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Tuesday, May 31, 2005

Harvard Westlake Hate Crimes: LA DA's statements and actions allegedly inconsistent with prosecutor guide and signed policies

Reader tip: There is an Archive for the HW articles.

More than a month ago, the Caplin family was forced to file suit in order to ensure the Harvard Westlake faculty and Los Angeles County District Attorney Steve Cooley did their jobs in combating hate crimes. Now the FBI and LAPD are reviewing the allegations.

Unfortunately for the DA, we did some checking. It's ugly.By no means is the research complete. The more we dig, the worse it gets.

We've gone into some discussion about the issues. Of concern is the LA DA's own prosecutor guide clearly states standards which the prosecutor has failed to demonstrate he is following.

This note outlines the apparent disconnect between what the LA District Attorney has signed, his statements, and a plain reading of the hate crimes statutes. The DA's statements and decisions do not appear to be consistent with these guides, policies, or statute.

The Los Angeles District Attorney appears to have publicly violated his own signed policies. In signed policies released in 2003 and still available in 2004, Cooley clearly stated that hate crimes would be investigated if there were threats.

Yet when asked about the decision not to prosecute, Cooley is reported to have said, "The students didn't intend to carry out the death threats."

Small problem. The DA's own website says nothing about intent. The website focuses solely on whether there were threats of violence and makes no mention of the intent of the defendant.

Disturbingly, the prosecutor's guide the hate crimes mentions the problem with e-mail and the internet. This is not a new problem. Hate crimes have been tracked for years. Some reports, for purposes of comparison, include data going back to the early 1980s.

What is more disturbing is that the DA's own office had personnel on the Hate Crimes Commission and were instrumental in creating a Prosecutor's Guide for Hate Crimes. Where were they during the decision to not prosecute at Harvard Westlake?

In our non-legal opinion, Cooley's public reasons for the declination [decision not to prosecute] are not consistent with his own policies, statute, or the State Attorney General.

The amount of guidance, discussion, and public information about hate crimes is abundant. There are many reports, networking groups, and other public documents clearly providing guidance.

In other words, at the time that the prosecutor was getting accolades for having a fine hate crimes program, his own staff was writing guides and part of the commissions to institutionalize these lessons, yet we find no evidence to suggest this vast pool of information translated into an appropriate decision.

The actions in the LA DA's office have national implications. Allegations in re LAX have bearing on other jurisdictions. If other parts of the country can't rely on the LA DA to properly assess the situation, then other jurisdictions need to be put on notice: There is a chance that misconduct in LA will not get aggressively mitigated, and they're going to hope you cannot find their history of misconduct in re recidivism decisions.

Cooley's office even received accolades for the work on hate crimes.

We remain puzzled why, despite the clearly signed policies and excellent ratings and many staff involved in advising DoJ on Hate crimes, something fell through the cracks.

Understandably, schools are reluctant to report hate crimes as this causes undue public attention. However, this issue was already identified by the State Commission as something that could be remedied.

Overall, there's little to suggest Cooley or anyone in the DA's office missed something. Rather, it remains to be understood through discovery and litigation, why the DA would make a decision contrary to the DA's signed policies; and also state and federal guidance.

  • Basis for investigation

    Of interest is the LAPD Decision to investigate. The DA's office is the source of the investigation cards. Are we to believe that, despite the DA apparent error, that LAPD has the correct investigation cards?

  • Basis for declination

    Cooley's problems begin when his stated reasons for the declination do not add up to what is a credible declination; the ethics standards for review; or the elements for a hate crime.

    Specifically, the hate crimes statues do not require that someone actually commit an overt act of violence; only that the act contains a threat that a reasonable person would believe would be a threat; and that the person carrying out the threat had the capability to carry out that act.

    It is a separate issue whether the person intended to carry out the act.

    Thus, when we hear from Cooley that the students "didn't intend" to carry out the act, this does nothing to address the elements of a hate crime.

    Exhibits and Brief Discussion and Commentary

  • Statutes

    California Civil Code § 51.7 and Penal Code § 186.21 are mentioned on the DA's website.
    QUOTE: District and city attorneys and the Attorney General also have the authority to enforce the Bane and Ralph Acts.ENDQUOTERef Item #13, page 23 of46

  • Cooley's public statements

    Cooley took the oath, stating he wanted to bring integrity to government.

    Cooley has also welcomed outside reviews. ''What better way to ensure public integrity than to let a little sunshine in?'' Cooley says. [Ref: Courting Trouble By Edward Humes, Los Angeles Magazine. Oct 2001]

  • Outside reviews

    Cooley has been recognized for his outstanding achievements in re Hate Crimes.
    2001: QUOTE "Lockyer applauded the Los Angeles County District Attorney's Office for its excellent hate crime prosecution record"END QUOTE

  • The signed memo

    Cooley signed the 2003 memo clearly outlining two critical elements for hate crimes: That there is a [a]threat of [b] violence.

    QUOTE: "Using force or threatening to use force to injure"ENDQUOTE

    QUOTE: As District Attorney, I am fully committed to fighting hate crimes. Specially trained lawyers in our Hate Crimes Unit and Victim Impact Program vigorously
    prosecute hate crime offenders throughout the county.ENDQUOTE

  • Cooley's website in re hate crimes

    The DA's website is consistent with this signed definition. Here is the Website. It would be useful to show over time how the definition changed; and how the DA's prosecutor decisions changed or did not change relative to the definition of hate crimes.

    This link shows that in 2001 the hate crimes definition was "Using force or threatening to use force". By 2004 this language remained the same: "Using force or threatening to use force. . . "

    Note that there is no reference to intent. We unclear what information within the DA's control would guide the DA to believe that the requisite standard is "intent". The DA's own website specifically states the opposite: That the threat of force is sufficient.

    It will be important to establish what the existing hate crimes definition was at the time of the first notification; what policies were in place at that time; and what information was publicly placed on the website. It would remain a matter of fact as to why there were apparent disconnects between what the internet definitions were and what the public statements were. At this juncture, it appears as though there is wide divergence.

    Also, the website specifically mentions, "under California law, all persons have the right to be free from violence or threat of violence". It is likely that the DA's office will posit as a defense something about "Confusion" over the statutes; that there was conflicting guidance from the State DA's office; or that the massive number of bills signed into law made the whole definition convoluted and confusion.

    How quaint. The objective of having a public prosecutor is to make sense of the 'confusion,' not to use the 'confusion' as a basis of defense. Is the DA over his head; does he not have the requisite management skills to keep track of the information; despite having guides in his office and personnel assigned to the State AG Commission, does is he not able to dovetail the existing standards and statutes with the elements of a given case?

    If the DA is having trouble doing this, it does not appear as though it is because the information is not there, or that there are insufficient guides available. Rather, it appears as though despite the vast experience of the DA, there's a small problem with planning and case management. This does not inspire confidence in the DA's office.

    But more broadly, it remains to be understood what private law firm, if any, is providing the guidance to the DA's office. Perhaps, in this time of budget cuts, the DA's office is not solely relying on in-house counsel, but is deferring questions to outside municipal attorneys. It remains a matter for the state bar and for other causes of action to assess whether this outside counsel, if it exists and is on contract, is suitable and providing the needed assistance at the standard the public and board of supervisors might expect.

    More broadly, once outside counsel is identified it would be useful to do a cross-state survey of other municipalities and entities to assess to what extent this counsel has or has not been effective in providing timely, accurate, and useful information to government officials. Perhaps some downgrades are in order in the attorney awards, or a reallocation of workload from existing firms to those that are both more responsive and provide "better" legal advice.

    We remain unclear whether the DA actually consulted with anyone outside the DA's office or whether there was perhaps some negligent legal advice given to the DA by outside private counsel that would amount to malpractice. Such is a matter of the courts to decide in a separate cause of action.

  • DA Ethics guidelines

    This document outlines the various considerations the DA uses when declining a case.

    Note the second titled, "PROSECUTOR'S LEGAL AND ETHICAL OBLIGATIONS," and the sentence that says, "the prosecutor should file a criminal complaint only if four basic requirements are satisfied".

    What is important to point out is that if the DA is using the "wrong" basis to evaluate a case, then there is no reason to believe that the declination decision will be consistent with public policy.

    In other words, if the DA is stating that the basis to charge the students is their "intent" [when this is an illusory element], we might question to what extent the DA is in compliance with the ABA ethics guidelines in re prosecutor conduct.

