The Right to Be Judged by What You Do, Not Who You Are

SHERRY F. COLB

Cornell law professor Sherry F. Colb considers the case for occasionally including status—“who you are”—in assigning blame in criminal matters. Colb explains that generally, our penal system prohibits “status offenses,” but sometimes, such as in the case of psychopaths, we are comfortable deciding how to punish a person based at least in part on who they are.

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California v. Zaheer

Docket: D074972(Fourth Appellate District)

Opinion Date: September 8, 2020

Judge: Dato

Areas of Law: Constitutional Law, Criminal Law

Defendant Hashmatullah Zaheer was tried twice for sexual battery by restraint. He denied any wrongdoing. The case hinged entirely on the credibility of the victim, Martha M. In the first trial, Zaheer was nearly acquitted of the two felonies with which he was charged, with the jury voting 11‒1 in his favor on both counts. In the second trial, however, he was convicted of both felonies. A key aspect of the defense attack on Martha’s credibility involved the condition of the electronic door lock system in Zaheer’s car. In both trials, Martha testified in some detail about how Zaheer locked her inside the car by pressing a button on the driver’s side door. The defense countered that with evidence that the electronic locking mechanism in Zaheer’s car had not worked in years. In the second trial, however, defense counsel simply failed to establish the necessary predicate fact that Martha was in Zaheer’s Honda on the night in question. And despite having knowledge to the contrary, the prosecutor seized on this oversight to suggest for the first time during her closing argument that Zaheer might have been driving a company car. In a case that hinged entirely on whether the jury believed Martha, and with a jury in the first trial that largely did not, the Court of Appeal felt compelled to conclude that defense counsel’s error, compounded by the prosecutor’s comment, was prejudicial. Judgment was therefore reversed and the case remanded for further proceedings.

In re J.E.

Docket: A156839(First Appellate District)

Opinion Date: September 8, 2020

Judge: Tucher

Areas of Law: Criminal Law, Juvenile Law

Deputies responded to a domestic violence report. J.E. had left the house. J.E.'s Mother signed a citizen’s arrest form for battery. The deputies saw J.E. outside, went to J.E. in their marked patrol car, identified themselves, and told J.E. they needed to escort her home. J.E. ignored their commands. The deputies grabbed her arms. J.E. began “flailing,” spit at the deputies, and kicked another vehicle, causing a dent. The deputies placed J.E. in the patrol car. J.E. kicked an officer in the stomach. A juvenile wardship petition alleged misdemeanor battery upon a peace officer and misdemeanor resisting, obstructing, or delaying a peace officer. Mother reported that J.E. had previously hit her and threatened to kill her. School records showed J.E. was suspended twice for being physically aggressive and making threats toward staff and was disciplined several times for unexcused absences, disrupting class, using profanity, and being under the influence of marijuana. Mother testified that J.E. was 11 when she began living with Mother, having previously lived with her grandmother. Mother stated she never taught J.E. the difference between right and wrong and never taught J.E. to respect police commands. The court found that J.E. understood the wrongfulness of her conduct, sustained the wardship petition, and placed J.E. on probation. The court of appeal affirmed, finding sufficient evidence that J.E. appreciated the wrongfulness of her conduct, as required for minors under the age of 14. (Pen. Code 26).

In re J.W.-P.

Docket: A156550(First Appellate District)

Opinion Date: September 8, 2020

Judge: Burns

Areas of Law: Family Law, Juvenile Law

After police arrested their mother, 10-year-old J. and her half-brothers were found at a homeless encampment and detained by the Alameda County Social Services Agency, which filed a juvenile dependency petition. At a paternity inquiry, Mother testified that Father is J.’s father. Mother and Father lived together until J. was two years old. Father had participated in Nevada child support proceedings, acknowledged J. as his child, and was subject to a child support order. Father had regular visits with J. After the Agency filed an amended petition naming Father as J.’s alleged father, the court declared the children dependents of the court, and placed the children with their maternal grandfather. The court held a later hearing, ordered a legal guardianship by the grandfather, then dismissed the dependency. During the proceedings, Father maintained his relationship with J. and consistently stated that he wanted custody. Father repeatedly contacted the Agency and provided a birth certificate showing his name as J.’s father. Court-appointed attorneys represented Father but he was unrepresented during critical proceedings and none of the attorneys took action on his behalf. At the dismissal hearing, the court noted that no counsel was present on Father’s behalf and acknowledged that the prior proceeding, without Father's counsel present "was an error.” Contrary to Welfare and Institutions Code 316.2(b), and California Rule 5.635(g), the court clerk never provided Father with notice of the procedure he should follow to establish that he is J.’s father and to protect his parental rights. The court of appeal reversed the juvenile court orders, finding that Father was prejudiced by the failure to comply with the notice requirements.