Santa Barbara. Lawyer. Official Publication of the Santa Barbara County Bar Association September 2013 Issue 492

Transcription

1 Santa Barbara Lawyer Official Publication of the Santa Barbara County Bar Association September 2013 Issue 492

2 2 Santa Barbara Lawyer

3 September

4 Donna Lewis President 789 N Ontare Rd Santa Barbara, CA T: ; F: donna@cox.net Scott Campbell President Elect Rogers, Sheffield & Campbell, LLP 427 E. Carrillo Street Santa Barbara, CA T: ; F: scott@rogerssheffield.com Matthew Clarke Secretary Christman, Kelley & Clarke 1334 Anacapa Street, Suite B Santa Barbara, CA T: ; F: matt@christmankelley.com Naomi Dewey Chief Financial Officer Buynak, Fauver, Archbald & Spray 820 State Street 4th Floor Santa Barbara CA T: NDewey@BFASlaw.com Catherine Swysen Past President Sanger, Swysen & Dunkle 125 E De La Guerra St Ste 102 Santa Barbara, CA T: ; F: cswysen@sangerswysen.com Emily Allen Legal Aid Foundation 301 E. Canon Perdido Street Santa Barbara, CA T: emiallen@aol.com Santa Barbara County Bar Association Officers and Directors Michael Denver Hollister & Brace P O Box 630 Santa Barbara, CA T: ; F: mpdenver@hbsb.com Danielle De Smeth Bamieh & Erickson 692 E. Thompson Blvd Ventura, CA T: danielle@bamieherickson.com Katy Graham Senior Research Attorney 2nd District Court of Appeal, Div E Santa Clara St Ventura, CA T: katy.graham@jud.ca.gov James Griffith Law Offices of James P. Griffith 1129 State St Ste 30 Santa Barbara, CA T: ; F: jim@jamesgriffithlaw.com Lauren Joyce Attorney at Law 209 E Anapamu St Santa Barbara, CA T: lejesq@gmail.com Brandi Redman Attorney & Counselor at Law 1021 Laguna St. Apt 8 Santa Barbara, CA T: ; b.redman@cox.net Mission Statement Santa Barbara County Bar Association Angela Roach Santa Barbara Lawyer University of California, Santa Barbara Employee & Labor Relations 3101 SAASB Santa Barbara, CA T: angela.roach@hr.ucsb.edu James Sweeney Allen & Kimbell, LLP 317 E. Carrillo St Santa Barbara, CA T: ; F: jsweeney@aklaw.net Shelley Vail Santa Barbara Lawyer University of California, Santa Barbara Employee & Labor Relations 3101 SAASB Santa Barbara, CA T: shelley.vail@hr.ucsb.edu LAUREN WIDEMAN Price, Postel & Parma, LLP 200 E. Carrillo St., Ste. 400 Santa Barbara, CA T: lbw@ppplaw.com Lida Sideris Executive Director 15 W. Carrillo Street, Ste. 106 Santa Barbara, CA T: ; F: sblawdirector@gmail.com The mission of the Santa Barbara County Bar Association is to preserve the integrity of the legal profession and respect for the law, to advance the professional growth and education of its members, to encourage civility and collegiality among its members, to promote equal access to justice and protect the independence of the legal profession and the judiciary. Santa Barbara Lawyer A Publication of the Santa Barbara County Bar Association 2013 Santa Barbara County Bar Association CONTRIBUTING WRITERS Naomi Dewey Teo Ernst Jacqueline Hall Joseph J. Lockhart Robert Sanger EDITOR Angela D. Roach ASSISTANT EDITORS Lida Sideris Shelley Vail MOTIONS EDITOR Michael Pasternak VERDICTS & DECISIONS EDITOR Lindsay G. Shinn PROFILE EDITOR James P. Griffith PHOTO EDITOR Mike Lyons DESIGN Baushke Graphic Arts PRINT PRODUCTION Wilson Printing Submit all EDITORIAL matter to santabarbaralawyer@yahoo.com with submission in the subject line. Submit all MOTIONS matter to Michael Pasternak at pasterna@gmail.com. Submit all advertising to SBCBA, 15 W. Carrillo Street, Suite 106, Santa Barbara, CA phone , fax Classifieds can be ed to: sblawdirector@gmail.com 4 Santa Barbara Lawyer

5 Santa Barbara Lawyer Official Publication of the Santa Barbara County Bar Association September 2013 Issue 492 Articles 6 Feigning and Malingering, By Joseph J. Lockhart, PhD, ABPP and Teo Ernst, PsyD, QME 10 CWL s 25th Annual Southern California Judicial Reception, By Naomi Dewey 12 New Legal Challenge to Guantanamo Confinement, By Robert Sanger 18 Gary Blair s Retirement Party Photograph Spread 21 Change is Coming: Require Pro Bono Prior to Admission to the Bar, By Jacqueline Hall Sections 16 California Legislation Pending 16 Review Pending 22 This Month in Santa Barbara Lawyer History 23 Section Notices 29 Classifieds 30 Motions 32 Verdicts and Decisions 34 Calendar About the Cover Cabrillo Boulevard in Santa Barbara as the sun sets (Matt Erickson photo). Attendees celebrate Gary Blair s retirement. For more, see page 18. September

