A Tuesday night stabbing on Fresno’s Christmas Tree Lane, which took place near dozens of strolling families, is prompting event organizers to re-evaluate the long holiday tradition.¹

But, hey, it’s only an 89-year-old tradition and someone just got stabbed!

I have a better solution. Keep Christmas Tree Lane open. We’ll set up metal detectors at each end — leaving the side streets unguarded, of course — make everyone take off their shoes before entering, and grab their genitals. Especially those of children and old ladies in wheelchairs.

That way, everyone will feel safer and we can keep Christmas Tree Lane.

1. Jim Guy, “Stabbing mars tradition” (December 15, 2011) The Fresno Bee, p. A3.

This would have been a move welcomed not only by local patients who grow their own medicine, but also by concerned citizens who think that in times when government budgets are limited, money should not be spent on unnecessary lawsuits.

There’s been a lot of talk about alleged abuses of the medical marijuana statutes passed by both the State legislature and the voters of the State of California. In fact, there’s been a lot more said about alleged abuses than there have been abuses. The majority of the complaints take the same form as those about people who use handicapped parking: “I’m not a doctor, but I can tell just by looking that that person does not need to be using handicapped parking.” Similarly, though lacking even a basic Certified Nursing Assistant degree that would allow them to clean up crap, the Fresno County Board of Supervisors is more than willing to dish out their own load.

But let’s assume, just for a moment, that the Board and its supporters was right. The solution is not to take away everyone’s medicine. The solution is to go after the source. If you had a doctor who was handing out prescriptions for Vicodin like it was candy, you wouldn’t suddenly outlaw Vicodin. You would target the doctor.

Oh, wait. That would require following the laws of the State of California — something which the Fresno County Board of Supervisors has already clearly stated it does not wish to do.

Instead, the Board voted today to leave the illegal version of their ordinance in place.

That virtually guarantees that the ordinance will be ineffective and will cost the County money. Sure, recent (lower) court rulings have favored the attempts of various counties to shut down marijuana dispensaries and collectives. And those rulings might even be upheld by the California Supreme Court if it decides that they are not pre-empted, or do not conflict with, State law.

Fresno County’s anti-marijuana ordinance, though, goes farther. At the very least, the County is going to be paying legal fees to defend the indefensible ban on a private citizen’s right to grow their own medicine.

Why? Because no true California court can argue (with a straight face) that the Compassionate Use Act isn’t in direct contradiction to such ordinances. The text of the Compassionate Use Act, voted into law by the voters of the State of California and therefore — under our State Constitution — the pre-eminent law of the land, states (among other things):

Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.

That’s now part of the California Health and Safety Code, section 11362.5 subsection (d).

It really sounds like some people — in this case, the Fresno County Board of Supervisors — think that the solution is to enact new laws with different numbers. “The State law says that Section 11357 and Section 11358 shall not apply? No problem! We’ll call them something else and reapply them.”

But if it’s that easy, then we truly do not have either a democratic republic, or a State where the Rule of Law means anything.

The fact of the matter is that by refusing to even consider the recommendations of the citizen committee they themselves created (and on which I briefly served, although I believed all along it was a joke meant to distract us), the Fresno County Board of Supervisors has thrown a huge smoke bomb into the debate over the appropriate application of California’s medical marijuana laws. Instead of the Supervisors doing what’s both right and best for our County, the courts are going to have to sort it out.

And the County will be footing the bill.

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For example, recently Fresno passed a set of local ordinances intended to override the state laws concerning the possession, growing, and use of medical marijuana. Ostensibly, the target is dispensaries, but the ordinance — about which I shall write more in another post — is fairly broad in its application. The end result is that marijuana — medical or otherwise — is essentially illegal to grow, or use, anywhere in Fresno County. Whether or not you will be arrested for using it in accordance with California state law is unknown at this time, but the ordinance itself makes it illegal.

And why? Because medical marijuana is associated with an increase in the commission of crimes in Fresno.

Or so law enforcement tells people.

The truth, of course, while not really known for Fresno, is very likely something different.

