How Cops Think
Scott Greenfield, the New York criminal defense attorney with the Simple Justice blog, provides today two interesting examples of how cops think. Or don’t, as the case may be.
Fresno County Sheriff Mims provides her own example.
234 Years
Today is the Fourth of July. Independence Day. We often think of it as America’s Birthday. But it is not really the Birthday of the United States; it is closer to the birthday of the colonial confederation that would give rise to the the “United States” of the Articles of Confederation in 1781 and to the re-constituted United States — she of the infamous Constitution of the United States — some 11 years after the signing of the Declaration of Independence. The First Continental Congress, consisting of 12 of the 13 original colonies, predates by two years the Declaration of Independence, which was signed by the Second Congress.
How terrible the Terrible Twos were for not-so-good King George III. How wonderful the blossoming into young adolescence was the final form of our constitutionally-founded nation. But we are old now. The nation suffers from a kind of collective Alzheimer’s as we celebrate our two-hundred-and-thirty-fourth “birthday.”
Our Founders, those who gave birth to what has been unarguably the greatest nation on Earth — though one may doubt whether we still deserve that title — were a rebellious lot. They would not have tolerated a police force that makes things up as it goes and almost always what is made up is contrary to law. They would not have stood for a police force which, under the guise of making us safe, takes over our neighborhoods, placing everyone under house arrest and threatening the very safety they claim to be protecting.
This, by the way, is exactly what happened in the Tower District in Fresno less than a week ago. As one eyewitness wrote to me:
I live in an attic apartment on [a street in the area]. The home has a separate, gated entrance that leads to a small yard and a set of stairs that lead upstairs to my apartment.
Ghetto bird flew overhead for over 15 minutes before I truly paid attention. When they started flashing in my windows, I looked outside and realized the street was blocked by 8 police cars. My downstairs neighbors were having a get together, and were still outside. They were ordered to get inside their house. Two out of three armed suspects had been apprehended earlier. The third was hiding in bushes that divide my yard and the next door apartment complex. Now, [a friend of the person who wrote this], who lives downstairs is as protective of me as his sister, who lives directly behind me. He called me and told me what was going on, recommended that I enter his house thru the back door.
Big mistake…I opened my door to walk downstairs, only to be screamed at that there was an armed and dangerous suspect outside. The helicopter immediately shined on me. I was not given any opportunity to speak. I closed the door and notified [my friend] that I was not allowed to walk outside. He had been involved in a “discussion” with an officer earlier, when he went outside on his porch to smoke a cigarette.
Thirty minutes later, it was still going on, except they are now on the megaphone, informing the “suspect” that he needed to surrender. Officers “see” him and he wasn’t getting away. At that point, my windows were open to overhear the situation.As I was being “highlighted” I walked to my window, to peek outside where in sync, three officers pointed their guns at me and another waved for me to get away from the window.
Now, I can not recall exactly, but before I got to the window, only one officer had his gun out. The others followed when I “scared” them by looking outside my second story window.
This is the world in which we now live. Yet the lack of any appreciation for our Constitution is not the only difference between us and our ancestors. They would have rebelled. Those officers in the street would have found themselves under fire if they tried to corral the Founders of these United States “for their own safety.”
Our Founders would have realized the truth: there was more danger from the police locking down a neighborhood than there was from the fact that an armed gunman had run through it.
I am not afraid to live in the Tower, I am afraid of the “knee jerk” reactions from our FPD.
I had my cell in hand to film the event, or at least photograph, but earlier in the week, Kendall Simsarian had tweeted against questioning officers, or recording them. So, with the guns in my direction, I took the safer route!
I do not even know if the third suspect was even caught.
For most of the life of the United States, we lived by a set of values enshrined in the Declaration of Independence and a set of rules enshrined in the Constitution which created these United States. Today, the values are but buzzwords; the rules have become, at best, guidelines — a means for criminal defense attorneys like me to try, usually unsuccessfully, to rein in the governmental abuses of a police force run amok.
I say this with sadness more than my own sense of rebellion. Nobody — not even we much-maligned criminal defense attorneys — wants people who hurt other people to wander our streets unchecked. As law student and aspiring prosecutor Laura McWilliams put it,
No one wants an innocent to be hurt; nor does anyone want a guilty individual to commit a future crime. We all live in this society….
