The Blog

Alternatives to Tom Brower’s Homeless Hammering

Alternatives to Tom Brower's Homeless Hammering

This is a continuation of an article on the Huffington Post. Click here to read what triggered the solutions discussed in this article.

Representatives and Shopping Carts.

Arguing these carts are stolen property doesn’t understand the American economy. We know Foodland has shopping carts that are run into the ground; that they can no longer use for store purposes. What do they do with these carts? Keep them forever? Are they required to? They can sell them. Maybe cart owners donate them to homeless, so cans can be collected. Maybe they throw them out, where homeless people can save them from the trash, or buy them from junksellers.

Reduce, reuse, recycle.

I would suggest supermarkets sell or donate these shopping carts to the recycling businesses (for example, the one next to the old Hard Rock Cafe) so the recycling companies can lend them to homeless people to bring back cans to recycle. We reuse and recycle and we save trash from our landfills. People donate multiple thousand-dollar cars to help out charities. Why can’t homeless people use otherwise unusable carts to help recycle rather than fill up the Waimanalo Gulch? Seems like we solve about 15 problems with one stone. Less waste, more reuse of materials, more recycling (of bottles and cans and such). And better cleanliness (since the stores would donate old carts, the real disgusting carts get taken off the streets) and the stores get write-offs for donations and actually, free advertising as the homeless help reduce government spending by helping out with the recycling efforts.

 I see this as a win-win-win-win.

Of course, smashing stuff is more fun. That would be a net loss I suppose.

Sledgehammer and the train.

As we build the train, more and more people will need a way to transport goods they buy at big box centers, from their local transit stations to their residences. Maybe GPS-equipped shopping carts owned by the county, collected every night after the train makes its final stop might be a great consumer benefit. Basically every family in Japan has at least one bicycle equipped with large baskets in the front and behind to carry groceries. Honolulu doesn’t have that infrastructure yet.  As we look to the future, with greater public transportation and fewer parking spots for a larger number of people, nicer, high-end derivatives of what we call a “shopping cart” now might actually be a very useful, short-to-medium distance-carrying device.

Homelessness on the Mainland.

Homelessness across most of America is solved naturally. As snow falls, mentally ill and financially challenged start to search for help indoors. They receive medical screenings warm food and social services. This is the one benefit of cold weather. Honolulu needs to find a different solution. Since homeless are not going to come to us, we’re going to have to reach out to them. Honolulu was on the right track when we were supporting the community paramedics. I support this program 100%. Please read about it here. Definitely agree with the Mayor and the State’s “Housing First” initiative. This is how we lift people up instead of hammer people down. And, if faith based organizations want to provide a warm meal, or warm blankets as an interim measure, then that is okay with me. The State doesn’t need to pay for it, but it shouldn’t be inhibited as long as it is done ethically and with minimal debris left over.

Closing parks at 10:00 pm.

But the idea that we cede our parks either to homeless, or to nobody is anathema to me. A few months ago my wife and I were looking for a good spot to watch the meteor shower, and we realized every park on the island is closed after ten o’clock. Who does that benefit? Not my wife and I, who simply wanted to look at stars. Not the homeless, if they’re arrested, they don’t get services in jail, they get jail. They get out, and everything they’ve saved is gone. It’s like protecting your baby from fire by throwing her out the second floor window: ill-advised.

Change the law to Hawaii Opportunities in Treatment.

I propose Hawaii Opportunities in Treatment: HOT. Why don’t we require, as punishment, completion of a court ordered treatment/counseling program. If you get a DUI, you have to do a driving program. Let’s do the same for the homeless. Instead of how to drive defensively, we work on a resume. We build a list of services that provide basic boots, so our friends and family members finally have the bootstraps to pull themselves up by.  We keep sending these people to jail again and again anyway, instead, let’s require them to check into this treatment center on the way out of jail. Not for everyone, start small, test it, just like HOPE probation. And like HOPE probation, watch us become a model for national homeless treatment.


Can you get a DUI on a bicycle

Can you get a DUI on a bicycle


Another attorney pointed this out to me, seems very apt for today’s news. Here’s today’s news:

October 13, 2013 Woman killed on a bicycle

I hope she figures out which attorney to get.

Original post:

Can you get cited for Driving Under the Influence while on a bicycle?

Absolutely not. If your bicycle has a motor, you are on a moped, and the answer is YES, you can get a DUI on a moped, on a bicycle? Absolutely not.

It shocks me how many people think that you can get a DUI on a bicycle. Just this week I was with a group of attorneys who do a lot of DUIs, make a living on them. And one said to the group “Do you know you can get a DUI on the bicycle? It’s true!”