    To say it another way, if we were overlap the nexus of "the DA appears to have gotten it wrong on what constitutes a hate crime" and overlay that on top of these four criteria, we then generate new questions:

  • How can the DA argue there has been a complete investigation and thorough investigation of all pertinent data if the basis to evaluate the case uses criteria not consistent with the statute and prosecutors guide?

  • How can the DA argue that the evidence gathers using this incorrect assessment of the statutes/elements would reasonably formulate a basis to decline a case?

  • How can the DA argue that there has been an adequate review of the evidence given the legal architecture to assess that evidence is not consistent with public policy?

  • How can the DA argue that the method of gathering, reviewing, and comparing evidence to the elements into he hate crimes statutes is legally sound?

  • How can the DA argue that the basis of determining "sufficiency of evidence" was appropriate, given the apparent disconnect between what the statutes say and what the DA has publicly asserted as the basis for a hate crime?

    What we do know, is that criterion 3 [identification] is possible as the students have come forward. In fact, the DA reportedly has stated that his personnel interviewed the students.

    However, we run into a problem with criterion 4. There is no reason to believe that the DA would, after incorrectly stating the "intent" requirement that they would be able to credibly argue they have carefully reviewed the evidence relative to the statute in order to make an assessment over the probability of success in prosecution.

    In other words, if the DA is using the "wrong" elements and caselaw to assess what constitutes as hate crime, then we would reasonably assume that the prosecutor would consider the probability of conviction in a light most favorable to the defendant, not the interests of justice.

    More over, we make no finding of fact nor opine on whether the DA has fallen well below the requisite standard of conduct expected of someone licensed to practice law or form legal opinions. Rather, this comparison between the four standards and the DA's public statements suggests a wide divergence. Grand Canyon-wide.

    However, why stop there? One of the nice things about being a public defender is that you have many friends around the country who are in the same position. They have prosecutor associations. One is the CA district attorney's association.

    Recall that the state has already recognized the LA DA has doing a superb job. Does this mean that other district attorneys across the state that are similarly recognized as doing "super" are also suffering from the LA DA's apparent problem: Statutes say one thing, but public statements say another; that in house DA training and guides are one thing, but outside counsel is putting pressure to do something else?

    If the LA DA is performing at such a "high level" that he would apparently misstate the statute, but still get recognized, what is to be said of those prosecutors who got to the same conferences, rely on the same outside counsel, and use the same prosecutors' guides? A reasonable person might come to the conclusion that the problem is not isolated: That the statutes are one thing, but what the prosecutors are actually doing is something else; that the rules are one thing, but the basis for declining the case is something else.

    This is not simply a DA problem. Because as law enforcement learns more about the DA, they will make up stories to "sell the declination decision" to the public. In other words, if LAPD "knows" that the DA is likely to decline the case, it is not unreasonable to expect law enforcement on the street to mislead the public over the reason for not taking a report.

  • Why would LAPD bother giving accurate information when that doesn't make the DA look good?

  • Who in the public would know enough to challenge the LAPD when they are stating, "This isn't a crime" as an excuse not to take a complaint?

  • Does anyone know enough about the DoJ OPR to go above the FBI and file a complaint with their Congressmen so that pressure is put on DoJ's Congressional Liaison office to look into the DoJ OPR and FBI's concurrence not to look into allegations of local law enforcement ignoring reasonable public complaints?

    The public has the clearly established right to bring complaints before law enforcement. Whether law enforcement investigates is a different matter. But I find it troubling that despite the many statutes, guides, and notes that support the network to prosecute hate cries, that there might be some incentive for law enforcement to mislead the public over the decision to not take a report.

    The declination decision belongs to the attorney, not to LAPD. In theory, LAPD is supposed to take the information, investigate, and turn the information over to the DA. However, if the DA is getting incorrect legal advice or misstating the statute, then even if there were an actual threat made constituting a hate crime, it is not unreasonable to assume that the LAPD, given this course of conduct form the DA office, would simply continue to not bother looking into the situation.

    Indeed, it is the DA's office that creates the checklists the LAPD uses for investigation. This is to say that if the DA's getting it wrong, would we not assume that the checklists LAPD is using are also problematic?
    QUOTE: The Los Angeles County District Attorney's Office has designed field identification cards, which are similar to gang identification cards, for police officers to use as a checklist when responding to possible bias-motivated crimes.ENDQUOTE
    Yet we can only wonder:

  • Who is assigned to the investigation after DoJ and FBI are brought in? LAPD, using the same checklists which the DA generated:

  • Is there a problem with the checklists;

  • if the DA can't get it right, why expect the LAPD to get it right; or conversely,

  • are the checklists which the LAPD uses correct, and not consistent with what the DA publicly stated?

    Let's take a look at another training course the LA DA may have attended. One is the Trial Advocacy Course. In theory, the DA goes to these courses as part of the annual Continuing Professional Education. This is a requirement under the ABA rules that all attorneys go to classes to remain fresh.

    Let's suppose the DA attended the above course. Further, let's suppose that the DA has been clearly told by the State AG on what constitutes a hate crime; the DA has had personnel on the State Commission on hate crimes; and the DA is fully aware of what's on the website.

    Would it be reasonable to expect that the DA would then enter this training with some sort of perception of 'what constitutes a hate crime' and "how can I apply this information I'm getting today to my work as a DA?"

    one would think that going to a class would translate into some sort of improvement. Again, the information before us is that the DA clearly knew in 2000, 2001, and 2004 that the hate crimes involved threats of force, not just the intent.

    So would not reasonably conclude that the DA, while attending these courses on trial advocacy would be thinking, "OK, there's something on my website about elements, I need to make sure that when I'm arguing this case, that my arguments are consistent with the statutes and rules of evidence."

    However, all that seems to go out the window. Because the DA then turns around and publicly says something that is opposite what is on his own website. Are we to believe that the DA's attendance at these CPE courses have been for naught; has the money spent on travel and hotels been a waste; has the DA essentially attended the course to catch up with old friends and didn't translate the lessons into actual results?

    We can only speculate. But from this vantage point, on the other side of the great divide between what the DA said and what is on the DA's website, it appears as though the DA might be in a different universe. We can only speculate how he arrived there; who he is with; or whether other attorneys are apparently tele-transported into this alternate universe.

    However, it is at this juncture, where the CDAA should be able to right the scales, and bring the potentially wayward counsel back from the edge, and into the current reality. Yet, on that count, it appears as though the DA's association has failed him. Where is the assistance; where is the guidance; where is the support?

    Despite all the training and statutes and information on the website, despite all the assistance from schools and associations, the DA's public statements were still apparently wrong. CDAA even has an ethics committee that one might reasonably expect to assist the DA in comparing these standards ["PROSECUTOR'S LEGAL AND ETHICAL OBLIGATIONS"] into effective action:

  • Credible public statements on the statutes;

  • Legally sound assertions of the elements of a crime; and

  • A firm foundation for ones assertions of whether the declination was appropriate.

    Once again, it looks as though CDAA either failed the LA DA, or the DA was not able to translate the "lessons learned" into a well couched argument. And we pay the LA DA how much money to compare public policy and evidence? Surely, there is something that would explain how so many could attend so many conferences, yet at the critical time that our student turns to the DA for help, suddenly the legal network scatters like lobbyists at an FBI inquiry.

    Recall, something like this doesn't appear in a vacuum. Who do you think was one of the principal people going before the Senate Judiciary Committee to argue about hate crimes? That's right: Gennaco who's facing some interesting questions over at the jail about unusual prison murders. Gennacco is a former US Attorney, eligible to join the Association of former US Attorneys. Are we saying that despite the potential access to this body of knowledge, that the former US Attorney has done nothing to ensure the LA DA has the connections and information need to oversee the jail?

    If the statues are clear, but the DA's are missing it, would we not also presume that someone like Gennaco, who was a former US Attorney, could also suffer from the same problem facing the LA DA?

    In other words, if despite the many public statutes and guides about hate crimes the LA DA apparently messes it up, why would we think that someone in a lower position at the Jail would perform better.

    Recall that in the Federalist Papers, the argument for giving Judges a lifetime appointment was not simply that they would be free from legislative and executive intrusion, but so that they could apply their lifelong legal insight to ensure that the best qualified are making decisions. Key concept: Apply the legal insight. What's getting in the way of the LA DA applying this information?

