, when the "hands off" doctrine was the rule.

Still, federal courts are – when they do their job -- better positioned to monitor prisons.  This is because the last persons to succumb to denial, indifference, boredom or hostility with the notion that prisoners are subjected to abuse are the abused prisoners themselves filing complaints in federal courts.

In fact, the primary reason Schwarzenegger appointed Deukmejian to review corrections is the pressure generated by a federal judge who became so offended with the excessive force and perjury of prison officials who had come before his court that he threatened to place Pelican Bay's operations under a federal receiver.

Similarly, in Atlanta, Georgia, this past month, the Fulton County Sheriff,frustrated by her own inability to manage the County's jail to the minimum standards mandated by federal aw, even acquiesced in a federal judge's suggestion that the court appoint a receiver.

Many on the federal courts are hostile to the notion that courts should do more in this area, particularly when Congress' funding has not kept pace with increases in filings.  Nor do the judge's law clerks, on their way from law review to high paying partnership-track jobs, particularly enjoy doing the work associated with prisoners' complaints of abuse.  Still, jails and prisons, particularly in California, have become so scandalously abusive and substandard that it is difficult to argue with the simple proposition that courts must take greater responsibility and, commensurately, assert greater authority.  Public inquiry commissions, no matter how earnest, simply do not get the job done.

Thus, there is a real, practical and relatively lasting solution to this reoccurring problem, founded upon a realistic assumption about human and institutional nature: The President must appoint a predominance of federal judges willing to enforce minimum legally mandated standards in prisons.

As for this editorial, I cannot emphasize enough how important it is for the cause of prison reform who nominates the federal judges.  Anyone who contends that there aren't meaningful differences between the Republican and Democratic contenders or that this next election is not that important is in for an earful.

Rob Bastian
 

Real reform begins in November.

Robert L. Bastian Jr. is  partner in the Law Offices of Bastian & Dini in Los Angeles.  The firm's practice emphasizes plaintiffs' civil rights.

Robert L. Bastian, Jr., 
Law Offices of Bastian & Dini 
1925 Century Park East, Suite 500 
Los Angeles, CA 90067-2700 

E-mail:  robbastian@aol.com

Can be reached at: 
o: 310-789-1955 
f: 310-822-1989 



Los Angeles Daily Journal on March 4, 2005: 

LACK OF FEDERAL COURT REVIEW ENABLES PRISON MISMANAGEMENT 

The latest U.S. Supreme Court case to address prison violence, Johnson v. California 2005 DJDAR 2118, concerns an inmate's challenge to the California Department of Correction's policy of segregating inmates by race in double cells for the first sixty days each time they enter or transfer into a correctional facility within the system. The Court had to choose from two lines of authority, which standard of review should apply: One line traces to Brown v. Board of Education (1954).  It holds that all racial classifications are constitutionally suspect and, therefore, subject to strict scrutiny.  The other supports a review deferential to prison administrators' concerns, even where constitutional rights are otherwise implicated. See, e.g., Turner v. Safley 482 U.S. 

78 (1987). During its tenure, the Warren Court routinely interpreted the Constitution as if the document presupposed the dignity and inherent worth of each person claiming its protections.  Regarding racial classifications, that legacy has been maintained so well that the most controversial issue which remains is how much protection will white students receive who seek admission into elite universities? In other areas, however, such as what constitutes cruel and inhuman punishment, the post-Warren Courts have angled back towards an earlier century where "hands off" was the rule. Indeed, Eighth Amendment jurisprudence has regressed to the point where the Court is reduced to deciding gothic issues such as whether tying inmates to a hitching post for seven hours without regular water or bathroom breaks is permissible. See, Hope v. Pelzer 536 U.S. 730 (2002). 

It was Chief Justice Earl Warren who, in Trop v. Dulles 356 U.S. 86 
(1958), stated that "[t]he basic concept underlying Eighth Amendment is nothing less than the dignity of man."  As the phrase "cruel and inhuman" is historically ambiguous and imprecise, Warren reasoned, "[t]he Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." By 1992, however, the Court held, in Hudson v. McMillan that a beating without "serious injury" may violate the Eighth Amendment, begging, but not answering the question how much of Hudson's swollen face, mouth, and lip, as well as his cracked dental plate and loosened teeth constituted a constitutionally serious injury. 

Dissenting Justices Thomas and Scalia would tack even further, asserting that such a beating, although it may be immoral, tortuous, criminal, or possibly even remediable under other constitutional provisions is not "cruel and unusual punishment." As for addressing inmate on inmate violence through, for example, errors in classification of incompatible inmates, the Court, in Farmers v. Brennan 511 U.S. 825 (1994), created out of its restrictive interpretation of the Eighth Amendment a mind-numbing subjective deliberate indifference standard: 

No matter how grossly inappropriate an inmate s classification, if the responsible but empty-headed prison official did not subjectively will the resulting violence to a degree somewhere between specific intent and greater-than-gross negligence which the oxymoron "deliberate indifference" was coined by federal courts to denote, the violence the blameless inmate suffered, no matter how severe, is not considered cruel and inhuman punishment. 

