ABOUT JAY B GASKILL
Jay B. Gaskill is a former criminal trial and appellate attorney (he is still a member of the California and Idaho Bars), who left his “life of crime” for more constructive and creative endeavors. He is now a columnist, writer and criminal justice expert, a lifetime student of law, ethics, crime, politics and the human condition.
His interests include music, humor, science, science fiction, the western wilderness, crime, punishment, good, evil, ethics, terrorism, war, peace, theology, politics and policy.
Recurring themes in his writing include: the never-ending conflicts between spirituality and materialism, between idealism and ethical realism, and between integrity and timidity. His fiction works are peopled with likeable heroes and recognizable villains whose struggles touch the same themes.
Mr. Gaskill has abandoned the Bay Area for a secure, undisclosed location in Idaho, where he is busy completing several books. He studied political science at the University of Washington, history at the University of Idaho; then he moved to California to attend law school. Beginning with law school, he was to spend several decades in California’s, Bay Area,
As a student at Boalt Hall (U.C. Berkeley’s Law School) during the anti-war turmoil years, young Gaskill was a patriotic Idaho liberal who soon felt like an embedded reasonable mind in a battalion of anti-patriotic lefties. Shocked at how the far California political spectrum ran toward the abyss, Jay focused on career and family. In due course, he was hired as an Assistant Public Defender by an erudite, gruff, pipe smoking libertarian, the Alameda County Public Defender, John Nunes. The Alameda County Public Defender’s Office was inaugurated in 1927 by the county’s prosecuting attorney, Earl Warren, who was later to become the California Governor, then the famous Supreme Court Justice. ACPD, headquartered in Oakland, is the nation’s second oldest institution of its kind.
Mr. Gaskill spent three highly rewarding decades as a criminal defense lawyer in the public sector, a career that was leavened early in his “criminal career” by working for a law firm in his former Idaho hometown. A story from that period (An Idaho Tale), originally published as an OP Ed, is reproduced below.
Jay Gaskill once became an “emergency” adjunct law professor at Hastings College of the Law in San Francisco. A criminal law professor, the former Judge Advocate General of the US, had quit over a dispute with other faculty members. The law school Dean immediately phoned Gaskill and asked him fill in teaching Criminal Procedure. Apparently Gaskill did so well that the disgruntled professor returned to his teaching position as soon as the term was completed. Years later at a San Francisco Symphony concert, a former law student of his stopped him to say, “You may not remember me, but your class was the best course I ever had in law school.” Over his career, Gaskill trained more than one hundred criminal trial lawyers. As an expert in the field of criminal trial and appellate litigation, his published articles and book chapters were widely circulated and read among the community of California criminal trial and appellate lawyers.
While embroiled in a months-long death penalty jury trial, Jay Gaskill was appointed to serve as the head of his department, the Alameda County, California Public Defenders Office, administering an annual budget of 20 million (38 million 2017 equivalent).
During the ensuing decade he supervised 120 trial lawyers, 30 field investigators, and an equal number of clerks and other support staff. Overall, he superintended the defense of half a million cases.
Over Jay Gaskill’s entire public defender career, was intimate, face to face contact with thousands of criminals (exceeding 35,000), amounting to a massive field study of the human condition at “the rough end.” In the process, he formed lasting, collegial relationships with judges and prosecutors (such as former District Attorney, D. Lowell Jensen, later head of the Criminal Division of Reagan’s Justice Department and Jensen’s two successors). Over the years, Gaskill established high trust relationships with law enforcement officials. He is the only official in his unique position who, on leaving the county service, was feted for his “assistance, guidance and cooperation to police services” by the Alameda County Chiefs of Police and Sheriff’s Association.
Gaskill’s articles, letters, and opinion pieces have run in publications diverse as The Oakland Tribune, The Economist, The San Francisco Chronicle and the journal First Things, among others. His web site, “The Policy Think Site” continues to attract wide attention.
Without any publicity or promotion, his running blog commentary on the California Scott Peterson trial (https://en.wikipedia.org/wiki/Scott_Peterson) won high praise from working journalists, attracted 40,000 readers, and a radio interview in St. Paul Minnesota.
His commentary on the Han Reiser case (https://en.wikipedia.org/wiki/Hans_Reiser ) was featured in a nationally televised episode of CBS 48 Hours. [More below]
Three opinion pieces authored by Gaskill supported the death penalty (to be very narrowly applied) as a grim necessity to save the lives of future would-be murder victims) were published about three years after Gaskill left office. For obvious reasons, this dismayed of some of his former defense colleagues. But Gaskill’s deterrence analysis was vindicated by a major statistical study, jointly produced by the American Enterprise Institute and the Bookings Institute.