6 Legal News Feigning and Malingering By Joseph J. Lockhart, PhD, ABPP and Teo Ernst, PsyD, QME M yth or Fact? Forensic mental health experts, by virtue of their training and experience, are able to detect whether someone is honest or malingering by means of the clinical interview. Persons who misreport and exaggerate their symptoms do so because they are dishonest; if they exaggerate in one area, they will lie or exaggerate in all areas. These statements are myths, not facts. We will discuss how professionals, whether in mental health or medicine, are almost never able to detect deception by interview or observation alone. An exception to this limitation is when they are aided by sophisticated validity tests, structured interviews, and objective testing. At the same time, there are many normal cognitive processes which influence how people remember their pre-injury functioning, and how they attribute their current symptoms to their injury. Finally, we discuss some important limitations and caveats of all psychological tests, including validity tests. Where does Feigning Occur in Legal Proceedings? Malingering is defined by the DSM as...the intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives... 1 Feigning, on the other hand, is defined as the deliberate fabrication or gross exaggeration of psychological or physical symptoms without any assumptions about its goals. Given the fact that we cannot read one another s minds, we can never be entirely certain as to why a particular client either does more poorly on a test than expected, or expresses more symptoms than seem warranted. For these reasons, we prefer to use the term feigning to characterize failure on symptom validity tests. Feigning does not imply a particular motivation, external incentive, or deliberate intent to deceive. In civil proceedings, plaintiffs may feign the presence of psychiatric disorders, such as depression and PTSD, in order to achieve compensation, time off work, or legal vindication if they believe they were wronged. Plaintiffs who are alleging a head injury may feign cognitive or memory deficits. In personal injury claims, plaintiffs with injuries may exaggerate physical pain. In criminal settings, defendants may feign mental health symptoms in order to appear incompetent to stand trial, or to appear insane at the time of their crime. In sentencing proceedings, defendants may feign mental health conditions which they hope will lessen the severity of their sentence. How Good are Experts at Detecting Malingering? Historically, mental health experts have attempted to gauge an examinee s honesty by means of the clinical interview. By relying on their clinical experience and knowledge of psychiatric disorders, experts develop a sense of the examinee s honesty about their symptoms. Although some experts 2 claim very high rates of detecting malingering through the clinical interview, none have been shown to be accurate above a chance level. Thus, experts who conclude that a plaintiff is feigning without a systematic assessment are committing a serious omission. Research by Aldert Vrij 3 demonstrates that experts in lie detection (including law enforcement and mental health professionals) rarely do better than untrained laypersons. They typically perform somewhat above chance in detecting lies, but often make the opposite mistake of failing to detect the truth. In fact, professionals often pay attention to cues which are not associated with deception. 4 How Big is the Problem? From the outset, it is important to estimate the scope of the problem of feigning. If feigning is exceedingly rare, then even very good tests will be unable to catch a feigner, without also misidentifying honest responders (so-called false positives ). On the other hand, assuming that every plaintiff or defendant is dishonest deprives them of the remedies to which they are entitled. In a criminal context, it could even force an incompetent defendant into trial. 5 A landmark study on the prevalence of symptom exaggeration was conducted by the neuropsychologist Wiley Mittenberg 6 and his colleagues. Surveying a large number of neuropsychologists throughout the country, Mittenberg found estimates of symptom exaggeration as high as 30% in personal injury cases, 20% in criminal cases, to a low of 8% for non-contested medical cases. In general, these estimates have proven to be quite robust in subsequent 6 Santa Barbara Lawyer