This reminds me what happens when police officers testify about gangs. In just about every trial of a gang member, a so-called “expert” on gangs — always a police officer who obtained his “expertise” through arresting gang members; the same thing that makes him an expert on counseling rape victims, because he talks to so many of them — tells the jury that the gang to which the defendant belongs is a criminal street gang and that it is such because, among other things, the “primary activity” of the so-called CSG is certain enumerated crimes. Pressed on the issue on cross-examination, though, the officer never has raw data that can back up the claim that committing those crimes is the “primary” activity of the CSG.

More likely, the “primary” activity of the group is partying and drinking. This is readily highlighted when you look at the fact that Fresno allegedly has — or at least a couple years ago was alleged by law enforcement (via the Fresno Bee) to have — 8000 Bulldog CSG members. That doesn’t count any other gangs. With “primary activities” of “drive-by shootings, assaults with deadly weapons, robberies” and so on, which is typically the testimony, Fresno should be a virtual hell-hole into which no sane person should ever venture.

But, it turns out, this isn’t the case.

Because the claim is not backed by any data. It’s just a cop saying so, because otherwise, well, he doesn’t really have anything to say on the subject.

So it appears to be with medical marijuana cultivation and dispensing. A study in Los Angeles has actually shown that crime rates have gone up when medical marijuana dispensaries are closed.

It wouldn’t surprise me if this is true, also, in Fresno County. I doubt we’ll ever be allowed to know, even if law enforcement actually collects data that could show us.

The fact is, most medical marijuana dispensaries in Fresno County are run by people trying to follow the laws of the State of California. They usually employ some form of security for their operations, which is much more than you can say about liquor stores.

Sure, there have been one or two highly-publicized deaths when people were shot trying to steal marijuana from growers. But — going back to the liquor stores — Google “Fresno liquor store shooting” and watch how many of those come up.

Where’s our county-wide moratorium on liquor stores? Or how about banks?

Ain’t gonna happen. And why not? Because the problem isn’t medical marijuana dispensaries. The problem is politics, money, and control. Fresno doesn’t like marijuana. Period. “We have our fear,” one woman said at a working committee to revise the medical marijuana ordinances to make them align to State law.

Yes, unfounded fear, combined the occasional anecdote about something someone didn’t like — sometimes even a crime — occurring near a dispensary, combined with law enforcement’s scaretistics in place of any actual statistics. The difference? Scaretistics don’t come with numbers, because if they did, the numbers would be “one” or “two” and possibly even “three.” Instead you get “more” or “increased” or “numerous.” That’s how you spot scaretistics.

But we have our fear.

And what more excuse do we really need to ignore California State law? It’s not like it’s the Sheriff’s duty to uphold th…oh, wait.

First, though, I want to talk to you about something simpler. Let’s talk about how we achieve certain other goals, like — oh, I don’t know — let’s choose “losing weight.” Summer is coming on and I know a lot of you — especially, but perhaps not exclusively, a lot of you female types — will be trying to figure out how to fit into the latest bikini fashions.

What you’ll want to do is to go home from work each night, sit down in front of the television, and eat a bag of chips, a full tub of Rocky Road ice cream — two if you realize just how small the marshmallows are — and then maybe a bucket of Kentucky Fried Chicken. Don’t forget all the side dishes, including the biscuits with the butter and honey.

Oh, that sounds sooooo good!

What? You don’t think that’s going to work for you? Why not?

Studies? Evidence? Experience? Reality?

Ah, if only we applied these same rigorous standards — requiring empirical evidence — when it comes to making ourselves safe.

Recently, the Fresno Bee carried this op-ed piece — “Second chances everybody’s business” — by the Jesuit priest who founded and directs Homeboy Industries. The same article ran in the LA Times with the title “Former gang members: A life sentence of joblessness.”

In the Fresno Juvenile Court, where I defend about half my criminal defense clients and rehabilitation is sometimes a primary goal, Judge Gottlieb has been receiving some well-deserved praise for his work with a highly-regarded restorative justice program.

And in Norway, a “cushy prison” demonstrates just about as clearly as one can imagine, that rehabilitation works.