    Answer: The DA isn't a judge. He's a political animal, not a creature of the judicial branch, but from the legal community. That's why this case is important. Not simply from a public policy perspective, but to understand to what extent the prosecutors and staff in the LA County jail are diverging from the statutory requirements; or failing to ensure that proper legal standards are applied when reviewing cases prior to presenting them to the court.

    If the LA DA's got a problem, what's preventing the Jail personnel from getting the requisite oversight. If someone else is capable of doing what the LA DA appears to find difficult, why are they not they LA DA? Conversely, if the reason that the LA DA is "the best qualified" is that, in fact, despite the inconsistency between statutes and words, that he is the best qualified, we can only wonder whether the LA DA's office has the taken to adequately investigate the misconduct of other prosecutors. We have two possibilities, but not both. Either:

  • the LA DA's office has the talent and there should be a consistency between public statements and actions; or

  • the LA DA's office can't do the job and the entire prosecutor-oversight-task-force system is defective.

    Which is it?

    But we don't need to wait for answer. We can turn to the National Center for Prosecution Ethics [NCPE] to assist us with these questions. The Center would be in a lovely position to guide the various litigants into what training the LA DA attended; who else was in attendance; and whether there are similar problems in other jurisdictions.

    Said another way, it seems absurd that local money is spent on training, attending courses, and sponsoring national centers that the local DA doesn't appear to use, rely on, or consult at the "hour of need."

    What happened in the case of the Caplin situation: Did the LA DA suddenly go blank on the NCPE; was NCPE conveniently "off the radar" like the Japanese zeros and 9-11 aircraft heading toward their targets?

    Here's the clue: If you go to a conference, or you attend a course, or you are a licensed attorney but you fail to use the resources at hand, nobody really has much time and patience to listen to your excuses. Conversely, if you're going before the public saying that "term limits aren't needed because we have the right people in place," I'm not persuaded that you are the right person. Nor do I really believe, despite all the whining about the budget cuts and personnel turnover, that your office is so messed up because of a funding problem.

    On the contrary, this is a leadership and management problem. But who suffers? Self evidently, at the moment of choice when the public most needs the LA DA to apply the "lessons learned" from the NCPE, the DA can reasonably be expected to do the thing most opposite.

    How can we explain this? How does a single DA, despite all this momentum going toward imposing consequences for making threats of death, do the opposite and say, "Hay, those kids said they didn't mean it. Ha! Ha!"

    Kind of like saying about those torture photos and interrogations that the FBI personnel were at in Guantanamo: "After we reviewed everything and talked to the witnesses [who were dead] we didn't find anyone who would admit to anything. So there's no crime. And we shouldn't be under the ICC because they decline the right to jury, even though that's what we want to do under the Patriot Act.'

    Hay! Mr. DA! This doesn't add up. None of this. If, despite all these conferences and memos and guides you can't get it right, but still get accolades for being a "nice doggy" who are you kidding? Is someone so terrorized by your arrogance that if they dare speak the truth that you might unleash retribution on them?

    Tell us:

  • What is your relationship with the White House?

  • How much money did the White House give you directly or indirectly through the RNC?

  • Have you been promised a judicial bench position on a federal district court if you could make this Harvard Westlake mess go away?

  • When you appointed Maria to the Judicial Witness protection study, was there any undue influence on you as the DA to put this person on the board?

  • How much money have the law firms which provide you direct legal assistance and private consultation given to the White House in the form of political contributions?

  • How much money have law firms that provided funding for your campaigns been given a cut of the oil-for-food profits in Iraq?

  • Why does the Energy Community and law firms associated with the energy community have such an unusual interest in this case?

    But let's come back to the instant case:

  • Did the LA DA Actually go to the DA College?

  • Did the LA DA or anyone else from the DA's office attend any courses about hate crimes?

  • Were courses offered in hate crimes?

  • Do the LA DA manuals and procedures suggest that there have been cross talks with graduates and instructions at the LA DA college in re hate crimes?

    We don't even have to dig very far. Guess what happened the week prior to the Caplin case being filed? That's right: On Thursday, April 14, 2005, there was the National Prosecution Ethics Symposium, in Charleston, South Carolina.

  • Did the LA DA Attend in 2004 or 2005; if not, which representative from the LA DA's office charged money to a travel order to attend the conference, and where are copies from the trip report?

  • What method was used to translate the "lessons learned" from the conference into feedback for the LA DA on "what was supposed to be done" in re Hate Crimes?

  • Were there any mentoring programs or agreements to do informal reviews across the various DA are to ensure that their public information was consistent with statutes?

  • What types of guides and training were offered to ensure that the DA's public statements were consistent with public statute; and that the case management practices in force were consistent with both public policy and the procedures outlined in the prosecutor's signed policy statements?

  • The Hate Crimes Guide

    The Guide goes into great detail of internet related crimes. 9/63:
    QUOTE Latino faculty members of California State University at Los Angeles received emailed threats against Latinos as did 25 Latino students at the Massachusetts Institute of Technology . . .ENDQUOTE
    If you do a keyword ["kw"] search on this adobe document with "internet," you'll find a number of other references and anecdotes related to e-mail and the internet.

    Also, this case shows how serious internet/e-mail related threats are supposed to be taken. As you can see, there's nothing that requires the assailant to actually be in the same room. Indeed, US Attorney Nora A. Manella said "a death threat is no joke . . ."

    Also, on page 30 of 63 in adobe the guide goes into detailed discussion of the criteria to be used to decline a case. Nowhere is there anything about intent. Rather, the criteria simply focus on whether the evidence supports the elements.

    Again, the guide is designed for a national audience. But it is telling that the DA's office knew enough to have personnel assigned to this unit, was involved in crafting the guide, and was competent enough to ensure that the anecdotes related to other states illustrate the relevant points: That the DA's office needs to have standards in place. A plain reading of the DA's website and the other guidance the LA DA signed suggests that the guide was useful.

    However, if you review the guide and do a key word search using "Los Angeles" you'll see a number of illustrative anecdotes. In other words, even if the DA's Office argues that the guide is "just general," the DA is at a loss as to explain why this "general guide" illustrates the procedures within the LA DA's office as a "model".

    In other words, it is absurd to suggest that the DA's office "wasn't aware" of the guide as the DA had someone from their own office drafting the guide; and the guide would reasonably generate enough interest within the criminal justice system to prompt reviews. If there were problems, the state level audits would have found problems. But the opposite is true; the state level audits of the LA DA's office found the DA performing very well.

    To further drive home the point on the elements, the guide on page 30 also states,
    QUOTE Did the offender(s) use words, symbols, or acts that are or may be offensive to an identifiable group?ENDQUOTE
    Again, there is nothing here that mentions intent, nor does the guide say that words alone are not hate crimes. The guide suggests the opposite: That the words were communicated; and that they were offensive to an identifiable group. Using this broader definition of hate crimes, the guide has a much lower threshold. In other words, the cause of action and basis for prosecution isn't simply that a single plaintiff need to prove that the words were threatening, only that the words more generally were offensive to some nebulous group.

    Although this is a far easier standard to meet for purposes of evaluating the appropriateness of the DA's actions, it doesn't do much to actually pin any liability. Rather, the statutes in this case are not mentioned; and the problem with this guide is it is just that: A guide, and it is vague. The defense would likely argue that this is "nothing that is a requirement."

    Brilliant, why is the DA spending money sending personnel to write guides that are not useful; and contain language that is consistent with the statutes; but then the DA issues public statements that are both contrary to statute and the guide? It makes no sense for the DA to complain to the board of supervisors that he is "short of money for personnel" when those personnel, if they use the guide, are then ignored using some equally amorphous criteria that are equally contrary to public policy.

    But why stop there? In the guide there's also a special section that gives San Diego as a case study. Are we to believe that the legal community within the same state has the talent to translate national lessons into local guidance for San Diego; but doesn't have the ability to translate a framework from San Diego to Los Angeles?

    Oh, come now! Surely, the legal community doesn't think the public is that stupid. How much money do these private contractors get to create these guides; and how many times do these law firms lecture the municipalities and government institutions on tips related to checklists and ensuring local precursors are consistent with the statute?

  • Other guides

    There are two other guides which remain interesting documents to review:

    - Los Angeles County District Attorney's Crime Charging Policy

    - District Attorney's Legal Policies Manual

    These will be important to assess to what extent, if any, the DA was aware of the hate Crimes standards; to what extent, if any, he was negligent in ensuring that the statutes accurately were incorporated into various manuals; and to what extent, if any, personnel who created these manuals used the requisite legal experience to translate public policy into substantive guidance for public officials.