Mr. Gaskill has argued hundreds of cases of all kinds to juries, judges and Justices of the Court of Appeal and the Supreme Court and remains an affiliate member of the Idaho Bar and an active member of the California Bar. He has participated as a moot Court judge at his former law school, sitting on international and constitutional law cases.
Having returned to a secure, undisclosed location in Idaho, where he has been very busy completing, several major fiction and non-fiction works are in the pre-publication stages. Meantime, he is writing local columns like this true account of an experience during hismearly Idaho practice.
The piece appeared in the Post Register, a regional newspaper for South-East Idaho:
JAILED FEATHERS, an Idaho Tale
By Jay B Gaskill
I was working in an Idaho Falls law firm, handling a variety of mostly civil cases. Fresh from Oakland, where I tried felony cases as an Assistant Public defender, I was in adrenaline withdrawal.
Then the new client showed up. His hair was pulled back in a bun. With his close-set eyes, sharp curving nose, and narrow face, he looked like a bird of prey. In fact, he was a falconer… facing a bird legal problem. Our new client (I’ll use a pseudonym, Burt Raptor) cherished his own cast of falcons. His hunting partners were among the fastest avian predators in the world. But Fish and Game officers had entered his property, roughly pulling four falcons from their cages. Three were taken, but a fourth took to the air.
Burt wanted his jailbirds returned, and I was to come up with legal solution. I imagined a writ of habeas “falconinae” … or “Give me the birds.” [Apologies to my Latin teacher.]
I hopped to the task. However, these were Peregrine falcons, an endangered species. But, as Burt said, “They were mine before the species was listed. I have records. Does that help?” It sure does, I thought, they can be grand-feathered in. What a lark. Instead of defending knuckle-dragging human predators, the terror of Oakland shopkeepers, I would be defending noble predator birds, the terror of local squirrels. The battle was on. I drew up a proposed release order, and prepared the supporting legal arguments. Then a judge was promptly assigned.
Justice prevailed. Burt came by the office the next day. “Thank you,” he said. “My three falcons are now safe...” He paused, frowning. “But can you get an order for the fourth one?” Burt explained that his fugitive falcon was carrying a transponder, its batteries almost dead. The judge quickly came through with a supplementary order. Now on secure legal ground, Burt went falcon hunting. His fugitive falcon came in, rejoining its cast at Burt’s place.
When I closed the case file, totaling costs and time, I realized I had consumed more billable hours than Burt could pay. There was one realistic solution. Now, this happened a long time ago, and the principals are past caring. I confess: I cut most of my hours from the bill.
When I first dragged my small family from California to Idaho, the rear view mirror revealed an orange smear hanging over Oakland like some biblical plague. My original Idaho hometown was a great place to raise children, but safe communities don’t generate many felony jury trials.
Eventually, when the Alameda County Public Defender offered to reinstate me, I notified my partners that I would be resuming my life of crime. I left Idaho, vowing to return. Years passed, trying cases for the innocent and not so innocent, raising children, eventually, supervising 100 trial lawyers, and fending off politicians. But nothing was quite as charming and satisfying as reuniting a falconer with his falcons.
SOME COLUMNS & LETTERS
Letter published in The Economist print edition 6-12-03 following criticism of Bush and Blair over the apparent failure to discover weapons of mass destruction mentioned as one justification for preemptive action…
SIR- the prospect of a huge risk doesn’t require a very high probability before triggering the duty to act to prevent harm. In defense of your courageous prime minister and our common-sense president, to concede even a reasonable probability that someone of Saddam’s malevolence had any programs for producing weapons of mass destruction justified an aggressive and timely intervention – particularly given Iraq’s permeable borders and shady associations. Anything less would have constituted foreign policy malpractice.
Excerpt from the Journal, FIRST THINGS
J. Budziszewski’s article is a cogent refutation of one key element in the conventional wisdom about the death penalty—the belief that Christian doctrine can never condone capital punishment for murder. Professor Budziszewski reminds us that established Christian tradition recognizes justice in the classic Torah-based model and favors individuated mercy, not blanket clemency. In effect, he argues that indiscriminate clemency for murderers perverts both justice and mercy. … Most people are governed most of the time by a combination of moral inclination, moral training (currently in decline in our culture), and the classic fear of negative consequences (punishment, which is now weakened by moral relativism). Without such consequences civilized life is doomed. For this reason, ethical realists know that the death penalty is a crucially necessary component of any system of justice.