Whenever someone actually tries to rehabilitate people — yes, they are people — who have broken the law, even when they hurt others, we find that rehabilitation works. It doesn’t work for everyone, but then, neither does dieting, eating right, or exercising, when it comes to trimming down.

Here’s another interesting fact: in the long run, rehabilitation is cheaper than building enough prisons to hold all those we don’t rehabilitate. In a world of budget deficits, wouldn’t cheaper be better, given that cheaper also works better?

So let’s get back to that discussion of safety.

We say we want safety. That’s the primary driving force, allegedly, behind things like the Three Strikes laws, longer prison terms, draconian registration procedures for sex offenses, gangs, drug addicts, and just about anything else under the sun these days. But, as I said, the evidence clearly shows that simply imprisoning people does not work. Just do a Google search on increasing prison sentences and recidivism and you’ll find the evidence yourself.

In addition to the completely unfounded and unsupportable belief that longer prison sentences are better, I occasionally hear that the problem is we give too many creature comforts to those in prison. But if you do the Google search suggested above, you’ll not only learn that study after study shows increasing the time in prison does not work, you’ll also learn that “harsh prison conditions increase post-release criminal activity.”

The truth is, we don’t increase prison sentences to make our society safer. Quite the opposite: the increasingly harsh sentences meted out in the United States are driven by victims and their families. The purpose of increasing prison sentences is to assauge their anger and pain. This provides a legal way for them to strike back at those who have hurt them. It is, in that sense, a sublimated act of violence. It has nothing to do with making society safer.

As with losing weight, making society safer is more difficult. It requires a real and sustained effort; a change in lifestyle. As relates to crime and criminals, sadly, it starts with remembering that those who have been hurt the most are the least capable of thinking clearly about how to handle the problem. When someone pisses us off, the first reaction of many of us is to strike out. When someone steals from us, the first reaction is punishment, revenge. When someone kills a loved one, we want the perpetrator to die.

This, frankly, shows that the only real difference between people who kill to get what they want and people who kill people who kill to get what they want is either timing, or the thing which was wanted. (Think about it.)

No, if we really care about making society safer, what we really need is a diet of rehabilitation.

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Yeah, I bet you didn’t see that coming. At least, not from a lawyer.

But it’s true.

I don’t know which came first, lawyer jokes, or, simply, lawyers who are, in fact, jokes. But the truth of the matter is that much of what’s wrong with law in the United States today is our fault.

Oh, I know. I know. We’ve got practices to run, families to feed, and the crush of clients-without-money is just too much.

So when the Sheriff’s Department says, “You need to fill out this form before you can be admitted to the jail to see your client,” who are we to argue? When the lowest-possible-level clerk at the window says, “It will cost $100 to put your client’s criminal case on calendar,” why should we ask “why?”

We’re busy. So we just do it.

“Legal basis?” What the fuck are you talking about? We don’t need no steenkin’ legal basis!

What? What? Wh-wh-wha-what?! “What brought this on, Rick?!,” you wonder.

Well, I just got back from the Hanford, California, jail a little while ago. (Yeah, I know. It’s late. Some questions, I don’t ask, apparently.) Before that, I spent part of my day in Madera, California, approximately an hour-or-so to the north, trying to put a case on calendar.

In Madera, my client was arrested for the bullshit charge commonly-known amongst those who have been practicing criminal law longer than a month as “contempt of cop.” In the process, he was blessed with one hell of a nice shiner. Well, okay: it’s not really a shiner, but the entire right-side of his face was a lovely shade of purple.

I suggested to the slightly-curmudgeonly, if grandfatherly, near-70-year-old man, a photographer by trade, “No doubt you’ll say, ‘You think that’s bad, you should see the other guy!’”

He replied, “I wouldn’t know. I only saw the bottom of his boot.”

You see, my client had allegedly been stopped for a traffic violation. Being from a generation past when it was normal to get out of the car to greet the officer, he was taken aback when he was brusquely ordered back inside “your vehicle.” (Police officers despise referring to cars as “cars”; they are “vehicles.” This works particularly well with the Hispanic population which comprises the near-majority in California. But as most cops in central California are white — and not a few are white supremacists — they could give a shit.)