    This will be important in assess whether historical contract award fees paid, if any, were appropriate; or whether there remains a basis for another cause of action in re allegations of legal malpractice by third parties or outside counsel providing indirect or direct assistance to the LA DA's office.

  • The State review of LA DA Office

    The State AG gave accolades to Cooley.

  • The State commission report

    The State report outlines the standards.
    Attorney General's
    Civil Rights Commission on Hate CrimesRef

  • Prosecutors Conference on Hate Crimes

    The 2000 conference restated the definition of hate crime and showcased the hate crimes database.

  • Is information that "should be" in the database not getting in there?

  • If the DA is misstating the "definition of a hate crime" why would we believe that the audits of that information are credible?

  • What method is used to ensure that the legal definitions in SB 1234 are consistent with the data reporting provided by law enforcement and persecutors?

  • Networks to combat Hate Crimes

    Many public institutions are involved in combating hate crimes. LA DA office is part of the larger network of public outreach programs.

    The LA County Human Relations Commission mentioned this network. Part of the "network" also included guidance for schools in creating effective programs to combat hate crimes. We remain puzzled why such a program under the DA, LAPD and Harvard Westlake wasn't given much attention.

    The network also includes victime assistance which the DA touted as being a model program. Again, where was this 'assistance" in Harvard Westlake? The only 'assistance" we see is a maze; sending the parents on a wild goose chase; creating barriers to enforcement.

    But let's put aside for the moment that the DA apparently completely botched this case, misstated the statute [for whatever reason]. One of the objectives of the "network" is to impose discipline:
    QUOTE For Los Angeles City Attorney cases: when cases do not support a hate crime filing, the parties involved are often brought into special hearings, where parties are lectured on the law and its consequences. Violators may be sent to educational programs to gain greater understanding of the harm, history, and impact of discriminatory ideology and movements.ENDQUOTE
    Again, putting aside the alleged conspiracy to deprive Caplin's son of his constitutionally protected rights, why weren't the students at Harvard Westlake given a stern lecture, as is supposedly done in LA City? We see no evidence that this was done; nor that the Caplins were involved in this decision; nor were they afforded this as an "appropriate" settlement.

    On the contrary, all the evidence we see is the heralded "network" appears to be nothing more than an abuse-protection racket. More outrageous, this network appears to be designed to be a communication link to let other parties know that there's a potential lawsuit, shifting the needed spotlight from the conduct to the liability risk for bond issues.

  • What kind of pressure is exerted on "knowledgeable informants and victims" using this network?

  • Once law enforcement, the prosecutors, or management get "signaling words" that there is a potential litigation issue, to what extent is this "network" used to document the facts related to potentially threatening people to both law enforcement and the DA?

  • Are the law enforcement intelligence databases used to store information about victims that might be a litigation risk?

  • Is the information within the law enforcement intelligence database used to track, monitor, harass, and otherwise dissuade victims form bringing litigation issues to the attention of either civil attorney and or federal law enforcement?

  • To what extent is the information contained in these law enforcement intelligence databases used to spread rumors, innuendo, or otherwise disparaging information about victims so that other perpetrators can target the accuser and put the potential litigant in a worse position?

  • Does law enforcement use intelligence databases about victims [who might become potential adverse litigants in a 42 USC 1983 claim] to spread incorrect information about a victim-target so as to stir up a third party and impose retribution fro reporting the crime?

  • To what extent does the LAPD and or Sheriffs department use "lessons learned about prisoner management [spreading rumors about a prisoner to get them to attack and 'uncooperative inmate'] so that law enforcement can mitigate the risk of legal consequences for actions that would otherwise prompt a valid 42 USC 1983 claim and or notification to DoJ OPR?

  • How is the "network" used to state one story to the victims, all the while turning around and gathering evidence, not about the crime, but about the victim so that they can be targeted by people not directly related to either the DAs office, Harvard Westlake management, or the primary actors?

    It would be a real shame to find out that the "network" does nothing but the opposite of what is led to believe.

    yet, we find it curious that, despite the DA apparently missing the point on hate crimes, the LAPD still has the "right cards from the DA's office" to investigate the case; this raises the real prospect that the LAPD knew what is was supposed to be doing, but was shut down for something unrelated to a reasonable and ethical declination decision.

    IN fact, the manual also lays out an example of the DA in LA City giving a stern lecture to someone who, although not prosecuted, was essentially being an evil person.

    There is something called the DA Child Protection Association.

  • What happened with this?

  • Did the DA not understand the significance of the association?

  • Was feedback not translated into effective policies in re hate crimes?

  • SB1234

    This bill restated the definition which was on the DA's website: Threat of violence. SB 1234 imposes on POST a duty to train law enforcement in re Hate Crimes.

    Once the DA refused to prosecute and declined using what appears to be non-sense criteria, what efforts, if any, did LAPD and or Harvard Westlake management make/do/engage to ensure that either the FBI, US Attorney, or the DoJ OPR was aware of the situation?

    It was well known that schools do not like adverse publicity. See page of 46. To what extent were the known factors and requirements in SB1234 ignored simply because Harvard Westlake, like most schools, simply didnÂ’t want the bad publicity?

    Despite SB1234 which was passed after this finding, what effort was there made to say: "We know there is an adverse publicity risk, but the state code says we have to act. We need to act."

    But they didn't do that. Rather, despite this guidance we see that private litigants must bring their concerns to the court. This is absurd. The school had enough notice, enough assistance.

    This guide [on page 40 of 46, item 4] gives a specific example of the torment that a student is told to 'put up with." that's not different than what happened at Harvard Westlake: "Just put up with being threatened with death. It's just a late night rumpus. Don't look behind the curtain Toto, ignore those photos of the dead detainees at Abu Ghraib and Guantanamo. They're just a few rotten apples. But whatever you do, don't ask us about the photos. We can't release them, because uh. . . they're not related . . . yeah!"

    I see the opposite. That, despite the risk of adverse publicity and the existing hate crimes statute, Harvard Westlake ignored not only the "lesson about schools getting into more trouble if they suppress the problem over fear of adverse publicity," but they went out of their way to take no action despite the recent passage of SB1234.

    Just as the DA has a problem with the "overwhelming momentum of guidance and information going in one direction, but the DA chose apparently to do the opposite," we wonder what could have prompted Harvard Westlake to act more like a Salmon swimming up the Niagara Falls.

    Clearly, despite the overwhelming odds, many people thought they could get away with this. To wit, we can only speculate "how many other victims" have been silenced?

    Let's take a look at a map of the number of hate crimes here: I see no invisible barrier around Harvard Westlake; nor do I see a sign that says, "You are only going to get help in certain areas."

    No! The statutes apply equally to all, not to some. Although The President may live in a fantasy worlds and suggest that the rule of law does not apply in the White House or Guantanamo, that argument is not all the persuasive.

    The Federalist Papers were clear:
    QUOTE: But in regard to the
    interfering acts of a superior and subordinate authority, of an original and derivative power, the nature and reason of the thing indicate the converse of that rule as proper to be followed. They teach us that the prior act of a superior ought to be preferred to the subsequent act of an inferior and subordinate authority; and that accordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.UNDQUOTE

    This imposes a duty on the agent to conduct its affairs in a manner consistent with the rule of law. not the other way around.

    it is not appropriate for the DA to lecture anyone to go on a wild goose chase to personally inform LAPD of the "right way" to do things. It is not the job of the victims to both recover from the abuse, then to know the statutes well enough, and better than the oppressors, in order to bring a cause of action against the very agents who swore an oath to uphold both the Constitution and the law of the land.

    But we, self-evidently, require victims to know the statutes better than both law enforcement, and the prosecutors. So that the victims would not only be smart enough to recognize the initial danger, but to recognize in the early stages that the very system designed to "assist them" is engaged in a collective agreement to do nothing.

    That is not justice. That is opposite everything this nation stands for. And it is that arrogant "we will do what we like when the weather is fine" is the same arrogant attitude which was the catalyst for the 1776 battles.

    That war was already waged and won. And it is outrageous that a student attending a private school is required to remount to undisciplined horse called the public prosecutor and ride that animal into the ground until the prosecutor yields to the law of the land.

    That is not justice! That is nothing short of the very arrogance our enemies use as the fuel to which they gleefully hunt down American fighting men on the battlefields around the globe.

    Are we asking that our children now take up arms against the very "defenders" of the system that is "sworn" to uphold their rights?

    Of course not, as the only lawful "next remedy" if for a civil suit to be brought.