Yet as we approach 234 years of age — 234 years during which the forces of “power” have hammered away at the rebellious spirit of the Constitution meant to limit power — criminal defense lawyer Mark Bennett responds to Laura:
[T]he system is out of balance. Convicting the accused is too easy (else innocent people would not go to prison) and sentences (especially under guidelines regimes) are too harsh. If there is the possibility of the government killing someone for a crime he didn’t commit, the train has gone off the rails.
The problem, as Mark sees it — and I agree wholeheartedly — is this:
One reason that the system is so badly out of whack is that the criminal justice system is viewed, even by law students, as a tool to protect not only our safety, but also “our collective morals.” The protection of our collective morals—the mythical province of aspiring theocrats—leads to the condemnation and prosecution of conduct that threatens our safety only tenuously, if at all.
Our legal system is not about “collective morals.” It’s about power. If you don’t believe me, take Jeff Gamso’s implied advice. In writing about the unexcitement, the safeness, of the nomination of Elena Kagan — “about as non-revolutionary a choice as there could be for the [United States Supreme] Court — he noted:
I want a lawyer who’s actually practiced law. I want someone who’s stood in the well next to some poor person charged with a crime or victimized by the police or an unfeeling government agency or a major corporation. I want a person on the court who knows what it means to stand up for the Bill of Rights at some risk. Someone who actually knows something about risk.
But as Paul Kennedy, blogging at The Defense Rests, says,
While we’re at the beach or cooking out, watching a baseball game or fireworks, most of us have completely lost sight of the significance of what took place in Philadelphia back in 1776 when delegates from the colonies risked their lives by signing their names to the most revolutionary of documents.
This was driven home when a man asked me where he could get a copy of what we were reading. He seemed shocked when I told him it was the Declaration of Independence.
Risk? What risk? We have become a risk-averse nation. And to avoid risk, we have to limit the actions of individuals who might not agree to go along with the status quo. Individual liberties must be curtailed, lest individuals do something that puts the nebulous rest of us — “society” — at risk. Thus Gideon points out:
The concept is dying a quick and painful death. It took only 200 odd years for the pendulum to have shifted completely in the opposite direction. By attrition, or force of sensationalism, or crowdsourced fear, the line drawn by the Constitution has turned around and is now facing those very individuals it sought to protect. The idea of individual liberties is so foreign to most, that comes as a surprise to many that the founders fought and fought hard for them.
The concept Gideon is talking about pertains to
the rights of individuals – all individuals and checks against the power of the large governmental entities. The Constitution drew a line and on the site that was protected were placed the flesh and blood individuals, the citizenry and on the side that was being warned and whose authority was being severely limited was the abstract, nameless, faceless Government.What a beautiful concept: we are individuals first and as individuals, we have rights that will not be subordinate to those of an ever-changing abstract concept.
A beautiful and dangerous concept. A concept that disallows a police force the power to shut down entire neighborhoods and threaten the inhabitants in order to prevent the most heinous of consequences: a suspect who, however temporarily, gets away.
Thomas Jefferson, a principal drafter of the Declaration of Independence and third President of the United States, once declared the benefits of a citizenry ever-ready to rebel against its government. “God forbid we should ever be 20 years without such a rebellion,” Jefferson wrote.
Today, as we celebrate 234 years as a country launched by the Declaration of Independence from tyranny, my own spirit continues to resonate with that exemplified by our Founders. Like Norm Pattis,
I am an American by birth, and a lawyer by choice. Hence, I have taken an oath to uphold the Constitution and laws of the United States. But the promise of these laws sometimes rings hollow in my ears. When I read the Declaration of Independence, I am inspired by a hope that seems unredeemed. The heady days of a colony breaking from a distant overlord are long-since past. We now have our own lords, and they are no longer distant. Where do we now turn for a renewal of the spirit of liberty?
I vote that we all turn to the Declaration of Independence. And there’s no better day than today, the commemoration of the day it was signed by those who helped fight and die for its ideals, to read it and learn about its history.
The Scarlet Letter & Other Tales Of Woe
A couple of days ago over at Probable Cause: The Legal Blog with the Really Low Standard of Review, I alluded to the fact that ideas for blogging come to me faster than I am able to keep up. Although I don’t get nearly enough time to write, I’m constantly sending myself email messages from my phone saying, “blog about this!” or “blog about that!” Then when the time comes, I feel almost overwhelmed with all I want to say and have difficulty deciding how to focus.
Today is such a day.
The War on Rights
Well, I’m sure you noticed that this place you’ve arrived at is known as “Fresno Criminal Defense.” So I’m also sure you’re not expecting me to write about the War in Iraq, or Afghanistan, nor will I — as I did yesterday — have anything to say about the Mexican-American War, although actually all those countries have some kind of tie-in with the War about which I will write: a War we are losing in every possible way.