You see, my client had difficult complying with the order, because he had inadvertently allowed the door to close behind him. Not being the most wealthy of men, the door release was busted and he therefore normally had to enter the car from the passenger side. As the officer refused to listen to his explanation, merely repeating his order, my client attempted to comply by heading for the passenger side.

Big mistake.

The officer was on him like — well, I’d say like a fly on shit, but in this case, it was the officer who acted like a piece of shit.

He grabbed granddad, spun him in the classic “law enforcement pirouette,” and cuffed his hands behind his back before he could say, “Wh-wha-what?!” and — these are my client’s words — “slowly, almost gently, began to lower” him to the ground, holding onto the cuffed hands.

Imagine that.

No, really. Imagine that. You’re an old 70ish man, being “gently” lowered to the ground — for the first time in your life — slowly, as your hands are stretched out behind you, held by the young uniformed goon who has attacked you for no explicable reason.

Oh, but it’s not over.

For an equally inexplicable reason, another man young goon suddenly comes running out of the darkness. (I may have neglected to mention the stop occurred at night, which adds only slightly to the terror of the incident….right.)

The man young goon yells, “I’m an off-duty CHP [California Highway Patrol] officer!”

And that’s when the boot comes down.

Because apparently the slowness — “gentleness” (?!), remember, is actually how my client described it — with which the original officer young goon was lowering him to the ground was misinterpreted by the off-duty officer young goon as “resistance.”

My client’s booking photo is beautiful. Too bad I don’t do civil law. I hope he’s able to find a good attorney for the lawsuit I’ve suggested he consider filing.

But I digress.

Because I’m disgusted.

So I came to meet this client because he received a letter in the mail telling him that a warrant has been issued for his arrest. Because he failed to appear to answer for the charge of violating California’s “contempt of cop” laws. I’m hard-pressed to find the contempt of cop in the above, where my client refers to his being “gently” lowered” to the ground by his cuffed hands, but for whatever reason, my client was charged with our standard “resisting arrest.”

Nobody knows what he was being arrested for, mind you, but whatever it was, he was “resisting” it when the boot came down. Perhaps because he enjoyed the gentleness of the lowering too much.

Actually, we criminal defense lawyers know what really happened: the boot, which shouldn’t have, came down — an off-duty buttinski boot — and now the client has to pay for it.

So he was arrested, and released.

The jail paperwork shows no pending court date: the section wherein it should have been written is inexplicably blank.

Probably my client’s fault. Like the fact that he was lowered to the ground too-slowly by Cop A, forcing off-duty Cop B to put the pedal to the…well, fortunately, no plates were needed, so it’s not metal. Not yet. But the man still has a decade or two left to defy them by not falling fast enough, so let’s withhold judgment on that one.

Being as he had no court date, he naturally didn’t show up for court, compounding his current misdemeanor for resisting arrest. The perfectly legal arrest for the crime of…uh…um…oh, yeah, resisting arrest.

Wait. Where’s the beef?

I don’t know. What I do know is they won’t put him on calendar, because his bail was forfeited when he failed to appear for the court date which was never set. And according to the judge’s order, if you wish to get put back on calendar after failing to appear and having your bail forfeited — even if it’s because you never had a court date — you have to pay an extra $100. And, of course, until you appear — even if this $100 extortion fee has been paid — your warrant is still outstanding.

There’s just one problem: no one can produce a copy of the alleged order of the alleged judge (who now sits on the District Court of Appeal, so you know where complaining about this is going to get you).

There is no such order.

But, you know, the county is kinda hard up for money, so they gotta get it where they can. And they can get it by telling you that you will be arrested if you don’t show up for the court date that they don’t tell you about when they don’t provide you with the notice about the date which isn’t really set — or is it? — we just don’t know what to tell you except that you need to cough up more money.

And then I went to Hanford.

A couple of years ago, Hanford built a new jail. And according to the jailers in Hanford, they “forgot” — I swear they actually used that word — to build rooms for attorney-client interviews. At the time, I had a client who was charged with first-degree murder and was facing the death penalty. (It did not end that way. And although my client considered what happened a “win,” neither me — nor, sadly, his family — agreed. Although he ended up unstiff, as to my bill which was only partially paid-up-front, I was stiffed.)