    Translation: I grow tired when the very arrogant in the District Attorney's office who didn't do their job, have the gall to suggest that "this could have been handled" or "the victim doesnÂ’t understand" or "that's not how we do things here."

    Wrong! This is the United States. Under One Constitution. We have federal laws. And all judicial officers, including district attorneys take an oath to that one constitution. It is not something you get to cherry pick like evidence about WMD evidence.

    Citizens! The arrogance this District Attorney has shown toward the law, and the contempt he shows the victim is of little consequence when we think of the outrageous abuse which the student initially suffered.

    yet, all this Attorney has done is simply ground the victim's nose into the ground and forced the victim to submit to arbitrary power.

    That is repulsive. For it is this arbitrary and amorphous exercise of authority which was so abhorrent that it was the catalyst for the Declaration of Independence:
    QUOTE: Arbitrary impeachments, arbitrary methods of prosecuting pretended offenses, and arbitrary punishments upon arbitrary convictions, have ever appeared to me to be the great engines of judicial despotism; and these have all relation to criminal proceedings. The trial by jury in criminal cases, aided by the habeas corpus act, seems therefore to be alone concerned in the question. And both of these are provided for, in the most ample
    manner, in the plan of the convention. Federalist 83ENDQUOTE
    That's what we have in the LA DA's office. Despite clear statutes, clear guides, clear statements on his own website, what did the LA DA say?

    He made up some non-sense about "they didn't intended to do it" as the excuse to do nothing.

    That is arbitrary. That is not consistent with the statutes. That is not consistent with his own website. Nor is it consistent with his signed policy memo.

    To what do we deserve this honor of being force-fed a diet of arbitrary decisions? Please, inform the audience, Mr. Cooley. We eagerly await your lovely excuse. Can you say anything that might educate us.

    Are you that unhappy with your job that you delight in making the victims' ordeal that much more painful?

    We can only speculate the non-sense spewing forth from your drooling, unkempt mouth to your staff over this one. Yet, the record is clear. Your staff is leaving. not simply because of budget cuts. But because you have, in my PERSONAL OPINION, an idiot to work for.

    In MY PERSONAL OPINION, completely incompetent. Clear statutes on your own site that you signed, but what do you say? You say the opposite. That is not a management problem. That is a simple problem of "failing to read your own website."

    Cooley, in my PERSONAL OPINION, you're an idiot. And anyone that hires you should know, in MY PERSONAL OPINION: You have a reading problem. You have a problem understanding things that you sign. You say things that are not consistent with your own signature.

    That's not the victimÂ’s problem. But because you donÂ’t know what's on your own website, the world suffers: We are forced to actually give you, as a District Attorney, something called "consideration."

    Not anymore. In my PERSONAL OPINION:

  • You have no credibility;
  • You have lost all reason for me to even believe one word coming out of your mouth;
  • You freely chose to take your oath but you are unable to do what is needed to lead or fulfill those duties;
  • You freely chose to talk about oversight but you ignore it; and
  • You freely chose to talk about integrity but do something else.

    And what do we have? Clearly, guides ignored. Your staff ignored. Inputs from your own website, apparently set aside.

    Citizens! Beware the Los Angeles County. They hire attorneys who write and sign things, but then they selectively ignore.

    If you want to live in a place where people say one thing, but do something else: Feel free to move to Iraq. And take Cooley with you.

  • Federal Statutes

    Federal Statutes under title 18 also are consistent with the DA's website and the factors in the Prosecutor's guide.

    18 USC 241 permits a cause of action for threatening to use force [Check COUNT ONE, "by threatening to use force"] and the jury instructions. Based on a quick review of the above links, it seems beyond a reasonable doubt in my mind that Cooley is, in my PERSONAL OPINION, an idiot.

    Why don't you go look at some more torture photos of the prisoner in Guantanamo and maybe you'll feel better about yourself Cooley, "Hay, at least I don't suck as bad as those Americans who bought people in Pakistan."

    One cause of action is for a failure of the District Attorney to take action. This falls under 44B matters:
    Failure of any public official to take official action. This involves cases in which a public official, who is a witness to, or cognizant of, a deprivation of civil rights of an individual, such as an assault upon that individual, fails to take appropriate action to protect that individual's person or rights.

    We can only wonder, in light of the cursory review of the publicly available information, the vast body of information available to the FBI, US Attorney, and independent investigators in re the entire disaster called the LA DA-Harvard Westlake cess pool.

    To think you actually thought you would make it up the Niagara falls. You are fools!

    18 USC 241: Oppression to deny rights. How many people are sitting around hoping "nobody knows" about this?

    Here's a hint: The entire world now has a reasonable basis to question whether your brains are connected to your bodies. Moreover, with nonsense like this, why would anyone want to do business in a country where it is a matter of conjecture whether the laws will be applied, enforced, followed, or adhered to.

    Please, give us one reason why money should be exposed to the cess pool called the American capital market. Their legal "experts" give excuses. Their own "experts" sign things, but what they say is something else.

    I'm still waiting for one reason to believe that Americans or the "legal profession" is a reliable counter party. Give me one reason. Just one!

    They have Institutes that don't ensure that the "lessons learned" bout hate crimes translate into results. That's not a "reason," but another excuse. Here are 1,500 reasons why I think Cooley deserves to lose the next election:

  • He has plenty of guidance;

  • The excuses of "budget cuts" is an illusion;

  • Despite his own signature on these documents, the Institute still publishes more information which the DA apparently misses;

    In my opinion, Cooley deserves to be replaced by someone who can simply: read, listen, follow directions, and use the existing resources.

    We grow tired hearing more excuses about the "Cut in staff". Hay! That "cut in staff" didn't stop your office form assigning someone to the Hate Crime's Commission; the "cuts in staff' didn't stop your office from assigning someone to the Hate Crime's Guide -writing activity.

    The "cut in budget" didn't stop people from picking up the phone, reading your own signed policy memo, and didn't stop anyone in your office from reading your own website.

    And the "cut in staff" didn't stop anyone from consulting with either the Guides, statutes, State AG or "someone else" like a mentor or in another jurisdiction. Even if you were hand-fed the statutes [which you were, as evidenced by your signing those statements], you still wouldn't get it right.

    Self-evidently, you state what is not consistent with your own legal training, signed memos, and vast body of tools and resources at your disposal. Those were still there despite the budget cuts, but you freely chose to ignore them.

  • DA Personnel assigned to CA State Commission on Hate Crimes

    The DA had personnel assigned to the state commission on hate crimes.
    Ann H. Park
    Deputy District Attorney
    Los Angeles County District
    AttorneyÂ’s Office

  • DA personnel assigned to write the Prosecutors Guide on Hate Crimes

    The DA's office had personnel assigned, and were recognized nationally for their contributions to the Guide on Hate Crimes.
    QUOTE: Carla Arranaga, Deputy District Attorney, Hate Crimes Suppression Unit, Los
    Angeles County District AttorneyÂ’s Office, California;ENDQUOTE

    Arranga was recognized as being a lead trainer in re hate Crimes. Carla Arranga is also on the Wiesenthal Center advisory counsel for hate crimes. Guess who gives grants? Check Item 42: Harvard Westlake, $2.3M! and item 39: Simon Wiesenthal Center: $2.4M.

    Arranga also spoke at the UN Commission on Human Rights, self-evidently an expert on hate crimes and has international recognition and standing.

    Recall also that in 1999 there was other hate crimes guidance for policy makers. It wasn't as though this issue was isolated to a small corner of a town in Los Angeles. This was a national and federal issue.

  • Why wasn't the guide that she helped write consulted?

  • Are we to say that, despite the President's choice to have her speak before the UN, that she somehow isn't "qualified enough" to provide inputs to the LA DA office in re hate crimes?

  • Or is the excuse that she never worked for the UN and somehow snuck into the Italian Embassy and "nobody" gave her permission?

    For if this is the case, the problem isn't that we have AlQueda running around, but that we have open embassies and even people who are "not qualified" gaining full access to the building, and nobody realizes what's happened until 2005. Five years for the scandal to be uncovered! How can the country operate with such a security lapse, Mr. District Attorney?

    If this is the convoluted logic we are asked to believe, I sense Mr. Libby, Andrew Card, and Karl Rove are near. Surely, no one is going to suggest that the "missing Iraqi WMD" is in the Italian Embassy, using the same route that Carla used!