A War, in fact, which we cannot win. Because to win, you see, we’d have to be something other than what we are…
A Modern Professional Police Force
Four years ago, Justice Scalia of the United States Supreme Court laughingly suggested that “the increasing professionalism of police forces” meant that the deterrent effect of the Exclusionary Rule the courts had previously applied to violations of constitutional rights, particularly the Fourth Amendment right against unreasonable searches and seizures, was not really necessary anymore. (See Hudson v. Michigan (2006) 547 U.S. 586; ignore the fact that Scalia had to twist the source he relied upon to arrive at his conclusion.)
“[M]odern police forces are staffed with professionals,” Scalia said.
If Fresno police chief Jerry Dyer gets his way, well, if this ever was true — and I seriously doubt it ever was — it certainly will not be going forward.
A Jury of His Pears
No, that’s not a typo in the title. I’m paying homage to the Fresno Bee’s latest story about “juror misconduct.”
Frankly, I’m grateful that Pablo Lopez is a Fresno Bee reporter, and not a judge, lawyer, or juror on any of the cases about which he reports.
Judge Oppliger: Living the Nightmare
I struggled, picking the title for this article, briefly considering “Much Ado About Nothing.” Then I decided to play off a quote from the story itself.
But before I start, I want to offer a shout-out to a new blogger. So far as I know, he becomes the second law-focused blogger (after me) in Fresno. (If anyone knows others, drop me their info and I may add them to my list.) Terry stopped me on the way out of court today, although he got my name slightly wrong: he called me “Blogmeister.” He said he wanted to start a blog, but wasn’t sure what to write about. We talked awhile and I gave him a suggestion, saying I was planning to write about it also, and encouraged him to join the party. Here’s the post he wrote after we talked.
Welcome, Terry!
With that out of the way, what follows is my riff on the story.
Slashbucklers
Recently, the Fresno Bee reported that the “S.F. crime lab [was] overwhelmed.” (Terry Collins, “S.F. Crime lab overwhelmed” (March 31, 2010) Fresno Bee, p. A9.) The link, by the way, provides the same story as the print version, but dated a day earlier and with a different title.
A couple of days ago, the Visalia Times-Delta, which is apparently a newspaper intended as a local daily equivalent to the National Enquirer, or some other piece-of-crap rag, trumpeted the complaint that a new “[l]aw frees some violent inmates.” Of course, you can’t completely blame the Times-Delta for the sensationalism on this story: it’s a slight modification of the headline accompanying the online version of the yellow journalism of the AP story. Like the Bee story, by the way, the online AP story is dated one day earlier than the print version.
Both stories demonstrate the effects of budgetary meltdown; both hint, at least inchoately, at the cause: too many crimes (thus too many criminals) and all our money is being spent on prisons instead of providing education so people will be less likely to commit these crimes. This is a non-sustainable path to anyone’s idea of a better society. We simply cannot keep building and staffing prisons, no matter how badly we want to create new jobs.
The big problem is that the Slashbucklers, who aim to deal with the problem by increasing spending on law enforcement, crime labs and prisons (but not lawyers for the indigent or more judges) instead of schools and other “social” programs, are only going to make it worse. Inevitably — and this is why I’m calling them Slashbucklers — they will bring all our systems crashing down.
Exoneration by Association
A Letter to the Editor of the Fresno Bee finally forces me to write a post I’ve been deliberately avoiding for at least two weeks now. It’s not that I don’t want to talk about the problem the letter addresses. It’s that the case the writer addresses is, to my understanding, still wending its way through the system; I know the attorneys handling the case; and I haven’t wanted to write anything that might — and I stress might, because I’m such a small fish in this pond — have an impact on the outcome of the case.
The Letter, however, requires a response.
Complexity, Simplicity, and the Quest for Perfection
Okay. I don’t know how this is going to turn out, but some days ago, I promised that I would elucidate my comment about complexity, simplicity, and the quest for perfection. At the time, I alluded to its being connected with how I became a criminal defense lawyer, which is what the post from the other day ended up being about.
These three concepts are at the core of the problem with our modern system of jurisprudence. They aren’t alone in constituting that core — but, then, that actually just reinforces the point of one of them: Complexity.
Still, if we could get a grip on the proper balance of these three concepts, we’d go a long way towards improving our system. We might even begin, again, to understand the meaning of Freedom. Maybe even Justice.