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May|June 2005
Double Daylight By Margot Sanger-Katz
Made in India By Daniel Brook
Sleepstalking By Aaron Dalton
Rodzilla By Suzanne Sataline
Old Yeller By Suzanne Snider
Cases & Controversies
The Prudent Jurist By William H. Simon

Cases & Controversies


Analyze the Fifth

LAWRENCE ANTELOPE MET AN UNDERCOVER COP ONLINE, requested a child pornography videotape from the cop, and received it in the mail. He was prosecuted for possession of child pornography. Following his conviction, Antelope received a humane sentence: no jail time and five years of probation.

But to Antelope, the conditions of his probation were unacceptable. In addition to requiring him to avoid the Internet and any "sexually stimulating material," the court ordered him to enter a state-run therapy program. Antelope was required to talk about his past with psychologists and to take periodic polygraph tests. Repeatedly, Antelope chose jail time over compliance with these terms. A state therapist warned Antelope that he was expected to report to the authorities any misdeeds uncovered in therapy and Antelope argued that this reporting obligation violated his Fifth Amendment right against self-incrimination.

In a unanimous, strongly worded decision, the Ninth Circuit found for Antelope, though it harbored no illusions about his innocence. "Based on the nature of this requirement and Antelope's steadfast refusal to comply," it ruled, "it seems only fair to infer that his sexual autobiography would, in fact, reveal past sex crimes." Still, the court held that Antelope could not be forced to tell all unless he was promised immunity. As for the prosecutors who claimed the shrink had to tell them all, the court had no kind words: "Adoption of the government's position would all but eviscerate the protections the self-incrimination clause was designed to provide."

Class Divide

THE WISEBURN NEIGHBORHOOD LIES NEAR THE RUNWAYS OF LAX AIRPORT. Full of aerospace and military industry, Wiseburn has a nice, big tax base and a top-notch elementary school, complete with wireless access to the Internet. But Wiseburn residents attend high schools in the Centinela Valley Union High School District. The district encompasses the Lennox, Hawthorne, and Lawndale neighborhoods that border South-Central Los Angeles. The other areas lack Wiseburn's commercial development, house a great number of poor Latino immigrants, and send their students to elementary schools far less posh than Wiseburn's.

Perhaps prudently, taxpayers in Wiseburn looked around and decided that they'd be better off on their own. In November 2001, they approached the state school board with their plans to secede from the Centinela district and build their own high school. The board approved the plan, and Wiseburn residents were due to vote on the matter this March.

That was bad news for Centinela, which is debt-ridden and on the verge of a state takeover because of poor scores on state standardized tests. Without Wiseburn, which contributed not just dollars but many of the district's brightest students, Centinela anticipated trouble. It estimated that if Centinela loses its Wiseburn students, its remaining residents will face a 200 percent property tax hike.

The school district sued the state board of education and the other state bodies that had a hand in scheduling the vote. Their central claim is that the vote should be put before the entire school district, not just the Wiseburn residents, on grounds that the change will affect them all. Last December, a judge granted a temporary injunction, preventing Wiseburn from moving forward with plans for its own school. Shortly afterward, the state decided to take the measure off the Wiseburn ballot—though the state may restore it once the suit is resolved.

In My Chambers

JUDGE SHIRLEY WOHL KRAM PREFERS TO SETTLE SOME CRIMINAL MATTERS in a personal setting. Or so it seemed when her representatives argued before the Second Circuit that it was her "customary practice" to attend to guilty pleas and routine sentencing hearings in her robing room, the private chamber adjacent to her federal courtroom in New York City.

In the comfort of those chambers in 2001, for example, she sentenced Carlos Goiry to 11 years in prison after he was convicted of drug possession, and on the same day accepted a guilty plea of Luz Marina Munoz in another drug case. Lawyers for the defendants argued that Kram's failure to hold court in court violated the First Amendment's guarantee of public access and the rules of procedure, which require that guilty pleas be proffered in "open court."

The Second Circuit consolidated the two cases and roundly scolded Kram for her conduct. Finding that the robing room is not a courtroom for the purposes of public access, it remanded the cases back to Kram in a rare exercise of its power to supervise trial judges. The defendants will get new public hearings. But it's not clear that the sunshine of an open court will lead to brighter futures for Goiry and Munoz. Goiry had pled guilty to his crime before his private sentencing session. Munoz had said she understood the proceedings and the penalties, and was satisfied with her attorney before she proceeded to detail her part in a drug conspiracy.

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