7 Legal News research, with the prevalence of feigning highest in civil cases, followed by high-stakes criminal cases, and lowest in those cases not involving compensation. However, these general estimates cannot answer the essential legal question as to whether a plaintiff or defendant is feigning in a particular case. What is needed are tools which the forensic psychologist can bring to these evaluations to determine whether the defendant is honestly reporting or exaggerating their symptoms. A potentially confounding issue is the normal psychological processes which tend to distort memory and self-report in people who have suffered a significant illness or injury. 7 Normal Changes in Memory after Injury Examinees frequently distort their self-report of current symptoms and pre-injury functioning for many reasons not associated with feigning. In fact, it is normal for individuals who have experienced a significant injury or illness (e.g., headaches, sports injury) to idealize their pre-injury functioning, and to attribute most of their current problems in living to the injury. 8 These distortions are not intentional, and should not be confused with malingering. So, What Does Work? Feigned Cognitive Impairment - If clinical experience and the clinical interview do not make mental health experts better able to detect feigning, what does work? Fortunately, objective and legally defensible methods do exist to detect feigning and symptom exaggeration. 9 The strategies used in detecting feigned cognitive impairment range from the straightforward to the highly complex. The three major detection strategies include the Floor effect, the performance curve, and forced choice testing. Examples of such tests include the Test of Memory Malingering (TOMM) and Word Memory Test (WMT). Floor Effect - Tests that utilize the floor effect to detect feigning depend on well-established cognitive research showing that certain tasks may seem difficult on their face, but are in fact trivially easy. For example, people are amazingly good at visual recognition tests. Given only brief glimpses of dozens of drawings, they can accurately pick out images they have seen before. When an examinee scores far below the expected level on one of these tests, especially when they perform below the level of patients with mild traumatic brain injury (mtbi), there is valid concern they may be exaggerating their memory impairments. Performance Curve - Another strategy in detecting cognitive feigning is termed the Performance Curve. Tests using this approach include a broad range of items, from the very easy to the extremely difficult. The so-called curve in performance occurs because nearly everyone gets the easy items correct, but this probability declines as the items increase in difficulty. Examinees who are attempting to feign will presumably answer simple items incorrectly. As the item difficulty increases, the feigner will not know the answer, and begins scoring at a chance level. By examining the test results, it is possible to determine mathematically how closely the examinee s responses fit the typical performance curve. Forced-Choice Testing - A third, but powerful strategy is termed forced-choice testing. Examinees are forced to choose among four potential responses, so that even random answers would be correct 25% of the time. If the examinee scores significantly below chance, it provides evidence that they are deliberately choosing an incorrect answer. Detecting Feigned Psychological Symptoms There are empirically-based techniques to detect feigned psychological symptoms, including psychosis, depression, and posttraumatic stress disorder. 10 These techniques are very distinct from the unstructured clinical interview, in that the psychologist uses structured interviews and questionnaires, and is able to directly compare the examinee s results with empirical norms. Examples of specific tests include the Structured Interview or Reported Symptoms (SIRS) and the Miller Forensic Assessment of Symptoms Test (M-FAST). Three major detection strategies used by these tests include identifying rare symptoms, rare symptom combinations, and unlikely symptom severity. Identifying Rare Symptoms: This strategy capitalizes on the fact that certain symptoms are rarely endorsed by patients with valid mental illness. As an increasing number of rare symptoms are endorsed, it becomes progressively less likely that the symptoms are part of a valid mental disorder. Rare Symptom Combinations: This strategy identifies symptoms which rarely exist in combination in real patients, but may be reported by feigning individuals who do not know which psychological symptoms co-exist together. Unlikely Symptom Severity: In contrast to individuals with valid impairments, feigning individuals often endorse a wide range of symptoms as unbearable or extreme. Thus, when examinees endorse large numbers of symptoms as severe, it suggests that they may be exaggerating, particularly if the severity of symptoms does not correspond to their everyday functioning. September

8 Legal News Pain and Illness Exaggeration Although the detection of exaggerated medical symptoms and pain is beyond the scope of this article, there are certain tests (e.g., the MMPI-2, MCMI) which are able to evaluate the consistency of symptom reporting, and compare the examinee s results with valid patients or known feigners. 11 Similarly, patients who complain of pain typically also complain of problems with concentration, memory, and attention. These pain-related cognitive symptoms are susceptible to the same kinds of validity testing used in neuropsychological evaluations. 12 Limitations and Caveats in the use of Validity Testing Symptom validity tests (SVT s) are far from perfect. They are subject to the same empirical and ethical limitations as are all psychological tests, and it is the duty of the expert to be familiar with the psychometric characteristics of the test they employ. Validity tests are not all created equal. They have differing levels of sensitivity and specificity. Tests which have lower specificity run the risk of misidentifying nonfeigners as feigners, or false positives. Similarly, validity tests are not appropriate for use with populations that have documented neurological disorders, such as Alzheimer s or Huntington s Dementia. Such patients fail SVT s at an unacceptable rate. Importance of Multiple Sources of Information An essential distinction between the forensic vs. clinical evaluation is the need to seek and compare compare data from multiple sources of information, including selfreported symptoms, psychological tests results, records, and collateral interviews. Although it is acceptable in clinical practice to form a diagnosis based solely upon a patient s self-reported symptoms, forensic evaluations draw upon multiple sources of information to form a more objective opinion. This is essential in the forensic evaluation, given the need to withstand judicial scrutiny. During forensic evaluations, significant inconsistencies between sources of information raise a red flag for symptom exaggeration. However, a mere hypothesis is not enough; the evaluator needs to systematically evaluate the possibility through testing. How should experts respond to examinees who fail symptom validity tests? What should the forensic psychiatrist or psychologist conclude when the examinee has failed symptom validity tests? As the psychologist is not a detective, he or she can never conclusively know an examinee s motivation for their performance on a symptom validity test. Nevertheless, such results cast doubt on the accuracy of the examinee s self-report, including their description of their symptoms, their severity, and their responses on other objective psychological and neuropsychological tests. Even if feigning is found, third party information including medical records and collateral interviews may still be used to support the presence of psychiatric or cognitive symptoms. However, unless multiple sources of third party information exist and are consistent with one another, much of it will be uncorroborated, because the self-report and testing data are rendered unreliable. The APA s guidelines for forensic assessment provide ethical guidance for forensic psychologists when dealing with uncorroborated data (APA, 2013): When relying upon data that have not been corroborated, forensic practitioners seek to make known the uncorroborated status of the data, any associated strengths and limitations, and the reasons for relying upon the data. 13 Thus, when feigning occurs on symptom validity tests, in a very real sense the examinee has harmed themselves, by invalidating evidence that might otherwise have been used to corroborate their case. While third party evidence of psychiatric symptoms may still be used (if it exists), it is unlikely to be as directly applicable to the plaintiff s emotional injuries. This situation is particularly damaging in civil or competency cases where the plaintiffs or defendants bear the burden of proof. Without supporting evidence, they are unlikely to overcome their legal burden, and their claim will fail. Concluding Remarks Malingering is a highly pejorative term, like a scarlet M, branding the examinee as manipulative and unreliable. Forensic mental health professionals should be very cautious before they employ a term with such potentially pejorative consequences. Similar caution applies in making this diagnosis, because malingering requires the deliberate manufacture of symptoms for an external incentive. Psychologists are not mind readers; without compelling evidence, we cannot be certain of the motivations of examinees, and hence, make the diagnosis of malingering. On the other hand, forensic psychologists are bound by their standards and guidelines to make clear the strengths and weaknesses of the evidence on which they base their conclusions. If an examinee feigns on a validity test or selfreport, then any conclusions regarding their psychological Continued on page 11 8 Santa Barbara Lawyer