  • State audits of the training programs

    This document merely illustrates that state level reviews are conducted on various prosecutor programs. As you review the document generalize the findings and walk away with the following:

  • That Prosecutors are given assistance in creating training programs

  • Prosecutors are given guidance and resources to ensure that trainers are appropriately trained.

  • The DA Has the ability to attend CEP courses designed to bring to the DA's attention the importance of "training the trainer".

    It remains a matter of fact as to whether the DA attended these courses; what information the DA then applied from these courses; or whether the DA used what a reasonable attorney in a similar situation would do in ensuring that these lessons learned were translated into plans; or to what extent, if any, the DA negligently failed to ensure that these lessons learned did not act as a catalyst for needed oversight of the DA's trainers who were developing training programs for investigators and community outreach personnel.

    Also, this document merely illustrates how CDAA grants are reviewed. Notice that there are personnel who review how the funding is used; whether the funding is used for a useful purpose; and there are subsequent reviews of the programs to ensure that the program objectives are getting met.

    It remains a question of fact as to whether similar reviews were done at the DA's office; whether there were adequate reviews of these programs; and whether the program findings were appropriately reported to the DA; and whether the DA appropriately acted after receiving this feedback and information from the grants feedback.

    It remains a matter of law whether the DA was required to translate specific findings into specific programs; or whether the DA applied the appropriate legal expertise to properly ensure this feedback translated into effective programs. One standard is one for the voters to decide: Whether the DA is an effective manager; the second standard, and far higher standard, is whether the DA was negligent in applying his professional legal experience and education; and whether the acted when he should have acted.


    We are not persuaded that the District Attorney did not have the requisite staff, talent, resources, or funding to cover this requirement.

    The record is clear that Cooley, despite the manning shortages, still was sufficiently competent in his job to create task forces, continue to perform well, and still had access to both information technology guides that would assist him.

    On all counts, it appears as though despite the plethora of clearly promulgated guidelines and his own statements, Cooley made a decision hat was contrary to public policy. Is this the case?

    It is unfortunate that, despite the time, resources, and attention given to hate crimes, that the requisite talent was not dovetailed at this decision.

    It is unfortunate, that despite the many public concerns about Hate crimes, that at the critical moment when a credible decision was needed, it appears as though the DA made a decision contrary to his own policies.

    It is more troubling that the public would have to know the statutes better than the DA in order to know that, despite public statements suggesting assistance was forthcoming, that the declined assistance was possibly not consistent with public policy. This does not inspire confidence in the District Attorney.

    Going forward

    It remains a matter of law whether the decision was a simple oversight, or was this pure negligence and failure to act; or was something driving the DA to make a decision contrary to public policy.


    I see no evidence that Cooley's policies were inconsistent with either state law or federal statutes. The DA had the requisite talent, guides, information technology to assist him.

    Despite the funding shortfalls, Cooley was recognized for an outstanding hate crimes program.

    There is nothing before us to suggest the DA didn't know the statutes; or that he was not trained; or lacked the requisite management, oversight, attention, or assistance needed to appropriately apply the law to the situation at hand.

    The inconsistency is between Cooley's public statements and his own guides and information contained on his own website.

    On one hand we have clearly promulgated and signed policies; and on the other we have statements that do not correctly state what is on Cooley's own website or in his own information.

    Perhaps we are missing something obvious. We look forward to hearing more of the District Attorney's explanations for the apparent disconnect.


  • How much feedback has the LA Board of Supervisors been given on Cooley?

    Links of interest

    Discussion of problems with ethics in the DA's office: Staff turnover, political campaign funding issues. Gives a good overview of the political culture inside the LA DA's office.

    Sample Hate Crimes Bills

    Bill lookup

    All been signed by CA Gov. Schwarzenegger:

    AB 2428
    Sponsor: Chu
    Protections Against Hate Crimes

    AB 2288
    Sponsor: Pacheco
    Protections Against Hate Crimes

    SB 1234
    Sponsor: Kuehl
    Protections Against Hate

    DA Investigators

    Many investigators are in the LA DA office. Are they all clear on the statutes in re hate crimes but are told things by the DA that are not consistent with those statutes?

    Broader discussion of concerns

    I thought I'd summarize the above findings by reviewing what I believe are the essential problems with the issues, not simply the DA's decision to decline to prosecute.

    I'm struck by the willingness the DA has to establishing task forces to look into the witness protection program. Yet, I'm also struck by the equally moving and voluminous paperwork devoted to the hate crimes.

    Yet, after reviewing the many documents related to hate crimes, I'm left wondering: Why is there apparently a greater interesting in looking into issues related to the criminal-witnesses, but we don't appear to have the same kind of interest in the hate crimes area.

    This isn't to say that there have been no task forces. On the contrary, the links above show there's been alot of work. But what puzzles me is, if one were the DA and charging a task force to look into issues and getting accolades for great progress in combating hate crimes, how do we explain the disconnect: Between what was publicly stated as being important, versus what actually happens.

    By way of comparison, I am wondering whether there are common problems in terms of internal control problems that were found during the witness protection task force that would be common elements should a similar task force be created to look into the hate crimes issues.

  • Are there internal control problems?

  • Are there common reviews, management audits, and executive oversight issues that are common to both the hate crimes issues and the witness protection programs?

  • How effectively have the hate crimes recommendations [from the many reports] been implemented; and how do these implementation/follow-up/monitoring programs compare with the management systems similarly tracking the witness protection program task force legacy?

    I would tend to favor a broader approach to the issues. Rather than simply look at the hate crimes bungling in isolation, I believe a broader review needs to occur to find out what the common elements, if any, there are across the different functional areas and issue areas.

    As stated earlier, I'm most troubled that the overall momentum and thrust of the hate crimes legislation appears to move in one direction, but the declination decision appears to be wholly at odds with that. I would ask that the board of supervisors explore two possible explanations:

  • To what extent is outside counsel providing legal advice to the DA;

  • To what extent, if any, are there potential conflicts between the advice outside counsel gives to the DA and what information outside counsel may be giving to manipulates in terms of bonding issues.

    It would be a shame to discover that legal advice was indirectly given to the LA DA's office that would tend to favor the municipality or the institution, but do little to address the plaintiff's legitimate concerns.

    I would also hope that there be a better accounting of the inconsistency between what the DA stated in re "intent" and what is actually on the DA-supplied investigation cards given to LAPD. I would hope that there is a good understanding why the DA said what he said; whether the LAPD investigations are adequate; or whether there are other potential issues on a "task force level" that LAPD and DA also exchange checklists, but there are questions about consistency with the statutes.

    From my perspective, LA DA's office has received many accolades and well deserved. Yet, I'm struck that despite the LA DA's office getting mentioned in the various prosecutor guides, that the "model program" in San Diego appears to also suffer the same shortfalls. There is litigation at another high school in San Diego. I wonder out loud: Is there a problem with the "model prosecution guide" that cross more than one boundary?

    In other words, let's put aside the issue of whether the DA's actions were appropriate. Let's focus exclusively on the Prosecutor Guide and ask, "Why is the very county that has a "model program" [San Diego] having a problem with hate crimes? Is the Guide insufficient; or there stronger options and programs needed; does the mentoring and outreach program need to be refined; or is the issue that there are simply so many cases, that one is bound to fall through the crack?

    From my perspective, the public has the following types of questions:

  • What is actually going on in the DA's office?

  • How bad of a situation does a member of the public have to be in before the DA will take action?

  • Does the public have to know the DA's procedures, manuals, ethics, and statutes better than the DA in order to recognize a problem and know enough to then ask for outside legal help?

  • What types of interactions should the public expect with the LAPD given the DA's role in creating the investigation cards; will LAPD make statements to the public that "that is not a crime" in order to avoid opening an investigation into something they believe the DA is likely to decline?

    I'm concerned about that because I would hope that the law enforcement officer on the street is not making declination decisions that are actually the role of the DA to make. Even if a case doesn't go to trial, it is sometimes important simply to put a defendant on notice that the police know, and have on record, the facts related to previous conduct.

    In my view, if the public has to show up to law enforcement with an airtight case, with video, and overwhelming evidence, we don't need the DA. We simply need a rubber stamp at the CNN headline news saying, "We'll pay you this settlement if you do not publicize the crimes we allegedly committed." Private settlements do little to cast the needed sunlight into the inner working of criminal conduct, whether they be street crime, white collar, or allegations of government corruption/negligence or oppression.

    From my perspective it is clear that hate crimes in not a new phenomena. Hate crimes is well understood. The data goes back for many years.