The group agreed. Probably to be more polite than anything. But one person even said that they saw someone convicted of a DUI! But you can’t, at least not the way the law has been for the last ten years. Let me explain how lawyers (should) look at laws:

I. Read the Law. Again.

The most useful skill I learned in law school was not in a criminal law class, but in a business law class. The teacher called in Close text interpretation, at least, I think that’s what he called it.

II. Close Text Interpretation

The rule we learn at the Public Defender’s office is this: “Re-read the law, every time.” Every time a new case lands on your desk, re-read the law, every time. You’ve done 1,000 DUI cases and there’s another one on your desk? Re-read the law, every time. There’s always something new that shows up.

III. DUI law

In Hawaii, the DUI law is called Operating a Vehicle Under the Influence of an Intoxicant.  Here we’re going to call it DUI, since everyone I know, even the judges, call it DUI. Most laws get one statute, DUI has evolved to have it’s own section of statutes. Any statute that begins with 291E have some relation to the DUI law.

a. The DUI law is HRS 291E-61

The definition of DUI is held in Hawaii Revised Statutes sec. 291E-61 and reads below:


A person commits the offense of operating a vehicle under the influence of an intoxicant if the person operates or assumes actual physical control


This is not the FULL text of the DUI law. This is just the charging section. This is the part that is relevant to today’s issue.  Actually, we can reduce that part to a shorter section:


Hawaii Revised Statute 291e-61 defines DUI as: A person commits the offense of operating a vehicle under the influence of an intoxicant if the person operates or assumes actual physical control


And here’s where the confusion lies:

Notice the first sentence: “VEHICLE” what does that mean? Notice most laws talk about “Motor Vehicle”. But we’re not talking about Motor Vehicle here. Why?

BUT before we get to the problem, let’s finish the close text analysis. The rule is Definitions, ALWAYS definitions.

b. Read the Definitions in HRS 291E-1

Hawaii makes definitions easy, they’re almost always (ALMOST!) in the first section of the same statute. here we find vehicle. The definition is found in Hawaii Revised Statute sec. 291E-1:

Vehicle is defined as (1) Motor Vehicle. (2) Moped; and (3) Vessel. The Definition of Vessel is a boat on the water.

III. Answer:

Vehicle means Motor Vehicle. Is a bicycle a motor vehicle? no. Case closed.

If you get drunk on a bicycle, don't drive into traffic.

YOU CANNOT GET A DUI ON A BICYCLE. (as long as it doesn’t have a Motor.)

Addendum: Answers are easy, why the confusion?

Confusion is more fun to figure out.

Here’s why, the Hawaii Revised Statutes criminal traffic sections define “Vehicle” no fewer than three times!

There’s the above.

There’s HRS Sec. 291C-001:      “Vehicle” means every device in, upon, or by which any person or property is or may be transported or drawn upon a roadway or highway, including mopeds and bicycles, but excluding toy bicycles, devices other than bicycles moved by human power, and devices used exclusively upon stationary rails or tracks.

And there’s HRS sec. 286-002:   “Vehicle” means every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, but excludes devices moved by human power or devices used exclusively upon stationary rails or tracks and mopeds.

And then I got tired of looking things up.

Three sections, three different definitions, SAME WORD. Notice, for 291C-1, both bicycles and mopeds are vehicles. For 286-2, both bicycles and mopeds are NOT vehicles. Whoever the attorneys were who believed that you can get a DUI on a bicycle, got their definition statutes confused.

Hawaii laws that can be enforced on both a bicycle and a car.

On closer look, the charges you CAN get while riding a bicycle include

  1. speeding ticket
  2. racing charge

On the other hand if you get a Hawaii Revised Statutes sec. 291-2 Reckless Driving charge while on a bicycle, now there is a problem, because which statutory definition of “Vehicle” applies, since there is none! Horse on the other hand is explicit. Guilty!

And that’s the long way to say, Drink and Bike is legal, just make sure your balance is good enough to you don’t land face first!

Deedy and Jury Deliberation: And the Prediction

Deedy and Jury Deliberation: And the Prediction

Jury deliberation in the Deedy case is entering its fourth full day, so what does that mean? The answer: absolutely nothing. The only thing it means is everybody who told you that this was an obvious case, that it’s a slam-dunk, that either Deedy is going to prison or the defense is obviously going to win, they are all wrong.

The First Five Minutes in the Jury Room

Often, juries work like this: They first go in and take a few minutes to an hour for everybody get comfortable. While they’ve been together for a month, and spoken about life and TV and the Warriors, they still haven’t spoken about the only thing that has brought them all together, the case. The first reaction is always testing the waters, not pissing the other jurors off. They are willing to give soft noncommittal directed suggestions of what they think is probably the right outcome. And while they are willing to say which direction they are leaning, very rarely, very rarely do they immediately assert one side is completely correct. That is, unless it is obvious that one side is completely correct.