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10 Legal News CWL s 25th Annual Southern California Judicial Reception By Naomi Dewey On July 26, 2013, academics, lawyers, court administrators, and jurists from around the state flocked to Nipomo for California Women Lawyers 25 th Annual Southern California Judicial Reception. The historic Dana-Powers House played charming host for the Friday evening gathering. CWL President Eliza Rodrigues presented the Joan Dempsey Klein Distinguished Jurist Award to the Honorable Teresa Estrada-Mullaney, Judge of the San Luis Obispo Superior Court (Retired). Tributes to Judge Estrada-Mullaney were given by Hon. Barry La Barbera, Presiding Judge of San Luis Obispo Superior Court, Hon. Denise De Bellefeuille, Santa Barbara Superior Court, Dr. Laura Gomez, Esq., UCLA School of Law, and attorneys Mark Jacobson and Rod Cathcart from the Administrative Office of the Courts. Judge Teresa Estrada-Mullaney was selected by California Women Lawyers to receive the award based on a remarkable professional career that established her as a trailblazer CWL President Eliza Rodrigues presents Judge Estrada-Mullaney the Joan Dempsey Klein Distinguished Jurist Award. for women in the legal profession. As the daughter of immigrant parents, with Spanish as her first language, she overcame social and economic barriers to reach her academic and professional goals. A graduate of the UCLA School of Law, nominators commented that she was driven not by a desire for recognition, but for the purpose of making a difference. Judge Estrada-Mullaney s many firsts began in Orange County where she was the first Latina Deputy District Attorney. She was the first female Deputy District Attorney in San Luis Obispo County, and she distinguished herself as the first woman to prosecute a murder case and the first to use DNA evidence in trial in San Luis Obispo County. The first woman to be appointed to the San Luis Obispo Municipal Court bench, in 1992, Judge Estrada-Mullaney won a position on the Superior Court bench following a contested election in She was the second Hispanic in the history of the San Luis Obispo Superior Court to serve as a judge, the first being Governor Romualdo Pacheco, who served from 1854 to 1859 and went on to become the 12th Governor of California. In recognition of her service, Judge Estrada Mullaney was named 2006 Influential Person in Latino Today. Judge Estrada-Mullaney retired on January 25, 2012 after twenty years as a Municipal and Superior Court Judge for San Luis Obispo County. She continues to work around the State in the Assigned Judges Program. The Joan Dempsey Klein Distinguished Jurist Award was first presented in At the time, it was the Distinguished Jurist Award and its first recipient was Joan Dempsey Klein, a Justice on the Second District Court of Appeal in California. Justice Klein is a champion of women s rights and a pioneer in the struggle to achieve equal opportunity for women in the law. She was a founder and provisional president of CWL and the first president of the National Association of Women Judges, and she has spent considerable time giving support and positive reinforcement to women in the legal profession. She is well known as an excellent judge who listens, encourages dialogue, and fosters consensus. She accomplished all of this while raising five children. Candidates for the Joan Dempsey Klein Distinguished Jurist Award are evaluated for excellence as jurists and for longstanding vigorous service and inspiration to the women lawyers of California. Those eligible for consideration are from the southern portion of the State. The Joan Dempsey Klein Distinguished Jurist Award is presented annually at CWL s Southern California Judicial Reception. To attend, please keep an eye on CWL News and Events and the CWL Calendar. 10 Santa Barbara Lawyer