With the modern Court's additions of other barriers, such as the affirmative defense of good faith immunity to the defendant prison guard and Eleventh Amendment immunity to the guard's state prison employer, it should be clear that in almost all cases, an inmate brutalized due to a classification error does not stand a dog's chance in hell of vindicating any shred of what is left of the Eighth Amendment. The resulting federal doctrine is as good as "hand's off." 

The empirical result is that no class of plaintiffs fairs worse in federal courts than those pitiful prisoners who check mark "440 Other Civil Rights" on the civil cover sheets accompanying their filings. Into this push and pull came Johnson. So, would federal review of the CDC's classification procedures be a finely calibrated needle or a lifeless door nail? The Court chose the stricter standard.  But the choice was too stark: the Court is both too strict where racial classifications are imposed for "benign" purposes, while, in other areas, much too deferential to prison officials. 

Had the Court, heretofore, been less deferent, the $6 billion California prison system might not have sunk to where such shortcuts in classification are thought necessary. Currently, the CDC segregates inmates by race for sixty days because much inmate on inmate violence is gang- and, therefore, race-related.  During this waiting period, CDC staff is supposed to gather information which leads to making safe cell assignments.  Still, a major reason violence is so high and classification policies so ponderous is because the CDC's chronic mismanagement and poor leadership is, for the most part, unabated by meaningful federal court review. 

For the past three decades, California governors have been more interested in building, rather than administering prisons. During this time, legislative oversight was intermittent, due to term limits, the vagaries of opposition politics and the lack of popular support for reform. Consequently, the only persons consistently interested in abating prison violence have been the inmates who are being shot, beaten, raped, stabbed, maimed, and paralyzed.  But, when they come to federal court, they have often -- if not quite universally -- received a cold reception. 

Judges fashion unfavorable rules and immunity doctrines, handing down rulings designed more to clear court calendars than earnestly address festering prison problems.  Those conscientious judges who do try, often get undercut by judges sitting on higher courts whose agenda is -- as a matter of ideology more than experience -- to enlarge state rights and limit federal remedies. For prisoners, the decency Warren found in the Bill of Rights is being squeezed out of federal jurisprudence. 

It is dull surprise, then, that prisons built in isolated rural areas, often far from a reporter or an attorney, but never far from a union rep, have become unmanageably violent. In a word, they have become indecent. The Eddie Dillard case, in which our office represented the inmate, gave a rare glimpse at just how dysfunctional CDC classification procedures had become. For reasons unique to the case, a paper trail came to light with respect to one prolific cell rapist responsible for more than 30 reported incidents of attempted or completed sexual assaults at six different California prisons. 

Still, the predator was assigned more cellmates A Nebraska prison study suggests that only 3 in 10 such incidents are reported, not least from victims' fear of retaliation and guards' indifference.  So multiply 30 by 3 for just this one predator. 

What was the bridge too far that finally put this predator permanently on single cell status? 

The written order cites that this particular predator's recidivism was discussed in the a recent CBS 60 Minute broadcast watched by the officer making the classification order. So, what is the real CDC cell assignment policy, undisturbed by federal review? 

As late as six years ago, the de facto policy was: there is no classification problem, until it becomes a topic for Mike Wallace. 

Last year, former Gov. Deukmejian released his report in which he conceded the CDC is in crisis, and identified 239 areas for reform. But the most substantial reform proposed -- civilian oversight -- was dead before the report's ink dried. 

The person in charge of overseeing the CDC s prisons, Roderick Hickman, has cited the failure of civilian oversight to reign in the LAPD as justification for nixing the reform, as if even less independent review was consistent with reform.  Indeed, it was Hickman who started his tenure with an unsuccessful effort to terminate the independent Inspector General's Office. So, what credible, independent voice is there to assure the public that management of the level of violence within the CDC has changed? Suppose, things were twice, even three times better? 

How many assaults on average would that be? Unto this hell, the current Johnson Court expresses concern that sixty days of segregation is potentially stigmatizing. Consequently, under the strict scrutiny to be applied on remand, it is now possible that inmates in California prisons will no longer suffer that indignity, even as they are beaten, stabbed and raped. 

ROBERT L. BASTIAN JR. is a partner with the Law Offices of Bastian & Dini in Los Angeles.  The firm's practice emphasizes plaintiffs' civil righs litigation.



The following appeared in today's [March 17, 2005] Los Angeles Daily Journal written by our Rob Bastian who is writing and fighting for this bill in order to save lives. 

STATE LAW MUST REFLECT FATAL DANGERS 
OF POLICE CAR CHASES 

By ROBERT L. BASTIAN JR. 

The law does not tolerate police unreasonably shooting across a school yard to stop a fleeing suspect?  Why should it tolerate unreasonably pursuing the suspect across the same ground in a patrol car? 

"Kristie's Law," a bill reintroduced last week by state Sen. Sam Aamestad (R-Grass Valley), joined by Sen. Gloria Romero (D-Los Angeles), repairs a glaring deficiency in both federal and California law and, thereby, promotes public safety, fairness and accountability. 

The proposal simply holds police agencies to similar standards with respect to high speed police pursuits as the law already does regarding the use of deadly force, such as firing a gun. 

The law, which died in committee last year, is named after the senator's15-year-old constituent, honor student Kristie Priano, who was killed on the way to soccer practice when the van wherein she was a passenger was broadsided by another teenager running from the police. 