What is interesting about the flow of this case is the way the general public, as the first testimony came out, said “oh wow guaranteed he’s guilty. How do you get drunk and then need to pull a gun during a fistfight? Until four days later, and all of a sudden, starting with the emergency room doctor Deedy wasn’t even drunk.  Then you get to the Security Guard, who all but canonized Deedy. And once Deedy testified credibly, it seemed to be universal that people were were just waiting for the “not guilty” verdict.

Anybody who told you that this will be a slam dunk-quick not guilty, all of those people were wrong.

Reporting on Jury Trials

Reporting on a Jury trial is naturally deficient. News can report what witnesses say, but it is impossible to report what juries believe. A newspaper can report the facts, but it cannot report on the credibility of them. Did the witness testify honestly or horribly? TV News can show you a six-second blurb, but credibility often turns on one mistake, one look, or one change in emotion. For that reason we who follow along the newspapers can read what people say happened, but we can never know the credibility of the story.

For Example

Remember in high school when you asked a friend why she started vicious rumors about you? She swore she never did. She told you who really did it,  the place and date, and the situation and who was there. You heard everything she said, but you didn’t believe a word. A newspaper would report what was said, but the only thing that is important is what was believed. Clearly, that cannot be reported accurately.

Long Deliberations

So what we are left with when a jury is out a minimum of three or more days, no matter how much evidence is accepted, is at least two people disagree about the outcome of what the evidence is. I don’t care how much evidence has been brought into a case, or how many days or how many experts or how many eyewitnesses exist. Juries may spend a day going over evidence just to be conscientious, but more likely they’ll decide quickly. But no one is being conscientious for three days when everyone agrees, a verdict that takes this long people are discussing what evidence actually came out. There are at least two different sides and people want to discuss what happened in that McDonald’s.

Will the Deedy Trial be a Hung Jury

The interesting thing about hung juries as there’s often no jury instruction set says okay to have a hung jury. There’s no jury instruction that says if you can’t reach a conclusion let us know, and the judge will let you go home and make everyone try again. Juries figure this out for themselves when they just can’t come to a conclusion. Is that what is happening in this case?

Is a hung jury something that benefits in the prosecution or defense. I posit in case like this a hung jury would benefit prosecution, and the reason why is to do another trial of this magnitude, Deedy would probably have to pay his lawyers as well as experts an additional fee. What that means is sometimes you can’t afford the same lawyer, so you get a cheaper lawyer for the second go around. In addition often you have to use the experts transcript, instead of the experts themselves. What that means is the next jury can’t hear the expert himself, or factor in the expert’s credibility on the stand.

Another important thing to factor in is, have there been any jury communications.


The Ten Commandments

Facts and Law in Jury deliberations

Jury communications are often not reported until later, because they are discussed in the back. But it is always interesting when jury communications get sent. It is the only method, after selection, juries can communicate with the court and the lawyers. Now, rarely are there jury communications about facts. For example, rarely will juries ask, “what happened, was it A or B”, and if they do, the judge will admonish them to look to their collective memory to decide.

On the other hand if the question is a question of law, ie “Is it okay for Defendant to defend himself IF ______?” That is a much more common jury communication. And this is a question of the application of facts to law.

Remember, juries have two duties, the first is to determine “What happened”, the second is to determine “Is what happened illegal as described by the law the judge has presented to us”.  Juries often do not disagree too heavily about the “What happened”. They heard the same evidence, they saw the same “tells” from the witnesses, and if one person is confused

Generally the way it breaks down is this, they won’t hang over what happened, they WILL hang over whether what happened meets the law. Put another way, they’ll all agree whether Deedy shot first, said “I’m going to kill you”, or kicked Elderts. But, if they hang, they’ll disagree on whether (for example) the kick is what triggered the fight, or Elderts grabbing for the gun is what triggered the need for self-defense.


Lord-a Mercy

Miss Cleo


Deedy Prediction

My prediction, we’ll get a Not Guilty verdict before noon. If the jury goes past 2:00 pm, the jury will be hung. And it will all be done today.

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Zimmerman and society and the future

Zimmerman and society and the future

Zimmerman and where we go from here (or hopefully – don’t)

We’re unhappy with the verdict. We wanted a verdict that closed our nation’s cultural chasm and let families, American families, let their children walk the streets safely at night. We didn’t get that.

We didn’t get that because it is entirely too much to ask the jury system to produce.

Here we’ll discuss a few changes people are clamoring for, and at the end I’ll ask for you to submit yours to discuss in the future.