11 Legal News Judge Estrada-Mullaney watches on. Naomi Dewey, Brandi Redman, Danielle DeSmeth, Judge Teresa Estrada-Mullaney, Eliza Rodrigues, Natasha S. Chee, and Kelly Robbins attend the CWL 25th Annual Southern California Judicial Reception on July 26, Lockhart/Ernst, continued from page 8 injury, disability, or impairment become correspondingly less certain, and based on subjective, rather than objective data. Such weaknesses will dramatically weaken their claim. Dr. Lockhart is a Board Certified forensic psychologist, a Fellow of the American Academy of Forensic Psychology. Dr. Ernst is a forensic psychologist, a Qualified Medical Evaluator and an Assistant Clinical Professor at UCSF. References 1 American Psychiatric Assoc. (2004). DSM-IV-TR. Washington: Author 2 Resnick, P. J. (2007). My favorite tips for detecting malingering and violence risk. The Psychiatric clinics of North America, 30(2), Vrij, A. (2008). Detecting Lies and Deceit: Pitfalls and Opportunities. Hoboken, NJ: John Wiley and Sons. 4 Inbau, F., Reid, J., Buckley, J., and Jane, B. (2011). Criminal Investigation and Confessions. Jones and Bartlett Learning. 5 Drope v. Missouri (1975). US Supreme Court, 420 U.S. 162; 95 S. Ct. 896; 43 L. Ed. 2d 103; 1975 U.S. 6 Mittenberg, W., Patton, C., Canyock, E. M., et al. (2002). Base Rates of Malingering and Symptom Exeggeration. Journal of Clinical and Experimental Neuropsychology, Gunstad, J., & Suhr, J. A. (2001). Expectation as etiology versus the good old days : postconcussion syndrome symptom reporting in athletes, headache sufferers, and depressed individuals. Journal of the International Neuropsychological Society: JINS, 7(3), Greve, K. W., Ord, J. S., Bianchini, K. J., & Curtis, K. L. (2009). Prevalence of malingering in patients with chronic pain referred for psychologic evaluation in a medico-legal context. Archives of Physical Medicine and Rehabilitation, 90(7), Barsky AJ. (2002). Forgetting, fabricating, and telescoping: The instability of the medical history. Archives of Internal Medicine, 162(9), doi: /archinte Rogers, R (2008). Clinical Assessment of malingering and deception. New York: The Guilford Press. 10 Rogers, R., & Shuman, D. W. (2005). Fundamentals of Forensic Practice: Mental Health and Criminal Law. 11 Bianchini, K. J., Etherton, J. L., Greve, K. W., Heinly, M. T., & Meyers, J. E. (2008). Classification accuracy of MMPI-2 validity scales in the detection of pain-related malingering: a knowngroups study. Assessment, 15(4), Iverson, G., King, R., Scott, J., & Adams, R. (2001). Cognitive Complaints in Litigating Patients with Head Injuries or Chronic Pain. Journal of Forensic Neuropsychology. Volume 2, Issue American Psychological Association. (2013). Specialty guidelines for forensic psychology. American Psychologist, 68(1), doi: /a September

12 Criminal Justice New Legal Challenge to Guantanamo Confinement By Robert Sanger I n this month s Criminal Justice column we will discuss a new Petition for Writ of Habeas Corpus filed in the federal court relating to the non-release of detainees held at Guantanamo Bay notwithstanding the order of the Administration for their release. As of this writing, the President of the United States has issued orders releasing at least 40 detainees, including Ahmed Adnan Ajam who is the subject of the new Petition. Ironically, under the National Defense Authorization Act for the Fiscal Years ( NDAA ), the President is restricted from releasing detainees under the NDAA which was enacted as a partisan rider to defense budget legislation. 2 Consequently, none of the 40 or more detainees ordered released have actually been released. The Petition raises constitutionally compelling objections to the certification process. These include the objection that the NDAA rider was a Bill of Attainder and was imposed in violation of the prohibition against Ex Post Facto laws. The new claim made is that the NDAA violates the President s powers as Commander-in-Chief, particularly as those powers were construed to allow the last President in office to detain the individuals in the first place. We will look at the background of these proceedings and the constitutional arguments being advanced. The Status of Detainees Ordered Released The detainees who have been ordered released have not been charged with any misconduct, in part, because the government has decided that there is insufficient evidence to charge them. Therefore, they remain in custody in perpetuity without formal charges and without the chance of trial. This is a sentence of death in detention in the custody of the United States Government. The 40 plus detainees who have been ordered released most of them years ago are nevertheless being held as prisoners with no hope. Readers of the Santa Barbara Lawyer Magazine may recall that the Criminal Justice column of December 2011 reported on the case of Latif v. Barack Obama 3 in which the Court of Appeals for the District of Columbia used the presumption of government records regularity to prevent Mr. Latif from being released, despite a federal district court ruling in his favor, on the grounds that the record included a government intelligence report. That report was the initial detention report based on hearsay. The Circuit Court opinion recognized that the intelligence report was prepared in stressful Robert Sanger and chaotic conditions, filtered through interpreters, subject to transcription errors, and heavily redacted for national security purposes. Nevertheless, the Circuit Court opinion gives the report a presumption of regularity. That decision was appealed to the United States Supreme Court. About 10 months after the publication of that Criminal Justice article, Adnan Farhan Latif, the plaintiff who the Circuit Court had condemned to permanent imprisonment without trial, died in custody at Guantanamo Bay on September 8, He was the eighth such detainee to die in custody without charges and without the hope of trial. Mr. Latif s challenge to being held based on the presumed regularity of his initial detention document died with him. The individual who is the subject of this article and the new Petition, Ahmed Adnan Ajam, is still alive. He has been a prisoner at Guantanamo since June 14, 2002 under difficult conditions. Records released on Wikileaks include the actual government weight chart for Mr. Ajam which reflects that his weight has fluctuated wildly, dropping, in 2004, 115 pounds within what appears to be a two or three month period. Records from the hunger strike of 2006 are incomplete but show another significant drop in his weight by November of The records of the government recording his condition in March of 2008 stated that, Detainee is in fair health. 5 In Mr. Ajam s favor, he is reported to be compliant with the guards and was reassessed not to have been a member of the Syrian Al-Qaida cell with which he was originally assessed to be associated. It also appears that he studied law at the Islamic Studies Institute in Kandahar. Most of the materials relating to the investigation are still classified and most of the information relating to Mr. Ajam s detention is phrased in general terms, such as, it is assessed that. As with other detainees, what can be seen is based on assessments that he might have met certain people or was 12 Santa Barbara Lawyer