The officer who initiated the high speed chase through a residential area knew who his suspect was and where she lived.  He also knew her crime -- all she was accused of was taking her mother's car without the mother's permission. 

Nonetheless, Priano's parents had no legal means to hold either the officer or his department accountable under either federal or state law for this pointless high speed chase. 

In contrast to high speed pursuits, it is generally accepted that police officers are not permitted to dangerously fire weapons at fleeing suspects without reasonably considering public safety. 

For example, in Tennessee v. Garner 471 U.S. 1 (1985), a relatively conservative Supreme Court ruled that the use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. 

High speed police pursuits, however, receive less scrutiny in federal courts. 

In County of Sacramento v. Lewis 523 U.S. 833 (1998), the Court ruled on a case where two teenagers, presumed to be witnesses to a crime, fled on motorcycle from a peace officer.  The pursuit ended with the patrol car striking and killing the passenger. 

In the earlier shooting case, the Court held that a teenager who had been shot in the back had been "seized," thereby triggering the 4th Amendment's protection against unreasonable seizure. 

In the pursuit case, by contrast, the Court held, somewhat inconsistently, that the victim was not seized because, in essence, the officer had not intentionally caused that particular ending. 

Instead, the Court concluded that because the officer's conduct did not "shock the conscience," the police pursuit did not violate the more relaxed rule of 14th Amendment's protection against deprivations of life and liberty without due process. 

Due to such fine points of constitutional doctrine, the burden for regulating high speed pursuits has fallen on states.  Regrettably, no state is more forgiving of patently reckless behavior and poor judgment than California. 

In California, the vehicle code requires that California police agencies promulgate a policy with respect to police pursuits and that the policy meet certain minimum requirements.  But the law does not require the departments to follow it! 

This is so plainly unfair to victims of reckless pursuits that state courts have openly criticized the law, even as they are bound to follow it. 

In Nyugen v. City of Westminster (2002) 103 Cal.App.4th 1161, for example, the appellate court reluctantly upheld the dismissal of a lawsuit brought by the wife of an innocent man killed by a police pursuit of a stolen vehicle which ended on school grounds. 

Still, the court expressed "displeasure" with a law which "grants a `get out of liability free card' to public entities that go through the formality of adopting such a policy." 

The court added, it was "especially chilling that this particular instance occurred on the property of a school where students were present, but it is also sad that one blameless person was seriously injured as a result of the pursuit, and that his family has no option for redress." 

Opponents of Kristie's Law charge that, by holding police departments accountable, it misdirects blame away from the person who started the pursuit. Critics suggest, rather, increased criminal penalties for fleeing. 

Added criminal penalties, however, are unlikely to deter where a fleeing suspect's judgment, already presumptively lacking, is impaired by alcohol, drugs, mental illness or, in the case of the driver who slammed into the van carrying Kristie Priamo, teenage immaturity. 

Quite the contrary, it is often the anticipated draconian penalties - when "freedom," per Kris Kristofferson, "is just another word for nothing left to lose" -  which motivates the flight. 

Opponents add Kristie's Law will encourage others who would not otherwise flee to make an escape.  But the same argument was made against imposing standards regarding the use of deadly force.  In most cases, there are better ways to solve the crime or make the arrest.  Even where the isn't, police are still free to conduct the pursuit.  The only difference is that, afterwards, the police agency will be held accountable for instances of unreasonable judgment, training or supervision. 

The Nguyen court concluded:  "We urge the Legislature to revisit this statute and seriously reconsider the balance between public entity immunity and public safety. The balance appears to have shifted too far toward immunity and left public safety, as well as compensation for innocent victims, twisting in the wind." 

The legislature should listen to this court. 

BY ROBERT L. BASTIAN JR. 

. . .is a partner in the Law Offices of Bastian & Dini, in Los Angeles 

Contact: 

Robert L. Bastian Jr. Law Offices of Bastian & Dini 
1925 Century Park East, Ste. 500 Los Angeles, CA 90067-2700 p: 310- 
789-1955 f: 310-822-1989 h: 310-822-1961 e:  robbastian@aol.com



 http://www.dailynews.com/Stories/0,1413,200~24781~2809816,00.html
 

Kristie's Law would control cop chases

Latest bizarre pursuit shows need for changes in California policy

By Robert L. Bastian Jr.

The Los Angeles Police Department has no explanation for why, on the night of last March 31, a motorcycle officer continued a wild pursuit of a forgery suspect on motorcycle through Westside red lights onto Beverly Hills sidewalks.

The LAPD suggests he wasn't one of their own, but no other police department in the area is claiming this officer either.This bizarre police chase provides yet another reason to enact Kristie's Law, a bill reintroduced last month by state Sen. Sam Aanestad, R-Nevada City, and joined by Sen. Gloria Romero, D-Los Angeles. 

Kristie's Law repairs a glaring deficiency in California law: As the vehicle code is currently written, law enforcement agencies in California must promulgate appropriate police pursuit policies. But they are not required to follow them. If your grandparent recklessly breaks the rules of the road and injures someone, he or she is held legally accountable. But, if a police officer in the heat of a chase - like the officer in Beverly Hills - trades professionalism, training and restraint for reckless stupidity, there are no practical consequences for him or even his department.It is dull surprise that California, the state with the most forgiving tort law imaginable regarding pursuits, also leads the nation in innocent fatalities during such chases. From 2001 until 2003, the National Highway Safety Administration reports, 159 Californians were killed in police pursuits, 59 of whom were innocent victims.Kristie Priano's story is a perfect example of the dangers. 