There’s talk about the system being broken. Something’s wrong with the system and there needs to be a change. I want to address that for a minute because I that is very, very dangerous talk. There’s an old saying in the law that “good cases make bad law”. (“Good” here meaning big or interesting or juicy to a lawyer.) What this saying means is high profile or emotionally charged cases cause people to induce changes in the law that would affect that one particular, peculiar case the way it happened. In many of my other posts I’ve been resistant to law changes. Mainly because these law changes don’t consider the other one thousand, ten thousand, or one million other cases for whom the law was designed, for whom the law was working correctly.

Remember the “We’d rather have ten guilty people go free than one innocent person go to jail?” We all agree that fundamental bedrock of our judicial system when we’re the innocent person, and despise that saying when the guilty person is someone we abhor.

HINT: Not the right answer

There’s three things I could’ve gone wrong in this case three. Three moving parts that always get looked at when something like this happens.

    1. The judicial system or the court: was the court unfair in this case?
    2. The police: the police, or for that matter the prosecutor, do such a poor job that they were negligent in their duties and that caused a guilty man to go free?
    3. The law: is the law in this case so unfair that it needs to be changed?

One by one: I don’t think anyone is suggesting the court itself in this case was unfair. If anything the court was hard on the defense. That’s not a bad thing, if courts are generally hard on the defense, it’s in the nature of the work. A defense attorney is supposed to ask for more than he is supposed to get and the judge is supposed to tell them “no”. This case in particular the judge has been commended as to her adhesion to the law.

What about the police? Did the police do something wrong? Let me put my biases on the table: The police are always always ALWAYS my favorite scapegoat when I have a trial. The police didn’t investigate something, or look at something, or turn over that rock, or if they did, they shouldn’t have turned over that rock. And then I get turnt up. There are some suggestion that the police chief was fired soon after Zimmerman was not arrested in this case. I see all that as a distraction.

That only leaves #3, the law.

What’re we going to do about the law?

Answer: “I don’t know”.

Racial impact of Stand Your Ground law

Laws are going to change because of this. The infamous “stand your ground” law is sure to be looked at with a fine tooth comb. That law itself is not the worst thing in the world.  Basically it says you are not “required” to retreat from someone attacking you, that you may defend yourself. (Hawaii is considered a “stand your ground” state for all except deadly force. In Hawaii you can only use deadly force if you are unable to retreat, among other conditions.) There’s some discussion of “Stand your ground” laws being racist in application.  I can’t find fault with that study.

I’m betting money there are going to be a rash of new “failure to follow the lawful order of a 911 operator”. The problem with those being, that opens a can of worms with liability for the 911 operators being properly trained. They are not psychic, and are often encouraged not to tell you what to do in their training. It would also limit the number of people we would have working at the 911 call center. 911 should operate as a clearinghouse to get police and ambulance to where they need to be. It shouldn’t be a helpline.

The third option I’ve heard is that people want to change the burden of the self-defense statute. Currently only Ohio has Self-defense as an affirmative defense.  What that means is, the burden of proof (see my last post for a graphical representation) is no longer borne by the Prosecutor, but that a Defendant would have to say, “Yes, I did it but…”  Let’s understand what an affirmative defense is: at its very definition, its burden-shifting. Remember our fifth amendment, that no person “shall be compelled in any criminal case to be a witness against himself”, an affirmative defense turns that upside down. No one shall be compelled against themselves, “unless the government thinks you did it, now prove otherwise” is no where in the constitution and shouldn’t be written in there now. If the government can’t prove you guilty with all the powers of the police, the FBI, Homeland Security, and now PRISM, should we really make it easier for them?

Marcus, answer my question: What should happen?

If you guessed an increase in a call for gun laws, you are correct. The chance if it working is none. There’s no chance that stricter gun laws are happening after this if it didn’t happen after Sandy Hook. In fact, I wouldn’t be surprised if this doesn’t cause more people to buy guns.

Because it’s not safe out there.

Trayvon Martin may still be alive if he owned a gun.

Of course, he would probably be in prison.

Which begs the question, do you think the outcome would be different if the races were reversed? Let’s ask Matthew McConaughey what he thinks (start at exactly 4 minutes in):

I’m interested to find out what my readers think is the proper “fix” of the law. What law would you add or change to, well, to keep more people alive? And keep the right people alive, both of which are the goals of the law. Answer below, answer on twitter @landsberglaw, or go to the contact us and answer anonymously. Would love to hear your thoughts!