13 Criminal Justice in certain places that are in turn assessed to be involved in activities that could be connected to Al-Qaida. Of course, none of this is to say that Mr. Ajam was not an enemy combatant. On the record we have available to us, we simply cannot tell. What is significant is that the Administration determined that there was insufficient evidence to charge him or try him and that he should be released. Nevertheless, the government is still holding Mr. Ajam as a prisoner with no charges, no trial, and an order from the President to release him. The Petition in AHMED ADNAN AJAM (ISN 326), Petitioner v. BARACK OBAMA, et al. As of this writing, the petition for Writ of Habeas Corpus filed in the United States District Court for the District of Columbia is still partially sealed as are most of the underlying documents. According to the docket, the District Court Judge has issued an order requesting briefing on the legal issues raised in the habeas petition. Unfortunately, that order is also under seal. However, the Petitioner s Motion for Leave to File Redacted Version of Memorandum of Law on Public Policy is filed without seal. 6 The Motion states concisely the constitutional grounds of the claims in the habeas petition: The propositions of Petitioner s current motion to amend are almost entirely public. They are that (a) the Executive has imprisoned Petitioner for more than a decade; (b) the Executive has never justified Petitioner s detention other than as a claimed exercise of its authority to target Petitioner with military force under Article II, Section 2 of the Constitution; (c) following a Congressional authorization for the use of military force, Article II, Section 2 of the Constitution gives the President sole authority to determine whether and when to use, or desist from using military force against otherwise-targetable persons within the scope of that authorization; (d) in the exercise of his Commanderin-Chief targeting authority, the President determined almost four years ago that he would desist from targeting Petitioner with military force; (e) Congress unconstitutionally intruded on the President s determination by enacting provisions of the National Defense Authorization Act for Fiscal Years 20ll-2013, [citations omitted] ( NDAA ); (f) the NDAA s certification requirements alternatively constitute an unconstitutional Bill of Attainder; and (g) the circumstances of Petitioner s case show that he has suffered and continues to suffer a direct and immediate injury as a consequence of Congress s unconstitutional intrusion. By amending his petition, Petitioner would seek a declaration that the NDAA provisions are void and that the President should be declared free to proceed with desisting in the exercise of military force against Petitioner, including the transfer of Petitioner abroad to facilitate the same, without any requirement of certifications being made to Congress. Now, of course, the District Court for District of Columbia is the venue in which all of the Guantanamo cases are filed. The Judges there are dealing with all aspects of this unfortunate situation, including, claims of torture and, most recently, a series of cases on the hunger strike and whether the United States Government can force feed prisoners to keep them alive. The Court has also heard every other argument that teams dedicated lawyers have made for their clients. But, as far as we can tell from the unredacted materials and from other commentaries on the matter, the specific argument that the NDAA is unconstitutional based on the argument that the President cannot both have and be deprived of the power to determine who is an enemy combatant is a new one. This is coupled with the claim that the NDAA is a Bill of Attainder. Bill of Attainder and Ex Post Facto Law Taking the last argument first, logically there is no way around the claim that the NDAA is a Bill of Attainder. It is a fundamental concept of our Constitutional system that there is a separation of powers. The legislature makes laws which apply prospectively and the courts provide a forum for a fair determination of whether or not a crime was committed, whether the accused committed it, and what punishment, if any, should be imposed. Article I Section 9 of the United States Constitution sets forth the structure and limitations on the legislative branch and states categorically, No Bill of Attainder or ex post facto Law shall be passed. Article I Section 10 says, No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility. (italics added.) 7 A simple logical analysis, devoid of emotion (and the politics of fear and hatred), 8 leads to the inescapable conclusion that the NDAA is a bill of attainder and is an ex post facto law. The NDAA was passed by the legislature. It has the effect of creating a legislative determination that a specific class of people will be imprisoned for life despite the fact they had previously been ordered released. It makes this legislative determination after the fact. That is a bill of attainder and an ex post facto law. That is what the founders sought to prohibit. A toll has been taken on the Constitution historically by the influence of emotion and the politics of fear and September