P C FOG
Contemporary journalism has been infected with a special form of censorship driven by the fear of identification with a politically incorrect position. You’d think that most street crime is committed by faceless males, whose identifying marks and racial characteristics have been wiped away by some digital pixel smear effect, like those television shows where the headshot of the crime victim or informant is altered to obscure identity. This is PC Fog….
THE SAN FRANCISCO CHRONICLE
…. Trial lawyers quickly learn that certain human stereotypes are routinely used in jury selection because, bluntly put, they capture strong statistical tendencies. For example, some faiths tend to oppose the death penalty but don’t condemn drinking, while others tend to oppose drinking but not capital punishment. Yes these are only generalizations; that’s why they are stereotypes. But if you’re trying a death-penalty case or a drunk-driving case, you need to know these things. Also, some prospective jurors “lie,” in that they deny or conceal facts about themselves that make them look bad, things like “being unfair” or “not keeping an open mind.”….
THE OAKLAND TRIBUNE
DEATH PENALTY SERVES A VITAL PURPOSE
…In the latest lethal injection controversy, death penalty
opponents are playing chess: Move one was to press for lethal injection as
“more humane.” Move two was to press to mandate the presence of a medial
professional on scene. Move three was to get the physicians to back
out. Checkmate? Hardly. The goal is not to save a killer’s life, but only
to minimize his pain. San Quentin could get by with a vet.
….Oakland has reached the one hundred murder mark, but consider another number: As of Halloween, there were 95 homicides in the city and only 31 of them had been solved. Two thirds of the murders in the city of Oakland unsolved…. Crime yields to more concentrated resources and greater determination. Recent roving deployments of concentrated police resources produced temporary results. But another issue looms. Prison graduates live in two societies: among their “home boys” around town, and in prison, where their friends are doing time. Gangs flourish behind bars; and prison graduates are under-deterred. Neither the statistically improbable prospect of an arrest, nor the threat of a mere prison sentence is going to stop this group of criminals from pulling the trigger when it suits them. …
THE OAKLAND TRIBUNE
JUSTICE ROBERTS AND THE ROE VS. WADE LITMUS TEST
…. With or without another conservative vote…change is inevitable…. Roe actually permits states to bar abortion during the period of the pregnancy when the fetus is “viable” outside the mother’s womb. “If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.” Viability was presumed by Roe to occur during the third trimester of pregnancy. But that was in 1973. Fetal heartbeats are detected as soon as eight weeks after conception. As medical technology advances, fetal viability is being sustained earlier and earlier in the pregnancy. We can reasonably expect that advances in medical technology will allow a fetus to be delivered and kept alive closer to the first trimester than the last. So the technological clock is running, and the Supreme Court will eventually be forced to reconsider its guidelines in Roe. …
OAKLAND REAPING WHAT IT SOWED
At the current kill rate Oakland will have 120 homicide victims by Christmas. [We’re now a handful short of 100 Oakland lives lost to bullets, knives and assaults.] Oakland is reaping the bitter harvest of its neglect of the public protection infrastructure. …Violent crime has a relentless opportunistic quality – it exploits weaknesses, especially reduced police protection. Unchecked, it turns good neighborhoods into bad ones and transforms bad neighborhoods into war zones. ….You’d think that by now we’d have learned that maintaining security in places with large crime-prone sub-populations can’t be done on the cheap. When Oakland reached the 100 homicide mark last year, I warned in a “My Word” column that the defeat of the measure for 100 new police positions would have consequences. This March I pointed out that OPD, already suffering from inadequate staffing levels, could ill-afford the reduction of even one officer position. I warned that deeper cuts could lead to a catastrophe. Those deeper cuts were implemented…..This isn’t rocket science. …In the dark days of the Great Depression, FDR said it best: Among the greatest of freedoms is freedom from fear. This defines the one entitlement that trumps all the rest. It is the right to have the criminal law enforced in your neighborhood, rich or poor. No child or adult in Oakland should have to live in fear of a bullet, a knifing or a beating.