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Zimmerman as a trial explained

Zimmerman as a trial explained

I don’t think I was shocked by the verdict. Usually, by the end of opening statements experienced attorneys can predict, with reasonable certainty, the outcome of the trial. If you are heavily emotionally involved with the Zimmerman case, this article is not for you.  But I’ve been asked so many times what happened, that I would be wrong if I didn’t discuss, at least from a trial-work and rhetorical point of view what happened, so here you go (click more):

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Deedy surveillance video — Honolulu Trial

Deedy surveillance video -- Honolulu Trial

A quick update: late yesterday the Star advertiser published the two videos that the defense and the prosecution I wanted to put in the evidence on the Christopher Deedy case. Both of these videos are linked below. Watch on your own. After you watch the videos please read on to see what I think about them. And then, let me know if my analysis is crazy, or close to correct:

Hawaii News Now – KGMB and KHNL


Hawaii News Now – KGMB and KHNL

Deedy’s surveillance video changed my mind.

I don’t for any reason think this video exonerates Deedy. Yes, at one point he is on his back, but that’s not when the confrontation starts. The issue here is about the beginning of the confrontation. Does Deedy start or exacerbate the trouble in this case? Because if he did, he probably can’t claim self-defense. Put another way, was it legally allowed or him to do so? Watching this video I don’t think the answer is certain I definitely don’t think this is a slamdunk quote no”.

Another way to put it, “but for” Deedy getting involved, would someone die or be substantially injured here? That’s not exactly the standard, but that’s the common sense close version.

Deedy is not allowed to use deadly force if he precipitates the necessity of deadly force. The question for the jury is whether Deedy exacerbated the fight to that level disproportionately. On the other hand if Elderts reactions to what was going on was unreasonable, and it precipitated the deadly force,  then it may be that Deedy’s in the clear. This video doesn’t clear Deedy for me.

To me part of the problem in this video is the fact that while Deedy was supposedly  acting as a police officer, a female who he came to McDonald’s with is standing between him and Elderts. What that means is the female does not think he’s acting as a police officer!  If she thought he was acting as a police officer she wouldn’t be involved. She’d be in the back, letting him handle what’s going on. But she doesn’t let him handle what’s going on. She’s trying to hold him back. That means his own friend believes he is not in control of his own person enough to make the correct decision. His own friend doesn’t think he is in a state  to act as a police agent.

At this point the final evidence really comes down to Michel Perrine. Perrine is the guy who Elderts was purportedly bullying before Deedy got involved. So the question becomes: how bad was the bullying. If Elderts is needling Parrine, no way Deedy gets to come over. If Elderts is really scaring Perrine, who is really scared for his own safety, actual physical safety, then Deedy may be legally justified in the shot.

Very glad I am not a member of the jury in this case. No matter what, no one wins.

Shaming as strategy

So there is a new imaginary problem that people are complaining about on the Internet.  A summary of the complaint for context, but I really don’t want to engage in it. Understand, based on my calling in life I have no problem defending misguided people,

Racist Misogynist Poster

The Poster in Question

but what is happening is that a few people are angry that an insensitive person used specific imagery designed to “shock and awe” in order to get attention for his event. He used what is understandably called a racist image to promote a completely ordinary, otherwise uninteresting music show. He did this with the goal of getting exactly what he is getting: attention!

And to be clear, there’s no suggestion that he is consciously racist or misogynistic, simple that he is insensitive.

I’ve already talked about that more than I want to. As this blog has long been centered on *how* to argue, or *why* to choose certain rhetorical strategies more than *what* to argue, the interesting part to me is the techniques in the arguments, not against the racist, misogynistic poster creator, but against the people who say “Racism?  I Just don’t see it!“  I want to talk about the shaming of the people who are simply saying “it’s art”, “it’s stupid, not racist”, or “it’s really unimportant”. Because the argument against these people spueaking is very very scary to me. what’s more so, it is much more frequent than I imagine it should be.  Look at these screen captures so I don’t take anything out of context (to be clear, these are two separate comments — click more):



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Christopher Deedy, George Zimmerman, and Opening Statement Strategy

Christopher Deedy, George Zimmerman, and Opening Statement Strategy

Today the trial of Christopher Deedy started with their opening statements. To listen to one side, he was a law enforcement officer protecting an innocent. To believe the other, he was a drunk haole initiating and escalating a confrontation. Luckily today I was able to watch most of the opening statements of both the Prosecution and the Defense. The purpose of today’s blog is not to regurgitate their arguments or decide who is correct, I’ll leave that to other outlets. The purpose of this short entry on my website is to talk about why they Prosecution or Defense chose to couch their arguments in certain ways.

I want to make clear from the outset, if you’re related to either side or invested in either side winning, this article is NOT for you. It is not meant to be a critique of the merits of the case or about who is correct. It’s meant to explain to someone not knee deep in trial work why an experienced attorney would argue things a certain way.