On that fateful day in 2002, a police officer initiated a pursuit through a Chico neighborhood of a teenager who had taken her mother's car without permission. The fleeing car ultimately struck the Prianos' family van and killed Kristie, a 15-year-old honor student on her way to soccer practice.When Dirty Harry resolved a hostage situation by accelerating his car through the front window of a liquor store and shooting the startled bad guy in the head as he terrorized an innocent hostage, it made for gripping movie action. In the real world, however, officers are trained to exercise restraint, not least because in the uncontrolled real world, neither speeding bullets nor vehicles are as predictable as movie scripts.

Whereas the law does not permit officers to recklessly shoot bullets, say, across a schoolyard without reasonable justification, it does allow an officer to recklessly drive across a schoolyard in pursuit, no post-incident questions necessary. When, for example, such a schoolyard pursuit in Westminster resulted in death, a California appellate court reluctantly upheld a swift dismissal of the widow's lawsuit.The court, nonetheless, urged the Legislature to revise the law.

"The balance," the troubled panel of three judges observed, "appears to have shifted too far toward immunity and left public safety, as well as compensation for innocent victims, twisting in the wind."Opponents of Kristie's Law grumble that holding police departments accountable misdirects blame away from the lawbreakers who cause pursuits. These critics advocate, rather, increased criminal penalties for flight.Added sanction, however, is unlikely to deter when a fleeing suspect's judgment, already presumptively lacking, is impaired by alcohol, drugs, mental illness or, in the case of the driver who slammed into the van carrying Kristie Priano, teenage immaturity. To the extent such persons are even acting with minimum rationality, it is often fear of draconian penalties that motivates and adds urgency to the flight.Opponents add Kristie's Law will encourage others who would not otherwise flee to attempt escape. 

But the same argument has been made against imposing standards regarding the use of lethal weapons - and rejected. In most cases, there are better ways to solve the crime or make the arrest.Even where there isn't, police will still be free to initiate the pursuit. The difference is that, afterward, the police agency will be held accountable for instances of unreasonable judgment, training or supervision.As the law currently sets, neither the daredevil cop in Beverly Hills nor his department could have been held accountable if someone was recklessly injured or killed. This assumes, of course, authorities can catch the cowboy or identify which department's badge he wears.---

Robert L. Bastian Jr. is an attorney in Los Angeles.



foregoing appeared in the Los Angeles Daily Journal, 
Wednesday, March 20, 2005.

DARK TALES MAY LIE BENEATH `OUTRAGEOUS' PRISONER CLAIMS

By Robert L. Bastian Jr. 

What is otherwise a dry subject – technical analysis of statutorily imposed administrative exhaustion requirements in a prisoner rights case -- can, nonetheless, be subtly critical to upholding the rule of law and preserving critical civil liberties. If the devil is found in details, angels sometimes reside in results.

In Ngo v. Woodward, 2005 DJDAR 3445, a Ninth Circuit panel recently reversed dismissal of the prisoner’s civil case challenging conditions of his confinement. The lower court reasoned that, by earlier presenting an untimely prison appeal, the prisoner failed to exhaust his administrative remedies, thereby running afoul of a precondition of his lawsuit set by the Prison Litigation Reform Act of 1995 [PLRA]. By contrast, the reviewing court held that the alleged procedural default at the administrative level did not defeat his otherwise presumptively actionable claims.

Such small victories are large, important ones in California where politicians across the political spectrum have acknowledged that the state’s $6 billion prison behemoth is essentially dysfunctional. Part of the reason the prison archipelago has failed is that, even as it grew beyond accountability to state authorities, both the Supreme Court and Congress lost interest in monitoring whether even minimum federal rights are accorded prisoners.

The Prison Litigation Reform Act of 1995, which the Ngo court interprets, was a disgraceful legislative act by a distracted and inattentive Congress. Generally, the Act was designed to reduce federal court "micromanagement" of prisons and reduce "the flood" of prisoner litigation. Despite the Act’s impact on over a million prisoners at the time, there is little legislative activity supporting it. 

There was no committee markup or Judiciary Committee report explaining the proposal. Instead, it was merely attached as a rider to an omnibus appropriations bill and signed into law.

In support of the Act, the National Association of Attorneys General solicited lists of outrageously frivolous lawsuits from its members to encourage the Act’s enactment, then, disseminated them to the press. Three of the most widely disseminated were: 1. an inmate who sued because there were no salad bars or brunches on weekends and holidays; 2. an inmate who sued because his prison towels were white instead of his preferred beige; and 3. an inmate claiming cruel and inhuman punishment because he received one jar of chunky and one jar of creamy peanut butter after ordering two jars of chunky from the prison canteen.

To balance such cherry picking, they might have looked at what was happening at Corcoran, around the same time: 1. guards setting up fights among inmates, then shooting them; 2. greeting busloads of prisoners with a gauntlet of beatings; or 3. placing inmates in cells with known cellie rapists, ostensively as a form of punishment. Prison staff who, in resisting this culture were ultimately fired for their efforts, referred to the warden at the time, now deceased, as "Mushroom George." It was because, regarding such matters, "he liked to be kept in the dark."