ABOUT THAT GERMAN CANNIBAL CASE
Most news junkies already know about the German cannibal, Armin Meiwes, convicted this month of manslaughter and given less than eight years by a German Judge for a premeditated torture murder in which the victim was actually conscious and videotaped for part of the butchery and cooking. I omit the details of Meiwes’ sickening conduct and ask: Should society give any moral or legal weight whatsoever to the supposed “consent of the victim” in this case (a man mentally disturbed enough to respond to an internet invitation to be eaten)? To do so would be to sanction authentic evil. … In any culture crippled by a facile and fashionable ethos of political correctness, evil is not to be confronted….
CRIMINAL CASE COMMENTARY
“Reading the Defense”, Mr. Gaskill’s running web commentary on the Scott Peterson murder trial attracted 40,000 “reads”. Here is an excerpt:
The Ghost of Griffin
Like an impressionist painting, the prosecution is beginning to add detail to a canvas that shows us an evasive, contradictory (and - dare we say it? – guilty looking) ex-husband whose fishing vs. golfing alibi increasingly looks like a homicide cover up.
We are now witnessing in real time the modern era’s latest legal phenomenon: the exploitation of a 1965 U.S. Supreme Court case, Griffin v. California (380 U.S. 609), by “celebrity” defendants. The so called Griffin rule has been trenchantly criticized by knowledgeable legal scholars, among them my former colleague, professor Gordon Van Kessel in his brilliantly researched Notre Dame Law Review article, “Adversary Excesses in the American Criminal Trial” (67 Notre Dame L. Rev. 403). Van Kessel is in a position to know how things really work in the criminal courtroom. After he and I served together as public defenders, Van Kessel has also served as a prosecuting attorney in San Francisco.
Griffin, in effect, forbids a prosecutor or judge to even call attention to the fact that a defendant has declined to testify in his own defense. All defendants have an absolute right to rely on the state of the evidence by exercising their 5th Amendment rights. But, until Griffin, they did so at the risk of having their silence used against them in argument. As Professor Van Kessel has pointed out, this “lack of consequences” rule tends to deprive the jury of the single most important witness in a criminal case, the accused, by encouraging defendants to rely on “the state of the evidence.” The Griffin doctrine has created a serious “game advantage” for those defendants like Peterson, “OJ”, and others who have access to the major media before trial where they are able to float defense versions and theories of the case without the risk of an effective cross examination…
Gaskill’s Scott Peterson trial commentary generated many emails from working journalists. Sample Comments:
From a reporter:
Wondering if you have a sec this afternoon to talk about jury selection in the Peterson trial. I’ve been in court every day, and have some numbers I want to run by you really quickly for analysis/comment. My number here at the courthouse is 6xx-3xx-xxxx.
Thanks a lot.
Courts and Criminal Justice Reporter
The San Mateo County Times
From an LA Television Producer:
I work for a television station in Los Angeles, and as a consequence am intimately familiar with what gets reported to viewers (as opposed to... dare I say it?... “Readers!”) these days. The insights gleaned from your postings (see http://www.jaygaskill.com/peterson.htm ) far surpass anything that may be learned by turning to the so-called “Fifth Estate.” ….
In the Hans Reiser case, an Oakland computer guru, was tried for murdering his wife. Nina Reiser had gone missing under suspicious circumstances. Eventually Hans Reiser was arrested and charged. Eventually, the murder trial went forward in an Oakland Courtroom without a dead body. Reiser maintained that his Russian wife was probably abducted by those nefarious Russians. It was a fascinating case, and Gaskill’s daily blog drew a large following.
CBS 48 hours gave extensive coverage to the case. In one nationally televised episode Jay Gaskill was invited to go on television for some case commentary.
Gaskill: “The 48 Hours crew had rented an entire ballroom in the Claremont, a famous Berkeley Hotel. I was ushered into an immense dark space surrounding a brilliantly lit circle, with furniture arranged interview style, mikes and cameras hovering overhead and just out of view. Having followed the case closely, I brought no notes. The conversation took at least 90 minutes, out of which about 12 minutes of program time resulted. The following transcript captures the moment when the CBS 48 Hours reporter talks about Defense attorney DuBois’ final argument. My actual screen time was longer, but after the conviction most of my remarks were edited out of the archives.”
From the CBS Archives:
When it's DuBois' turn, he tells the jury that Nina was
nothing more than a conniving Russian bride who was looking for a free ride to
America. And he reveals on the day before she disappeared, Nina was online
cruising the personal ads from men who were looking for sex.
Aside from sullying Nina's reputation, graphic personal ads suggest that perhaps Nina had a rendezvous with a mystery man, another possible suspect.