    Neither is the hate crime phenomena so new that the prosecutors are not in a position to understand the phenomena.

    It is also clear to me that hate crimes is well understood in terms of the internet and e-mail. Congress reviewed the matters in 1998. The internet was still unfolding, yet the US Attorney Gennaco at the time made a good showing of the issues.

    In turn, these public discussions translated into some very nice guides and state level commissions. We have the prosecutors guide and the state level commission which helped formulated some broader guidance and catalyst for state legislation.

    Things take time. And the problem with hate crimes is not isolated to some run down neighborhood but cross all geographies in Los Angeles County.

    Hate crimes has been the subject of reports, study, testimony, and legislation.

    Indeed, the LA DA's office was involved in these early effort. The person who had a substantial role in writing the prosecutor’s guide to hate crimes was assigned to the DA's office; was a recognized trainer; here name was mentioned before the Senate Judiciary Committee; and is well known within the criminal justice system and DoJ.

    As I said before, the prosecutors hate crime guide specifically mentions the internet. Despite the staff turnover, the documents remained.

    It seems clear that there has been enough discussion about the definition of hate crimes, and requisite state-level communication so that the DA would have the opportunity to review the statues.

    The DA did, in fact, get recognized for his outstanding progress. It remains unclear whether the DA further supplemented his programs with information from the DA college, DA association, criminal justice association, CA state GA notes, testimony, his own staff inputs, or other internet sources.

    What is clear is that the DA's own website clearly restated the standard of hate crime: That hit is a threat of violence. There may or may not be an overt act. And the issue of "intent" is not mentioned.

    In my universe, there has been ample time since the early 1980s to review hate crimes. There has been legislation. The hate crime manual is understood. And the website seems to be up to date and current.

    Indeed, the DA took steps to review matters.

  • He's conducted studies and initiated task forces

  • He has established special focus groups, support units for children and hate crimes.

    The problem is known. The talent is there. All this despite budget cuts and manning changes.

    Indeed, an audit review of the grants and hate crimes programs confirms that others not only look at the programs, but report back favorable results. The audits are complete. The review of the grants programs discusses training the trainers.

    In 2000 the DA took a oath and spoke of integrity. Integrity isn't simply being honest. It's ensuring that one's actions are consistent with their words, values, standards, and professional duties.

    In my view and pesonal opinion, there is a disconnect between what the DA was required to do and what he actually did; between what he said was his decision and a reasonable reason to decline the case.

    In my view and personal opinion, a reasonable declination decision would revolve around criteria that included statements within the DA's prosecutor ethics framework. I see a disconnect. All four elements simply raise more questions. This is not a sign of a well formulated declination.

    Rather, the declination focused on criteria unrelated to the elements of a hate crime. This suggests that the decision is being sold not as a credible decision, but that for some to-be-understood motivation, the decision was made, but the argument behind that decision didn't add up.

    I can think of no better comparison that the President's decision to go to war, but the evidence wasn't there. in this case, we have the opposite. it appears the DA already made the decision to decline to prosecute; but then was hoping to back into a reasonable justification.

    Small problem. things aren't adding up. I could be persuaded that there's a reasonable explanation. But I haven't heard one yet. Moreover, it's been more than 30 days. What do we have? Silence. Another bad sign. For the disconnect is well known; it is time to have an explanation.

    I see the opposite. I see dust clouds. Wagons. And a group of people circling the wagons. Another bad sign.

    Perhaps the greatest factor going against both the DA and Harvard Westlake is the apparently deepening investigation into the management practices within the DA's office and Harvard Westlake.

    Generally, within a matter of hours after a lawsuit is filed, we would hear some sort of combined, credible statement suggesting that the plaintiff's claims were frivolous. Again, we have the opposite. At best silence, at worst, the murmurings that the cause of action is not only valid but could have grave repercussions for many people.

    What is unfortunate is that as the jockeying continues in the wake of this investigation, it is important to realize who's really borne the brunt of this problem. Self evidently, we have a student who is hopefully making fine progress at his new school.

    I would hope that, regardless the outcome of the FBI and LAPD investigations, that we remember that a young person will forever remember how he was treated. And rightfully so. For the ugly truth is that, despite the training and leadership many speak of, our leaders often times let us down.

    In my personal opinion, that is when new leaders are needed. Sometimes, it takes a rude wake up call to remind people what the rules are, what needs to be done, and how things could be better done.

    Indeed, as the Board of Supervisors looks into this issue, I hope we can at least remember why we are here: Someone threatened someone with death; and many people who were supposed to respond and end that conduct allegedly failed to act.

    We are better than that. Or should be. If we as a people who have freely come together cannot simply 'do what must be done' then who are we to lecture the world about the benefits of democracy; the importance of the "rule of law" or why one way of solving problems is "better than another."

    The eyes of the world are on Los Angeles. Not simply because of a lawsuit against Harvard Westlake. But because the criminal justice system has shown itself to be both flawed and possibly corrupt when it is most needed to be sterling and above reproach.

    We can do better. And we will. But keep in mind the catalyst for change didn't come from within the ranks of the DA's office. Nor did the sound of alarm come from some noble spirit at Harvard Westlake.

    It came from a student. Who knew enough about what was appropriate to say, "That is not right."

    For that, we should applaud him. And for that we should remind ourselves that an educated citizenry is the best check. Not just on leadership, but on ensuring that the citizenry is in fact treated with dignity, respect, and given the support they need when "what needs to be done, is done."

    We are not a nation of individuals mindless floating around. We are people who have freely chosen to cooperate.

    So it is time to ask ourselves, are we willing to cooperate to do what must be done?

    The lawsuit says, "There is a solution." But that solution is many months away. Now is the time to be clear on what we have done to contribute to this problem. What procedures were not followed; what guidance was ignored; and what needed training was not implemented.

    Through discovery we will find these answers. With time, perhaps more will come forward to share their stories. But let us not shirk from the responsibilities we have: To find what is really broken and fix it.

    Those who are in charge will have the responsibility. Either they will change or we fill find new leaders. But the rest of us also have a duty to ensure that what is promised is delivered.

    The same forces which knocked down this student with threats, are still out there promising solutions without any intention of getting this solved. They are willing to give lip service to progress simply with the hopes of making the problem go away.

    Remember, that is why we got into this mess to begin with. "this wasn't supposed to happen" and "make it go away."

    There are more problems still surfacing. And the needed catalyst, the only catalyst, has been a brave student who said enough is enough.

    But that wasn't enough. Now, a lawsuit is filed. And it is fitting. That when all else fails despite the many statutes and guides of 'what to do," that the courts are the remedy to what appears to be something so difficult to do: To do the right thing, to stand bravely when others are under attack, and to stomp down those forces who dare to insult those who are the victims.

    Harvard Westlake and the District Attorney are not the victims. They are merely the targets of needed scrutiny. We leave their reforms to others to manage.

    I would hope that the leadership across the political spectrum use these events as the "fair warning" that things are not OK. There needs to be some understanding why these Herculean efforts were required to get the system to respond.

    It is likely, that unless the Caplins brought this suite, the needed reforms would never be contemplated, merely explained away. Yet, what of the system’s response to others who have raised the concerns?

    Surely, others have noticed the inappropriate responses? We can only wonder how others in the Harvard Westlake Administration have been treated. What is to be said of others in the Criminal justice system who have dared to speak out.

    Indeed, reforms take time. We've seen the Government sign into law new hate crimes bills. Those bills are the fruits of many people, not just those who do the work crafting the language, but also the masses of people who suffered in its absence.

    These are the real people we need to keep in mind. The countless others who saw what was going on who were powerless or didn't get the needed support.

    What I find most curious is that despite the data collection and the many manuals, there doesn't seem to be an independent system that goes into the various governmental and educational facilities to ensure that the "advertised system" that we believe is working is actually translating into measurable improvements in how the students are getting treated.

    Perhaps this is buried in a report. Perhaps this is merely an obvious statute that I didn't happen to read. then again, perhaps this information is the basis to form the prosecutor’s guide.

    Either way, I'm not satisfied that the progress to date is getting the needed catalyst to ensure that the problems are actually solved. That is, unless we have lawsuits.

    On the table, there is potentially $100M at risk of transferring from one party to anther. Is that the amount of money need to be the catalyst for changed?

    That is outrageous. Not that the $100M might actually deservedly go to the Caplins. But that despite the grand statements about hate crimes that the community collectively needs a $100M shot in the arm to wake it up.