That being said, as always, let’s begin with a story: (click more for the rest)

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Honolulu 911 App

Honolulu 911 App

Honolulu 911 calls go like this: Your heart is racing. You either witness, or suffer, an illegal activity. You’re nervous, everything is coming at you. You manage to get to the phone, often your cell phone, hit the numbers and as the quickly pick up you blurt out your narration of the facts and they say “so do you want the paramedics or the police department?”

The first response doesn’t even pretend to care about what’s going on.

Then they connect you, and then they start asking you questions. 5 seconds, ten seconds. Enough for a crime to be committed, for people to escape. More importantly, enough time for the attacked to swat the cellphone out of your hand. By talking you draw attention from the criminal to yourself as the most dangerous person in the room. You’re the one bringing the police. The most dangerous outcome for society is when it is more rewarding for us to protect ourselves than each other. That’s the endpoint on the road to anarchy.

And that’s not where it stops. THEN they start asking you questions: “Where are you? What does he look like? Tell me more? What did you say? Could you spell that?” I’ve listened to literally hundreds of 911 calls. It is like they are trained to keep you on the phone FOREVER. When the best thing by far is to say “Okay, run.” They want to ask questions until they are blue in the face.

You know, when you’re hiding in the closet and trying to be quiet, the state doesn’t even accept text messages. DUI attorneys accept text messages. I’m hoping the Government becomes at least as advanced as them.

Honolulu 911 Solutions

By now hopefully we realize the way we operate is not to only point out a problem, but to offer a solution. So here’s the solution, the Honolulu 911 APP! Clearly, in our society of cellphones and smartphones. Of Galaxies and iPhones and HTC and SONY there is no reason we should still be using 911 technology from Alexander Graham Bell.  Now what follows is designed for Honolulu 911, but really it could work for any wired metropolitan city.

Start with the big three:

Who, where, when

  1. The message can automatically send the phone number, and name associated with the phone to whoever receives the text messages.
  2. Yelp knows where you are. AroundMe knows where you are. GoogleMaps knows where. Clearly this app could send your location.
  3. And the exact time you sent it would log in the record.

and the big three are taken care of!

Precise information for Honolulu 911

Clearly there’s more precise Information that needs to be told to the officers.  Two things happen. ONE, we decide what that is in advance and we can put that ON THE PAGE, that minimizes time to process the information. Already after the case we ask witnesses to fill out statements and ask particular questions

911 Speed

If we really sit down and think about it, for many, the speed of typing on the phone has long surpassed the the speed of talking, answering questions, and processing information. Watch any kid send on a phone three sentences of info (or three paragraphs) and at the same time say the same three things and ask the next person to process it and filter it into the right categories. The typing will win every time. And these are our next generation of witnesses!

Outlay of the 911 App


911 App Honolulu

First, look at the top three buttons:  Police, Fire and Ambulance. These are the big three and they’re clickable. what that means is, you can request one, two, or all three.  No information is sent until the SEND button is pressed in the lower Right corner. These buttons are clearly not binding on the dispatcher who would respond to the message, but merely advisory. This is included since the very first question you are asked when you call 911 is “Police or Ambulance”. A large part of the purpose of the app is to get around the lag time it takes to process that first question and direct you the right way. Especially

when for very serious crimes the answer is YES.

Then we move to the second row of Honolulu 911 App buttons

The second row is our optional buttons. These are designed to help whoever the dispatcher is give more information to whoever the first responder is going to be. While not mandatory, these are the helpful questions that would keep you on the phone for a thousand years The second row first includes a spinner that lays out a number of different potential reasons to call for an emergency responder.

These are just advisory, and broad messages, clearly the police would need to decide on the final list. I would point out, maybe 10 should be the maximum. We don’t want people getting lost in lines of words they need to bifurcate.

App Slider 911 Honolulu

Photo and Sound Clip are a little more time consuming, which is why they are optional.  Clearly Photo is important. Since much of the thought behind this app is to reduce words and processing time, and one picture is worth a thousand words, the picture option needs to be present. Imagine the benefits to having a picture of a. the scene, b. the offender, c. the victim, d. ANYTHING. Currently the design is one picture per message. If you need multiple pictures, use multiple messages.

Sound Clip is if you don’t want to type or are poor at typing or if the actually sound of what’s happening is most important.  Imagine if, during listening to your neighbor’s husband threaten her, you were able to record the threat and then did not have to actually appear in court to testify. Imagine if, during the heat of passion, you could witness by just recording the occurrence and sending it in.

I would suggest 1. the recording be processed the same way Google Voice processes their messages in a sense to get a typed version instantly. But also 2. It is preserved digitally as a sound file, in order to be used affirmatively in a prosecution. A voice recording is even better than a picture when it comes to independent  verifiable evidence. It is very hard to say that a recorded threat never happened. It is very hard to say a police officer told you to record a certain statement (where it is very common to say that on a written statement. “I am willing to prosecute” anyone?)