"Here's the best possible defense: she's dead and somebody else did it. It's Oakland. They have a homicide every second day," says Jay Gaskill, a veteran trial lawyer following the case closely on his blog. Gaskill says DuBois' argument that Nina ran off to Russia makes no sense at all.
But prosecutor Hora brings the jury back to earth by calling his first witness. It is none other than little Rory, just off a plane from Russia, accompanied by his grandmother who has decided Rory must tell what he knows.
"I thought it was important for jurors at trial to see and hear Rory in person and hear him say that he hasn't seen his mother," Hora explains.
Jurors hang on Rory's every word as he shows them this picture he drew just prior to the trial; Rory says it shows Hans carrying something big down the basement stairs.
"Here's a boy that has an image in his head of dad carrying a mom-sized bag down the steps. And mommy's missing," Gaskill notes. "What that means is on some deep psychological level, the boy is willing to believe that daddy killed mommy."
Asked if Rory might not have been coached by his grandmother, Gaskill says, "It might've been coached. It might not have been but the fact that he can have the image. He came up with that image himself."
Rory's testimony, his drawings, and a stack of heartfelt letters to Hans repeatedly asking 'Where is Nina?' are powerful evidence for the prosecution. In one of the trial's most dramatic moments, Rory calls his father a liar and says he no longer loves him.
The trial goes on and on. Jurors would hear four months of prosecution evidence.
[The defendant was convicted and eventually led police to his wife’s body.]
Legal Publications & Lectures
Consultant on the book Appeals and Writs in Criminal Cases published by Continuing Education of the Bar in 1982.
Contributing author for the book California Juvenile Court Practice, published by Continuing Education of the Bar in 1981 (chapter 3, “Pretrial Preparation and Attorney’s Role”).
Contributing author for the book California Criminal Law Procedure and Practice, published by Continuing Education of the Bar in 1986 (coauthor with Roderick W. Leonard of the Los Angeles District Attorney’s office of chapter 40, “Writs in California State Courts,” and author of chapter 49, “Representing Witnesses”). Author of chapter 37, “Felony Sentencing,” in the supplement.
Author of “Pretrial Preparation and Attorney’s Role” for the book California Juvenile Court Practice, published by California Continuing Education of the Bar, 1981.
Consultant on the book Appeals and Writs in Criminal Cases published by Continuing Education of the Bar, 1982.
Author of “Representing Witnesses” for the book California Criminal Law Procedure and Practice, published by California Continuing Education of the Bar, 1986.
Co-author of “Writs in California State Courts,” for the book California Criminal Law Procedure and Practice, published by California Continuing Education of the Bar, 1986.
Author of “Felony Sentencing,” for the 1989 supplement to the book California Criminal Law Procedure and Practice, published by California Continuing Education of the Bar, 1986.
Author of training publications made available to California lawyers by the California Public Defender Association (CPDA). Author of Continuing Education of the Bar Program materials. Author of articles on criminal procedure and litigation topics published for California lawyers by the California Public Defender Association from 1980-1991; ten articles remain in the CPDA resources catalogue.
Criminal Law and Procedure Lectures
By request of the California Board of Legal Specialization, author and grader of portions of the 1978 Criminal Law Legal Specialization Examination.
By request of the Dean of Hastings College of the Law, served as Adjunct Professor of Law, teaching Criminal Procedure 1981-1982.
Also served, at the request of the Dean, as adjunct professor and lecturer at Hastings College of the Law in the Litigation Skills program in 1983 in the College of Advocacy.
Served as a Moot Court Justice at Boalt Hall, lectured to advanced journalism and political science classes at U.C. on Criminal Procedure, and appeared on the District Attorney’s “Points and Authorities” Television program, a training vehicle distributed to Alameda County District Attorney offices.
Instructed Sergeant trainees at the Oakland Police Academy in lineup law.
By invitation, lectured on criminal law, advanced criminal procedure, and litigation topics for the California Public Defender’s Association (CPDA) and California Attorneys for Criminal Justice CACJ) from 1977 to 1991. Among his appearances: The Advanced Trial Advocacy Seminar conducted by the CPDA in Santa Clara, and a second Trial Advocacy Course in Redding; another program by CPDA in Sacramento; a Statewide Criminal Law Seminar conducted in Los Angeles by California Attorney for Criminal justice (CACJ); a lecture at the CPDA annual convention; a CPDA sponsored workshop in Los Angles ; a CPDA sponsored program in Advanced Criminal Procedure at Palm Springs, a CPDA Felony Sentencing Workshop and a CPDA sponsored lecture on Prosecutorial Misconduct.