    That is what it outrageous. And what do the students have to look forward to? That unless the can have a credible threat of litigation over $100M that their reasonable concerns will not be addressed?

    We're not talking about an isolated problem. But a problem related to civil interaction and discourse.

    What kind of society are we nurturing where someone gleefully writes on their computer that they're going to kill someone?

    More troubling is despite that initial horrendous act, the rest of the system seems to just go along, pretending there's no problem, acting as if the problem is with the one who says what is self-evident: That this conduct needs to end; and the system that failed to end that conduct needs to be fixed.

    Not "whenever," but now.

    Not, "when the weather is fine or cooperative," but now.

    I'm disappointed. For the nation enjoys lecturing the world about "the importance of fighting terrorism" yet at the same time celebrates the fact that its own students engage in the same conduct at home. But not a hand is raised. No lectures. Just an apparent attitude of, "We'll pretend that didn't happen."

    No. We wont forget. For it did happen. And it wasn't isolated. The conduct spread itself over many days. And many were aware but did not effectively intervene.

    One cannot simply draw a line and rewrite history. For it is history that is the catalyst for change and improvement. We cannot forget. Just as the young Caplin will understandably never forget: That he was the real catalyst for improvement.

    The lawsuit will hopefully be a reminder that checks and internal reviews are more than simply looking at numbers. They are making sure that your personnel are trained and ready to go, even when you are not watching.

    That when your personnel are in the field and your law enforcement is getting trained, they are telling the new recruits the correct procedures, not teaching them how to violate rights without getting caught.

    I grow tired and dismayed thinking of the number of Field Training Officers who teach new police officers how to make up stories to avoid getting caught when the engage in pre-textual stops; it pains me to realize that that fresh recruits are quickly trained with this attitude of "we know better" and "we will lie in order to better manage our work."

    That is not appropriate. And it is most injurious to a law enforcement and criminal justice system when, at the times when they think they are not being watched, they get caught. And the solution isn't to fess up and say, "We were wrong, we will change," but to then shift attention onto those who raise the alarm.

    That is what is most outrageous. And that is a sign of more than a leadership problem. It is a symptom of a cancer. One that says, "We are above the law; we write the rules; and we can do what we want. And if we get into trouble, someone will get us out of it."

    That is a failure of leadership and a gross perversion of accountability. Thus, we have a lawsuit.

    I am most appalled when I hear excuses like "we don't have enough budget" or "our manning is cut." I don't care. The problem is, despite these cuts, nobody said you couldn't use what you had.

    In this case: what did "they" have? They had the many training books, guidance, offers of help, and a hate crimes network. A vast storehouse of knowledge. Conference notes. training. Offers of assistance.

    What happened? Supposedly we live in the connected world. Where this information can get taken off the internet and we can apply it. to improve things.

    I'm not asking for an explanation. I'm saying things could be better. I'd like to see better mentoring. Some good oversight of the instructors. And for those in the criminal justice system some good programs that translate your lessons learned into effective programs.

    And you're going to do it with less money. Not as a punishment. But those are the facts of life.

    Translate the information you have into public awareness. Help the public help you. Make sure the public knows what to look for in re hate crimes. What level of evidence is required.

    Make sure the victims are not simply passive targets, but they are your front line eyes in combating and defeating this evil. That will only come when the legal community admits they have a problem and gets out there and says, "We need to train our potential future clients to be better clients."

    We're not here as your puppet. We pay your bills. And we do have other options. The public will find the solutions.

    That is why it is appropriate that this catalyst be seen for what it is: A wakeup call for action.

    A time to get clear on what is needed to effectively run a DA's office or run an institution and respond to issues as they are not as we would wish them to be.

    If you're overworked, then you need to figure out your plan to ensure the public has the tools to stand up to the abuse and fight the hate crime before it becomes a crime.

    Proactive. With the public. Those you serve. I'm not satisfied that the legal community gives the public enough credit.

    I believe there needs to be better education in the simple rules of evidence. Use logic. And how students that there is direct relationship between civil interchange and the rules of logic that apply in all places.

    The world is watching. If the American cannot choose to rise above this and demonstrate it is capable of performing at this level, then we can go elsewhere. To other neighborhoods in other countries. Places where people solve problems, not hide them; where people use their minds, and are not punished for saying the truth.

    I am troubled that the DA's statements appear to be disconnected from civil discourse. In my view, the DA simply insults his profession when he makes statements about the declination decisions that appear to be inconsistent with what is on his own website.

    I am troubled that at a time when the legal community might need to reach out to the community to solve problems in a proactive way, the "leadership" is showing that problems are to be solved by pretending they didn't happen or explaining them away.

    Thus, I'm not confident that the timing is right. But a $100M catalyst with a court order and decision to put the DA's office under DOJ OPR might be the needed consent decree.

    I would ask that as the DA's office and Harvard Westlake muddle through the legacy of their own decisions, that they remember: Young people are not stupid. They can come to understand the rules of evidence; AG ethics criteria; caselaw; guides, and what is reasonable to expect of public officials.

    Harvard Westlake has many fine students that lead distinguished lives. It is through logic and sound reasoning that one comes to understand what is, and what can be improved. So too is the foundation for a civil society.

    Yet, it is this self-evident "benefit" of focusing on reality to solve problems that is most curious. Apparently, the guides weren't enough. I'm struck that the information is at odds with the DA actions.

    The problem isn't a lack of staff or money. It's a lack of interest to read what is already in writing.

    The DA's management climate is curious. One Article I read spoke of an over politicized environment. Although the events may be history, I would hope that others take the time to digest this article as I believe it sheds light on what is going on in the DA's office.

    It remains to be understood to what extent the payola and promotion systems need to be reviewed, whether it exists as a real problem. There are statutes covering this conduct as well.

    Just as there are statutes covering the failure to act. Negligence and willfulness are easily understood. Legally, they form a construct, something that can be understood.

    It appears all the elements exist for such a claim. We shall see what happens with the DOJ investigation.

    As I have alluded to before, I am personally surprised by the volume of information that appears to be at odds with the DA's position. From my perspective, the DA appears to be a salmon fighting his way up a larger wave of water, as if a small pebble in a river; or a salmon in a Tsunami.

    It is a shame that many manuals and more staff would make no difference as to whether one simply read the information on one's own website; or reviewed a prosecutor’s guide. This remains a matter of fact and law for the court to adjudicate.

    Indeed, despite all the momentum to do the right thing, we can only speculate what was the catalyst to go against that wave. I suspect the perceived rewards were high and I hope the Board of Supervisors takes a broader look to understand the larger picture and trends.

    Someone needs to come up with a very good story explaining to both the DoJ OPR and the court:

  • Why are the DA's actions apparently at odds with the overwhelming body of information, guides, statutes?

    It would be curious to learn, after all is said and done, that the man who rode into the office talking about integrity, ends up having the same charges leveled against him that might soon face the President of the United States.

    Was it a decision to say what was sellable; had the decision already been made; and were there other reasons and interests that "justified" what was done?

    With time we will find out. But after all is said an done, use this event to remember what happened to a student, and promise yourselves to learn and apply these lessons to make it right. So the next time this happens it is snuffed out before it spreads.

    In the end, perhaps there will be more effective ways to do things. Perhaps other schools and district attorneys have thoughts on intervention programs. Again, this is not a new problem. Others are out there. Facing the same challenges.

    It is just curious, despite all that many were equally facing, how some choose to "solve" a problem.

    Small problem. The problem just gets worse.

    Let's hope we can come to some understanding of what role the energy money, law firms, and political contributions are playing. It would be not surprising, although disappointing, to learn that the real reason a young student was ignored was for some political favors owed to someone in the White House.

    We'll leave that for another day. Good luck in your efforts. And remember to help each other out and ask for help. You might be surprised where you find the answers: Sometimes on your own website or in a manual you already paid someone to write.

    Read more . . .

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    War crimes: Calls to investigate John Yoo as alleged war crimminal

    This is the guy who said it was OK to commit torture.We previously covered Mr. Yoo suggestions. Here's an update.

    Scott Horton, president of the New York-based International League for Human Rights, called last month for Yoo and others to be investigated as war criminals for their part in drafting the memos.

    And in a lengthy analysis to be published in the Columbia Law Review this fall, Jeremy Waldron, an author, scholar and Yoo’s former colleague at the UC Berkeley School of Law, said that the “defense of torture” by Yoo and other prominent lawyers had caused “dishonor for our profession.”

    Read more . . .