Finally the third row: A text box and a SEND button. The text box is the same as any other app you can write in. You have the keyboard, on the iPhone 5 or equipped phones you can type via voice. And the SEND, here shown with a little envelope signal. In the time it makes to hit three clicks, someone has your location, information, and identifying factors they need to initiate a life-saving procedure. And that’s what every step of this conversion needs to be about. What can we do to save more lives.

Evidentiary rules

When I first proposed this solution the pushback I immediately got from people in the know is “How does this get around the Rules of Evidence? This is all excludable evidence.” Which is a valid worry, but let’s answer it.

  1. It’s not. It’s clearly all “present sense impression” and admissible the same way any Honolulu 911 call would be. In fact, it is more admissible, since a 911 call includes a government employee asking questions. The App in this case would by an uninvited communication, and obviously an excited utterance.
  2. Who cares! 911 is about saving lives, not catching criminals. That’s what it has to be about. It has to. Let’s not forget that.


Honolulu 911 App: In Closing

Now I don’t have the computer background to actually program this APP, but I have the legal experience to say what is necessary and what is extraneous. I suppose the next step is asking the Police department, or the city, or the State to get on board with some financing.  Or maybe just a computer programmer somewhere who wants to go a good deed and make things smooth for the next generation. Or if doing good things is not persuasive, maybe someone who just wants their code to take over the world. You want to talk about disruptive, explosive growth? Think about it, this is an App that should really come standard with every phone.This app is coming soon, who’s going to make it. Or make it well?


Punishment in Hawaii – Laws and Trends

Punishment in Hawaii - Laws and Trends
“We can and should do better. But “doing better” doesn’t mean simply focusing on social services and systemic reforms and ignoring the need for punishment. It means using punishment intelligently, which means using it as sparingly as possible but also as much as necessary.”

Punishment in Hawaii

Punishment in Hawaii is heading the wrong direction, is an opinion I’ve long maintained. So when I woke up today to an article talking in depth about punishments that largely mirror my own views I was excited. Everyone I know in the system who takes time to talk to criminal defendants comes to one conclusion early on: To a person in prison, there’s not much difference between ten years and twenty years. It is all unforeseeable time to them. Quite frankly many of them are surprised to live as long as they have. When you grow up surrounded by gang members, prison is simply a stop on the road to expected early death.

So why do we insist on keeping our children in prisons until they become our fathers? Grandfathers?

No one is denying crime exists. Or that real crime deserves real corrective punishment. No one disagrees that when other people on our island hurt or steal or trespass against us they need to be taught, or re-taught, that such a thing is not allowed. Whether by fine, by community service, through classes and counseling, or through incarceration, talking softly only works when someone is carrying a big stick. A few days in the judicial system and you realize talking loud never works.

`“Viewed from the perspective of deterrence, long prison terms are a bad bargain: The last 15 years of a 20-year prison sentence start five years from its beginning, a period distant enough to be beyond the planning horizon of the typical armed robber. And those long prison terms are no better viewed from the perspective of incapacitation—the purely mechanical effect of preventing crime by keeping the criminals locked up… Thanks to “three strikes” laws and absurdly long terms for drug dealing, the average prisoner is now in his (or, much more rarely, her) mid-30s while the average new crime is committed by someone in his early 20s. That’s a very costly mismatch.”

Inherent Worth in the Criminal

The first thing we have to agree upon is that there is some inherent worth to society of these incarcerated people. Let’s be very clear, we’re keeping them alive for a reason. If there is no inherent value to society in our inmates, they need to be killed. Period. We’re investing our time and dollars because we want something back from them. Maybe work, maybe intelligence, maybe just love and support for their families. So there is something there. And if there is something there, our next question is, how can we maximize the utility of whatever we want from them. How do we do that for punishment in Hawaii.

Is it locking them up until forever and a day? Well there’s different thoughts, let’s look at a couple:

Different punishments in Hawaii

Prostitution and punishment in Hawaii


I’ve talked all of us blue in the face with what I see as the problems with the proposed prostitution amendments and how they will over-punish for prostitution. About how they take a crime, being a John and want to increase the punishment ad nauseum. I’m slightly surprised no one has suggested thumbscrews yet for men so brash as to ask a woman, dressed for prostitution, how much she charges. Part of the question is what is the social utility of not only branding these men with the criminal seal, but also requiring them to miss 30 days of work, lose their job, lose their means of supporting their family, and have to explain to their children where they went.

Understand, this is not a deterrent unless they know about this. Know about this before they got drunk and stumbled back to a hotel and on the way back an attractive female dressed in sex approaches them and turns out to be an officer. And yes, that is quite a few cases, not the exception.