By contrast, the suspicions of the Honorable Jon O. Newman of the Second Circuit were justified when he followed up on the NAAG’s claims, hyped as their favorite frivolous lawsuits. Newman related, "I was skeptical of the description of three cases because it has not been my experience in twenty-four years as a federal judge that what the attorneys general described was at all `typical’ of prisoner litigation." Newman, Pro Se Litigation: Looking for Needles in Haystacks 62 Brook L. Rev. 519, 520 (1996).

What he found after obtaining and reviewing the actual court documents was the following:

Regarding the "salad bar" case, 43 prisoners had filed a 27 page complaint "alleging major prison deficiencies including overcrowding, forced confinement of prisoners with contagious diseases, lack of proper ventilation, lack of sufficient food, and food contaminated by rodents." The prisoners’ reference, in passing, to a salad bar was in the context of the bar’s availability to other prisoners within the system and the guards at that particular facility.

Regarding the "beige towel" case, what really happened is a package including a jacket and towels from the prisoner’s family was confiscated and he was disciplined with loss of privileges. According to the complaint, the confiscation "cause[d] a burden on my family who work hard and had to make sacrifices to buy me the items mention[ed] int the claim."

Finally, regarding the "chunky peanut butter" case, what really happened is that the prisoner’s meager account had been debited when the prison guard willingly took back the wrong kind of peanut butter, then, cynically reneged on his promise to give the prisoner the correct product.

Clichés regarding micromangement and floods were, thus, supported with mythical anecdotes. Nonetheless, journalists such as George Will latched onto one or more of these fables to fan public support, or more accurately, a drowsy public consent to the legislation.

In his 1921 tome Public Opinion, Walter Lippman offered the deepest insight on the subject: 

"There is another reason, besides economy of effort, why we so often hold to our stereotypes when we might pursue a more disinterested vision. The systems of stereotypes may be the core of our personal tradition, the defenses of our position in society. . . In that world people and things have their well-known places, and do certain expected things. We feel at home there. We fit in. We are members."

Lippman adds: "Our stereotyped world is not necessarily the world we should like it to be. It is simply the kind of world we expect it to be. If events correspond there is a sense of familiarity, and we feel that we are moving with the movement of events."

"No wonder, then," he concludes, "that any disturbance of the stereotypes seems like an attack upon the foundations of the universe."

The photos from Abu Ghraib were such a disturbance. The cognitively dissonant images upset an otherwise favorable image of how American handle such custodial situations. Not surprisingly, one of the Defense Secretary’s first acts in response was to ban unauthorized use of cameras.

Currently, the only uncompromised lense into the California prison system is the wheat--among--chaff of prisoners’ civil complaints in federal court. 

At this point, it would be foolish to place trust in correctional staff, subject as they are to a well-demonstrated code of silence; the current departmental leadership, which only tolerated the continued independence of the office of internal investigations under transitory political pressure; or the legislative and executive branches of state government who, until now, have been reliably outmaneuvered or won over by the guard’s powerful union.

In California prisons, prisoners must present their "602" administrative appeals within 15 days of the challenged event to the correctional officer responsible. In some cases, depending upon how prison officials interpret their own rules, that means the inmate hands an administrative appeal to guards who actually sexually assaulted or beat them. This is a system designed almost to ensure retaliation against complaining victims.

The Ngo court, demonstrating wisdom borne of judicial experience, noted: 

"In a prison grievance system, the trust between prisoners and the administration is minimal at best, and nonexistent at worst. As is, prison grievance procedures are sufficiently difficult for prisoners to comply with. Judicial imposition of the procedural default doctrine on suits brought under the PLRA, coupled with the relatively short filing periods for prisoner grievances, might very well preclude prisoner litigants with meritorious claims from ever bringing suit. Not even proponents of the PLRA wanted to bar worthy claims."

In short, Ngo satisfies Congressional intent, refrains from adding procedural doctrine not explicit in the statute and, most importantly, helps preserve the integrity of the limited lense into the nether world of California prisons. Ngo promotes both rule of law and interposes a proper role for federal courts.

The postscript is that this will result in more work for the federal courts. This is, however, only fitting, for there is much which must be done.

By Robert L. Bastian Jr.
is a partner with the Law Offices
of Bastian & Dini in Los Angeles



The following appears in today Tuesday, June 21, 2005 Los Angeles Daily Journal.  Which circulates to judges and lawyers.  Rob is a person who truly loves justice and volunteers his time to educate his colleagues by writing articles.  It's about Henderson's ruling, a wonderful inspiring piece which will be post at the website where we keep  his writings. 

If only we had the good sense to organize and could elect Rob Bastian to office, (if we could talk him into doing it) what a different world it could be with more organizing. 

He gets shot out of a canon fighting for civil rights everyday.  And then he wakes Up the next morning and does it again.  Our suffering inspires him in his work but his higher mind inspires us, to know that there is at least one good lawyer out there. 

Rare These Days, District Court Stands for Justice in Prison Case 

By: Robert L. Bastian Jr. 

Two related trends are worsening government officials' indifference to the minimum standards of constitutional rights and human decency which should be accorded persons in American custody. The first is citizens' increasing reliance on faith or belief, rather than evidence and proof, in forming opinion regarding matters of public policy. The second is federal courts' retrenchment from their structural duty to protect the minimum constitutional rights of disfavored persons and groups. 