14 Criminal Justice White, Zuckerman, Warsavsky, Luna & Hunt, LLP offers much more than accounting expertise. Our creative ideas and new strategies give our clients a competitive edge. In family law, you need professionals who can analyze financial situations and provide unimpeachable analysis and expert testimony. With decades of experience, we are highly qualified in all areas including: Business & Professional Practice Valuations Cash Flow Available for Support High Earner Child Support Situations Lifestyle Expense Analysis Community/Separate Property Balance Sheets Tax Effects of Divorce & Tax Planning Asset Tracing Reimbursement & Misappropriation Analyses Call us today so you can focus on what s important your clients. Certified Public ACCOUNTANTS Expert Witnesses Forensic Accountants Business Appraisers Marital Dissolution Lost Earnings & Profits Wrongful Termination Fraud Investigation hatred. Today, the excuse for making and enforcing these unconstitutional laws is the fear and hatred of Al-Qaida. In the 1950 s repressive and unconstitutional laws were made and enforced based on the fear and hatred of Communists. For instance, starting with American Communications Association v. Douds, 339 U.S. 382 (1950), the Court struggled in a series of opinions to find a way to avoid interfering with the fight against Communism by circumventing the prohibition of bills of attainder and ex post facto laws with clever rationalizations. Both the Red Scare and the Al-Qaida Scare were also exacerbated by xenophobia encouraged by politicians and the media. 9 In the fifties, the public was willing to suspend disbelief and endorse unconstitutional legislation to get tough on communists. In retrospect, it seems almost naïve and certainly oppressive. Yet, at the moment, it did not. Today, we are in the midst of another scare and, once again, are behaving in a way that future generations will probably find naïve and oppressive. Nevertheless, so far, even in the controversial cases of the 50 s and 60 s, the constitutional prohibition on bills of attainder and ex post facto laws were still held to apply where there is legislation imposing clear punishment (e.g., life imprisonment), with no ability to escape the punishment (e.g., no equivalent to signing a loyalty oath), for past conduct (e.g., not for joining a Board after refusing to take an oath), as to a class of people. The Court dealt with this in United States v. Brown, 381 U.S. 437 (1965) in a context similar to Douds holding that an oath under the Taft-Hartley act constituted a bill of attainder. Since then, the Court has been even more deferential particularly where it impinged on First Amendment rights to speech. And in cases like this, where there is direct imprisonment by legislative enactment, the court has never wavered. We will have a chance to see if the current politics of fear and hatred will evoke an even more tortured evasion of these constitutional rights than the courts were willing to entertain at the height of McCarthyism. To attend our Santa Barbara Family Law Study Group, llasseube@wzwlw.com. There is no charge for the dinner or program and you will receive one hour of MCLE credit. Our two California locations include: Los Angeles Orange County expert@wzwlh.com Interference with the President s Constitutional Powers In addition, the Petition for Writ of Habeas Corpus in the Ajam case raises, through a series of claims, the fundamental issue of Presidential power. It is ironic that the same politicians who were claiming that President George W. Bush had the power to determine who was an enemy combatant and detain that person without charges or trial were now claiming that President Barack Obama did not have the power to determine that they did not meet the criteria to remain detained over a decade later. In the words of 14 Santa Barbara Lawyer

15 Criminal Justice the Petition: From the proposition that only the President can direct the use of military force against a specific target within the broad scope of a congressional authorization to use military force, it follows that only the President can determine whether and when to desist from the use of that force against a specific target. Once again, in the absence of emotions and the politics of fear and hatred, the logic is unassailable. It is only the brute force of the party in control of the legislature to promote its own agenda it is not logic or law that could lead to this result. The power to detain enemy combatants through military force, to the extent it is constitutional to start with, is an Executive Branch power. There is nothing in the Constitution that allows the legislature to decide who to detain or when the President can determine they should no longer be detained. There is certainly nothing in the Constitution that allows the legislature to start making bills of attainder or making ex post fact laws. The unitary executive excuse given by the Bush Administration for detention (and even for torture) was a claim for Executive Branch power, not Legislative power. The argument now that (as a rider to a defense appropriations bill) the legislature can limit the current President from releasing people the last President detained seems unsupportable as a matter of logic, law, and fundamental fairness. Conclusion Time will tell how the courts handle this in the immediate future and how history will evaluate their conduct later. If these issues get to the Supreme Court, will there be a five to four decision, essentially along political lines? Or will there be a logical and legal application of the constitutional prohibitions on bills of attainder and ex post facto laws? Will the courts, including the Supreme Court, honor the Separation of Powers doctrine and prohibit the legislature from usurping the role of both the Executive and the Judicial Branches? Will the courts succumb to the politics of the moment and be subjected to the disapprobation of history? Or will they take a principled approach and find the NDAA rider provisions unconstitutional? We will see. Robert Sanger is a Certified Criminal Law Specialist and is in his 40th year of practice as a criminal defense lawyer in Santa Barbara. He is a partner in the firm of Sanger Swysen & Dunkle. Mr. Sanger is the 2013 President of California Attorneys for Criminal Justice (CACJ), the statewide criminal defense lawyers organization. He is a Director of Death Penalty Focus and is a Member of the ABA Criminal Justice Sentencing Committee and the NACDL Death Penalty Committee. Mr. Sanger is also a Member of the American Association for the Advancement of Science (AAAS). Endnotes 1 National Defense Authorization Act for Fiscal Years 20ll-2013, Pub. L. No , $ 1033, 124 Stat.4137 ([an.7,2011); Pub. L. No. ll2-81, $ 1028, 125 Stat (Dec. 31,2011), Pub. L. No. ll2-239, $ 1028, 126 Stat (Jan. 2,2013) 2 President Obama signed these bills into law. The President said in signing statements that although the restrictions intruded on his powers, he did not veto the measures because they contained vital spending authority for U.S. defense operations. 3 Latif v. Obama, , 2011 WL (D.C. Cir. Oct. 14, 2011). 4 See the.pdf document at Wikileaks, wikipedia/commons/a/a3/isn_326_--_ahmed_adnana_muhammad_ajam_--_guantanamo_weights.jpg Case 1:09-cv RCL, Document 1725, Filed 07/10/1 7 Most, if not all, states of the United States have a similar provision in their state constitutions. 8 There has been troubling litigation in this area, particularly where hot political topics were involved. For instance, see American Communications Association v. Douds, 339 U.S. 382 (1950) and United States v. Brown, 381 U.S. 437 (1965). 9 In the fifties, Senator McCarthy s hearings before the House Un-American Activities Committee were covered heavily by the press and eventually network news. Today, we have Infotainment News and shock commentators. There are similarities and differences but there is no doubt that the media has had an effect on public fear and hatred in both situations. The lawyer of the 21st Century must obtain a skill-set that is unique to mediation and other forms of dispute resolution, other than courtroom litigation. American Bar Association Mediation & Dispute Resolution Professional Certificate Program Learn how mediation can help improve working relationships, cut legal costs, and increase productivity. FALL 2013 COURSES: Bankruptcy and Foreclosure Mediation Cultural Perspectives of Conflict Mediation Practicum Mediation: Theory and Practice UCSANTABARBARA EXTENSION EXTENSION.UCSB.EDU September