And remember equal protection and women’s rights? Every time you raise the penalty for men, guess what, you raise the penalty for women. And there is one thing law cannot do, erase the 2000 year old social stigma in Christian societies on the prostitute. These laws will have, at the top of every resume forever, a brand that says she carries a prostitution charge. And, when she gets out of jail, and the pimp is waiting, do we think he’s going to give her credit on 30 days of payments. She gets beaten to make up the money.

No one who asks to increase the penalty for prostitution has any compassion for prostitutes. Period.

New marijuana law and easing punishment in Hawaii.

Great Marijuana in Honolulu

Let’s talk about the opposite issue. Currently the debate in Hawaii is whether we decriminalize marijuana. The argument being that somehow people “getting away with” smoking marijuana is “getting one over” on society. But the question goes back to the basic utility of what should be allowed in America. Or more importantly, what should be allowed to stop your growth for the future. As if people who smoke marijuana, as minors, cannot grow up to be anything important.

Of course they can. But should the failure to avoid arrest be enough to stop your admission to college, Harvard Law School, even  the Presidency? Hawaii’s movie in the right direction. Stop ending lives prematurely by marking people with a criminal conviction for something so manini.

The secret about most crimes:

“The progressive tendency is to fixate on the plight of those punished rather than the plight of those victimized, though of course these are often the same persons under different labels or at different moments.”

Ready for the secret? Almost all felony trials in Hawaii are over drugs. Very rarely do we see a case where the complainant is virgin white. People learn to be bullies by being bullied. People learn how to steal cars because someone who is successful at stealing cars shows them how to better their life. I became a lawyer because I watched a lawyer save my fathers life.

 The Right direction: HOPE in Honolulu

At this point in the essay, I was thinking, Mark Kleiman would really like J. Alm’s HOPE program. And then I read the next paragraph:

“HOPE: The obvious (but hard-to-administer) common-sense alternative is to make the rules less numerous, the monitoring tighter, and the sanctions swift, certain, and reasonably mild, and to clearly tell each probationer and parolee exactly what the rules are and what exactly will happen, every time and right away, when a rule is broken. Mildness—or proportionality, if you like—is essential to making the threat credible, and severity turns out to be unnecessary. Experimental evidence from the HOPE program in Hawaii showed that two days in jail is as good a deterrent to drug use as six weeks, as long as the two days actually happen, and happen every time. We don’t know yet whether a day in jail, or a couple of hours in a holding cell, or a weekend of home confinement, or a week of a 9 p.m.-6 a.m. curfew, would do the trick, but we ought to learn.”

I wholly disagree with the idea that it is hard-to-administer less rules. In fact the situation is much easier than having every violation require a long complicated penalty. But the we can’t argue with the facts and the science. If we can get the same punishment from two days of jail that we can with six months of jail, keeping someone in jail for six months is not only inhumane, it minimizes social utility.  With luck HOPE will increase use across the island.

Read more about hope here

Let me close with a story.

Whenever we talk about proportionality and punishment in Hawaii I tell this story. Now, it’s a story about a loss, and I don’t normally tell those, but I’m honest as much as you can expect from a lawyer so I’m going to be honest about this one:

It was a harassment case, short, one hour trial that resulted from a domestic violence situation between a couple with two kids.  In the State of Hawaii, think of harassment like an “assault” where no one gets hurt. Just someone touches another person in a way they shouldn’t, pushes them out of the way or pokes them annoyingly. Like that.

Well the basic defense was, the guy just wanted to get into his car. The female wouldn’t move, he moved her out of the way. There was a question about how hard it was and whether it was warranted or not, but the when the judge brought down the gavel he said “GUILTY”. Man, I hate that word when I’m the defense attorney. And I was angry, I didn’t think he was guilty!

Gavel Punishment in Hawaii

But then the judge said something else, very quickly. “SENTENCE: $100.”

“WHAT!” the Prosecutor and I both yelled out. A conviction for a case like this comes with jail time. He harassed the mother of his kids. We’ve been trained to expect at a minimum a week.

The Prosecutor went in “Judge, we need jail. At a minimum anger management and domestic violence!

“Nah,” the Judge said, “He feels bad. It’s not going to happen again. It was just that one particular situation.”

And I thought to myself wow, I guess he is about one hundred dollars worth of guilty!


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Hawaii Criminal Defense: The Legal Blog

Issues in Hawaii Law.

Below is a collection of Articles I've written about Hawaii law.  Most are about criminal defense, Honolulu trial work, or future legal trends. Courtroom experience is probably the most common.  Others are comments on local or national law.  Hopefully there is something for you to find and enjoy.  If nothing else, you'll see the way I feel about certain issues, and the thought processes I put into legal problems we solve.

And some stories are just too funny NOT to tell.......

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