Throughout America's history, there has been a well-recognized tension between those with an essentially benign view of American government against those more skeptical of human institutions. On one hand, American government is viewed, not merely as good, but as the "Shining City on the Hill" of John Winthrop, an organization of man favored by God, exceptional among other nations, with a "manifest" destiny. 

By contrast, there is a strain which traces back to enlightenment inspired founders who viewed human nature and, therefore, political institutions as inherently corruptible. Based upon their careful analysis of the history of prior republics and tyrannies, these founders initiated "an experiment" in republican government, constructed of coordinate branches which checked and balanced each others' powers. 

Currently, large portions of the citizenry have adopted opinions that are extremely resistant to refutation with evidence. Whether they are predisposed to a patriotic faith that American policies are right (because American takes care of the problems as they arise), or they have grown commensurately cynical (because they invariably distrust both the motives and policies of government), minds are closed to facts. 

In times that are both threatening and complex, it is comforting to have stability of belief, reinforced by the illusion that each new set of facts, confirms, rather than challenges misplaced faith. 

Regarding how prisoners are treated in American custody, for example, mounting evidence of systematic abuse stimulates very little reaction. Last year, arguably the most news worthy scandal was the abuse revealed by the Abu Ghraib photos. Yet, in three presidential debates, neither interlocutors or candidates broached the subject. Opinions were fixed. 

A similar division of attitudes - trusting vs. distrustful -- towards executive government exists among federal judges. This division, in turn, drives legal doctrine. Some judges are extremely deferential to custodial authorities, while others are inclined to give greater force to constitutional protections under, in particular, the Fourth, Eighth and Fourteenth Amendments. Unfortunately, the trend, for the last three decades, has been decisively towards greater deference to government and narrower remedies for victims of abuse. 

As federal courts once enabled Jim Crow by limiting their own jurisdiction, narrowly interpreting federal law and exalting state's rights, federal courts have similarly facilitated declining prison conditions. Much of the authority-forgiving, court-created doctrine created during this period reached its logical apogee in the White House torture memos, wherein administration attorneys narrowly defined torture, while emphasizing the broad sweep of legal defenses and immunity doctrines. 

The first step, then, in stirring stagnant public opinion is presenting relevant evidence in federal forums. Some district courts, notwithstanding these trends, are receiving such evidence. 

In the past two weeks, for example, a federal court in New York acting upon an ACLU Freedom of Information Act request, ordered the government to release videos and photos not previously disclosed of abuse at Abu Ghraib. The court reasoned that this was "the best evidence" of what occurred relevant to public debate on the subject. This includes the important question of whether the abuse was, as the Administration would have it, limited to "a few bad apples." 

Critics have vilified the judge and the ACLU for allegedly having an unpatriotic motive to humiliate America. But it is no stretch to imagine that, if no photographs had ever made it into the public eye, those same critics would be sneering at otherwise accurate reports of such abuse. 

Indeed, one of the first policy changes after the Abu Ghraib photos became public was the defense secretary's order to prohibit soldiers from carrying phones that double as cameras. For similar reasons, presidents since Nixon have not taped conversations in the Oval Office. Nor is it small irony that the administration has resisted making the remaining photos public on grounds disclosure would violate Geneva accords. 

The same critics, including the president himself, have appeared predisposed to believe independent reports on human rights, such as Amnesty International's, when they are directed at China, North Korea, or, before the war on terror, Iraq. Yet, when Amnesty presented the evidence against America, it is the watchdog's motives, not the facts supporting the analysis which were attacked. Albeit, the Amnesty report invited such obfuscation of the subject when, instead of letting the investigative facts speak for themselves, it hyperbolically compared Gitmo to Soviet Gulags. 

The public policy debate, already distorted by delayed prisoner access to attorneys and due process at Guantánamo, was muddied further by the misreporting of Newsweek which falsely reporting that allegations guards had desecrated the Quran had been confirmed by official investigation. 

Still, the most important empirical question is whether there is abuse, not merely whether government investigators concluded that there is abuse. It was found by Pentagon investigators that a guard's urine was splashed on a Qur'an after it wafted through a vent. 

Likewise, a guard was dismissed for kicking a Quran. Additionally, it was reported by an Army sergeant that an American female interrogator, inter alia, smeared false menstrual blood on detainees in an effort to humiliate the prisoner's religious sensibility. Without photos or the due process that might lead to more varied sources reliable evidence, there remains a credibility deficit with the administration. 

Like a contagion, this public distrust has spread to the press and independent watchdogs. Meanwhile, the Supreme Court's hesitancy to impose limits on the Administration may show some of the institutional prudence that preserves its jealously guarded prestige. But failure to fulfill its role comes at the expense of these other institutions burning themselves out on these troubling issues. 

A falling tide lowers all boats and, in this bathtub, no one is plugging the drain. The cumulative result is the dumbing down of America's minimum standards regarding the treatment of prisoners. 

California faces related problems. Last year, the current governor appointed former governor Deukmejian, the person largely responsible for the prison building boom in California to critique the myriad ways California's $6 billion prison system has failed. Last year, Deukmejian's investigation identified no less than 239 areas that needed reform in a system he acknowledged was dysfunctional. Yet, his chief reform, instituting independent oversight was dead before the ink dried on his report. 