16 Legal Updates California Legislation Pending U PDATE Assembly Bill 1266 signed by the Governor on August 12, School Success and Opportunity Act (Ammiano) The bill will become effective on January 1, 2014, and will allow transgender students to fully participate in all school activities, programs and facilities. AB 1266 will ensure that students who are transgender have equal access to facilities and activities, like sports teams, that match their gender. Senate Bill 4. (Pavley) This bill addresses hydraulic fracturing, otherwise known as fracking. The bill would require an independent scientific study of well stimulation specifically including acidization and fracking addressing occupational, public, and environmental health and safety be conducted by January 1, The study would Review Pending Case: Robey v. Superior Court (2013) 56 Cal.4 th 1218 Status: Decided June, 27, 2013 Issue Presented: Petition for review after the Court of Appeal granted a petition for peremptory writ of mandate. An issue initially identified by the court was, Could police conduct a warrantless search of a package smelling of marijuana under a plain smell exception to the warrant requirement? The Court decided, [S]eizure of the package [consigned for shipment] was lawful but the warrantless search of the sealed package was not justified by exigent circumstances and... the District Attorney forfeited the argument that the plain smell of marijuana alone justified the search without a warrant. Local Counsel: Raimundo Montes de Oca, Patricia Ann Dark, for Petitioner Kewhan Robey; Joyce Dudley, Michael Carrozzo for real party in interest. address induced seismicity associated with fracking. The bill would also direct the California Division of Oil Gas and Geothermal Resources (DOGGR) to enact comprehensive hydraulic fracturing regulations, in consultation with additional regulators, which include advanced public notice of planned fracking activities and fracking fluid chemical disclosure. The bill would also require that the name and quantity of each chemical species be publicly-available. The bill would also require that DOGGR evaluate each trade secret claim using specified criteria. Members of the state Senate Natural Resources and Water Committee voted to pass Senate Bill. On August 6 th the bill was read a second time and amended, then re-referred to the Assembly Appropriations Committee. Senate Bill 491. (Hernandez) This bill would increase nurse practitioners scope of practice by allowing them to practice independently of physicians in certain medical facilities, such as hospitals, clinics, and skilled-nursing facilities. The author removed language in the bill that would have allowed nurse practitioners to operate completely independent of physician oversight after 6,240 hours of supervised practice. Following that change, this bill passed during reconsideration in an Assembly committee August 13 th after failing to earn enough votes the prior week. SB 491 is headed to the Assembly Appropriations Committee. Senate Bill 493. (Hernandez) This bill would increase the role of pharmacists by allowing them to give immunizations and prescribe some drugs. This bill passed the Assembly Health Committee on August 13 th and is headed to the Assembly Appropriations Committee. CALIFORNIA REGULATION OF ONLINE POKER UN- LIKELY TO PASS THIS SESSION The California General Assembly is set to dismiss their current session on September 6 th. Therefore, any bill looking to pass this session would have to be through committee and on the floor of the General Assembly for a vote before September 6 th. The following three bills are currently in committee or proposed on the subject of regulation of online poker: First, Senate Bill 678, State Senator Lou Correa s Authorization and Regulation of Internet Poker and Consumer Protection Act of Second, Senate Bill 51, Senator Roderick Wright s Internet Gambling Consumer Protection and Public-Private Partnership Act of And, finally, a draft bill from the California Indian tribes. All three bills have not passed the committee phase of the legislative process. Barring a special session of the General Assembly, these bills would have to be reintroduced in 2014 for consideration. 16 Santa Barbara Lawyer

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18 Tom Hinshaw and Judge Thomas Anderle Gary Blair s Retirement Party Mrs. Huseman, Hon. Eugene Huseman (ret.), Hon. William Gordon (ret.), Carol Gordon and Jackie Stevens Gary Blair, Angela Braun, Monday Ayala and Connie Gonzalez Glenn Robertson and Judge Frank Ochoa Judge Colleen Sterne, Ann Anderson and Betty L. Jeppesen Hon. Bruce Dodds (ret.), Hon. William Gordon (ret.), Gary Blair and Darrel Parker 18 Santa Barbara Lawyer

19 Glenn Robertson, Paula Waldman and Michael Carty Marilyn Metzner and Judge Tom Adams Santa Barbara Superior Court Judges thank Gary Blair for his service Gary Blair then and now The crowd looks on September

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