In a similarly embattled context, Defense Secretary Rumsfeld remarked that democracies rely upon oversight. So, however, do authoritarian and totalitarian regimes. The key difference which distinguishes a constitutional democracy is reliance on independent oversight. 

Regarding California prisons, the only practical place to turn for structural independence are the federal courts. Over the past two weeks, a district court judge sitting in San Francisco, Thelton Henderson, has been hearing the testimony of doctors hired to review correction's compliance with an earlier settlement of a lawsuit challenging prison health care conditions. 

Henderson, frustrated with the $1.1 billion healthcare system, described at times as "macabre," "medieval," and worse than the infamous Angola prison prior to its reform, appears poised to appoint an independent receiver to take control of the institution. After a doctor testified to numerous preventable deaths within the CDC, Henderson remarked, "I can see myself appointing a receiver to stop 60-some people a year from dying." 

Whether this is as problematic as the thirty-two or so prisoners who died in military custody since the end if the Iraqi war depends upon whether one views the opposite of compassion as hatred or merely indifference. 

It is, nonetheless, reassuring that, after so much public policy sclerosis regarding custodial abuse, at least one judge in a position of power is confronting such failures. Even better, he appears to be addressing them with all deliberate speed.



September 2005

KATRINA, TRADITION OF INJUSTICE COMBINE, MAKE PERFECT STORM 
 

By Robert L. Bastian Jr. 
 

The practice of law in New Orleans, I would learn as a Los Angeles lawyer admitted to the California bar, has a different rhythm. The rhythm was, in a word, easy. 

I was working with a Los Angeles colleague who also had an office in Jefferson Parish, just across the bridge from Orleans Parish, on the police abuse cases that were coming in his door. My first appearance would be a hearing on an appeal before the Fifth Circuit Court of Appeals in downtown New Orleans. I argued on behalf of a Vietnamese teenager who a Jefferson Parish sheriff's deputy wacked on the back of the head with a flash light. The jury awarded him exactly $711 in compensatory damages (the cost of his emergency room visit) and $500 in punitive damages. The case law could not have been clearer that he was entitled to a new trial on damages. Nor was there any basis for overturning the verdict on liability. 

Walking through the marble splendor of the Fifth Circuit palace, I noticed an elderly man, slumped over in his wheel chair, hooked up to tubes, and meticulously cared for by a striking dark haired nurse. The only trait that he projected other than his obvious frailty was, given the surroundings, an indefinable stubbornness. Opposing counsel, in a deep Louisiana accent, pointed out that that was judge so-and-so. Changing the subject, he causally informed me that he played golf last week with one of the judges sitting on the three judge panel before which we were about to argue. 

Near the end of my argument, one judge asked me if I would prefer new trial on both liability and damages, or neither (impliedly protecting plaintiff's right to attorney fees as a prevailing party)? Then, he flashed a courtly smile. It was pretty much the same smile of the deputy who worked for Jefferson Parish Sheriff Harry Lee. Sheriff Lee would get on the radio and say things like, "Of course we are going to stop a car full of black teenagers if they are driving through a nice neighborhood." The ACLU would go ballistic and Sheriff Lee, running in the same area that elected David Duke, would routinely return to office with greater than 70% of the vote. Now, this deputy was being defended by the law firm that -- oh, by the way -- still had Harry Lee on the letterhead as a named partner, and whose younger counsel played golf with the judge last week. It was fated that the district court's denial of new trial would be upheld. 
 

The judge's real question was, "Don't you understand that this is as much justice as a young man needed in New Orleans, particularly in January?" 

That January evening, I would retreat into the Quarter, which was already bedecked with the purple, green and gold ornamentation pre- shadowing Mardi Gras. William Faulkner described New Orleans as "a courtesan whose hold is strong upon the mature, and to whose charm the young must respond." 

A few years later, our firm stipulated to a bench trial in the Central District of California before a visiting district court judge from New Orleans. We were representing an inmate who suffered a beating by correctional officers at the California Institute for Men. The case was going on 11 years, having already once been mis- tried. My sources in New Orleans told me the judge could be fair. 

During trial I had one of those fateful moments where an attorney has to make a quick decision. Defense counsel was taking one of the defendants on direct and I interposed an objection -- "Lacks foundation, Your Honor." I was greeted with silence. The decision wasn't really hard though. It was obvious that we had proved our case beyond peradventure. Each of the four defendants had contradicted each other on the stand; the prison records were all demonstratively dubious; and the only witness whose story held together was plaintiff's. I jumped to my feet and screamed, "Objection, your Honor, lacks foundation." 

As the elderly judge returned to wakefulness, cleared his throat and mumbled, "Ask the question again," his clerk, a young auburn-haired lady whom he brought with him from New Orleans, gracefully rose without prompting, retreated towards chambers and returned with a cup of coffee. With equal grace, she stepped up to the bench and placed it in front of him. Nine months later, both certain that plaintiff won and, in our hearts, knowing that we had won, we received an order granting a defense verdict. 

As someone who has litigated against Jefferson Parish, I could only chuckle when I heard that its Sheriff, in response to this recent crisis, tried to suspend civil liberties and impose martial law, only to find that there was no mechanism in Louisiana law to do so. My theory is that legislature never addressed the issue because such a measure would have been patently redundant. 

The news channels broadcast that one New Orleans police officer was shot by a looter, but failed to report what the City's venerable newspaper, the Times-Picayune, since displaced to Baton Rouge caught -- that some of its officers had joined in the looting. One reporter noted an officer carting off a laptop computer and a big- screen TV. An onlooker remarked, "the police got all the best stuff. They're crookeder than us." 

Where are the New Orleans Police Department's evidence rooms? Where are the appeals of criminal cases stored in the court at Tulane Ave. and Broad St.? In, respectively, the headquarters and court's basements. One third of Louisiana's attorneys are now without an office. 

Where, then, is justice? 

After the last drop that Lake Pontchartrain spilled into New Orleans is wrung dry from the walls of the French Quarter residence where Tennessee Williams wrote Streetcar Named Desire, from the Café du Monde, the warehouses along the river, the verandas in the Garden District, the rows of shotgun houses, its hospitals, nursing homes, bars and bordellos, and from what is left of the city's public housing and tenements; after each drop has been replaced by a tear for those left behind; persons, homes, memories, historical sites, each crushed and washed away; after each tear has been replaced by a word in prayer or from the pulpit; ringing words wringing the deeper meanings of God's will, destiny or fate; Someone will have to ask -- assuming causation is still a relevant concept after so much grief -- what caused so much damage to New Orleans? 

A Category 4 hurricane was clearly not beyond prudent imagination. Indeed, this was not even a "worst-case scenario." How did such a hurricane which directly hit the Mississippi gulf coast, indirectly so thoroughly sink New Orleans as well? When it happens, sorrow will turn to anger and, thereafter, perhaps, understanding. 

A law professor, trained in philosophy, once introduced her class to the problem of causation by handing an egg to a student in the first row and asking him to read it. Clearly printed on the egg was, "I am a super egg; I am indestructible; I will not break." Thus egged on, the student threw it at the wall and it splattered to the titillation of the now engaged audience. 

"What caused this?" she asked, turning to write the classes' answers on the blackboard. 

"The student," "the professor who handed the egg to the student," "the store that sold the egg to the professor," "the hen," "the rooster," "the farmer," "the farmer's mother," "Adam," "Eve," etc., until the ample blackboard could hold no more. 

"Now," the professor returned her attention to the students, "how do we focus on those causes that are substantial, on those that are relevant?" 

Was it Katrina? Mother nature? God? Will Pat Robertson blame homosexuals or, perhaps, Hugo Chavez? 

Was there too much faith in science? Or too much faith and too little science? 

Was there an engineering failure? Or a failure to listen to engineers? 

Did politicians fail to prioritize? Or were they too responsive to citizen's misdirected priorities? 

Were citizens sufficiently educated? Was the media, in particular, cable news, irresponsible? After all, a reporter can stand in a wind tunnel and scare old ladies about what a hurricane can do, but where was the investigation and reporting that would have led to an educated consensus on what organized people can do to prepare? Or was there insufficient fertile ground on which to drop such seeds? 

Did those who have knowledge of the city's vulnerability fail to ring the bell, or was the bell ringing on deaf ears? Or where they drowned out by sweet, winsome trumpets? 

One thing is certain: More than merely three levees failed. 

There was a failure of collective intelligence. The levees were built to withstand a Category 3 hurricane. But the odds of New Orleans dodging a 4 or a 5 were worse than those offered on the Biloxi Casinos which Katrina casually washed ashore. Knowing that the levees were vulnerable above Category 3, what possible excuse could there be for the lack of an adequate evacuation plan? 

Even accounting for the famous fatalism of the New Orleans residents who knew they lived in "a soup bowl" between Lake Pontchartrain and the curve of the Mississippi River, what level of corruption, pride and indifference hid behind a mask of courtly humor? 

Once, walking through the Quarter, I struck up a conversation with a young man painting a building. He was a law student at LSU on his summer break and the building formerly was the residence of Tennessee Williams. Impressed, I remarked that he was painting, not just a building, but a part of American literary heritage. 

"Nah," he replied, with the air that he was suffering yet another outsider, "I'm just painting a building." My favorite historical example of an ignorant outsider being put down is a letter written in the Times-Picayune, March 22, 1853, correcting the author of "Uncle Tom's Cabin": 

"To point out some of the inaccuracies I merely cite this example on page 19, vol. 1, where Mr. Shelby is conversing with Haley, the negro trader. Haley remarks that he has seen in New Orleans infants taken from their mothers and sold. Now this is an absolute lie, and it is a pity Mrs. Stowe was not a little better informed, for there is a law in Louisiana which expressly forbids the selling of any child from its mother under ten years of age. See section 9, Black Code of Louisiana." 

"No," I thought to myself, "you're painting more than a building." 

Fatalism is not the same as fate and, in this case, those who rejected more extensive preparation are implicated in the city's misfortune. As the city's poor wade through the water toward the 10 freeway where it rises to cross the Mississippi, one more chapter is framed for a city which never delivered to its own citizens adequate service or, merely, enough justice. 

Robert L. Bastian Jr. is a partner in the Law Offices of Bastian & Dini, Los Angeles


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