First-degree murder, particularly a planned-for-weeks-gang-murder like this one is quite a serious crime — more so even than resisting arrest for…um…well, whatever.  And — even in California where we spend millions of dollars not to carry it out (thank god; I’ve never wanted to be a party to murder, states-sponsored or otherwise) — it carries quite a serious penalty.

Because even if it turns out not to be an actual we’re-going-to-kill-you-possibly-painfully death sentence, it’s still a you’ll-spend-the-rest-of-your-life-in-prison-thinking-we-might-kill-you sentence.

And Hanford had this really nice clean new jail.

With no attorney-client interview rooms.

Because they “forgot.”

So, first, I was told that there was no way to allow an attorney-client-privileged contact meeting with my client.

I could, however, use the fancy new videoconferencing system — nothing like having a little videotaped set of admissions, eh? — which the general public sitting right next to me was permitted to use to communicate with their loved one, sitting right next to my client.

I refused.

Perhaps you can understand my position.

The Kings County Sheriff’s Department did not.

Therefore, I was forced to file motions (yes, I really did; several, before they were ultimately granted — though my favorite was the “Motion for Fair Trial” which was (I kid you not) denied — you haven’t lived until you’ve heard a judge pronounce in open court “The defendant’s motion for fair trial is denied”) to obtain access to my client in as-close-as-we’re-gonna-get-to-attorney-client-privileged-meetings-as-possible as I was going to get.

But they wanted me to sign a release.

If, in any way, whether caused by my client, or by “slipping on a puddle” (i.e., I pissed off the deputy on duty), or some other unknown cause, I was to be injured, neither me, nor my “assigneds,” nor “heirs” (nothing ominous there, really), were to be rewarded one single penny.

I refused to sign.

That did not go over well.

The officer on duty the Night of the Final Resolution actually refused — seriously, he said, “that means nothing to me” — to honor a court order granting me access to my client.

The next day, the judge agreed with me, in front of the Sheriff’s attorney, that it might be necessary to order my client to be brought to McDonald’s to meet with me to ensure at least the possibility of an attorney-client-privileged visit.

I kid you not.

The bottom line is that things were ironed out and I did not sign their fucking form and my client received representation on a death penalty case which ultimately resulted in an agreement whereby my client will be younger than I am now when he is finally released.

Call that what you want: I call that a win.

But today I went back to Hanford.

A lot has changed in the last couple of years. The Kings County Jail, Hanford Edition, has two new rooms for attorney-client interviews. Complete with large glass partitions and their own phones with no family members sitting next to the attorneys and no other accused-persons-equally-deprived-of-rights seated alongside the attorneys’ clients.

They still want you to sign the form, though.

And I didn’t.

Which caused a real problem.

For a minute.

But, just as I and the judge two years ago explained, that’s what California Penal Code section 825, subsection (b), appears to be made for.

Ultimately, I was allowed a contact visit with my (handcuffed) potential client. But the problem here — just as the problem of my client in Madera County being required to pay a “fee” that has apparently never been legally authorized by any judge — would have been nipped in the bud long ago if any criminal defense attorney had simply asked, “Why?” and refused to accept “Because” as an adequate response on day one of the “policy” being implemented. And if that didn’t work, then the second criminal defense attorney to encounter the policy should have joined in.

Unfortunately, most of the attorneys never got to “because,” since they never asked “Why?”

What. The. Fuck?!?!?!

If you ask me, the path to our next Revolution is, first, we kill all the lawyers.

Unless, of course, when you’re about to pull the trigger, one of them asks, “Why?”

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Seriously.

Sometimes people will ask me how I became a criminal defense lawyer. I tell them the truth: I used to have a high-paying job. I got tired of it. Decided having (enough) money was just too much for me, so I decided to go to law school and become a lawyer instead.

When I went to law school, it was with very different ideas about what kind of lawyer I would be than the ones I….

Wait…how do I put this? I started to say “than the ones I had coming out.” The problem is that my ideas of what kind of lawyer I will be are still evolving, four years after I started my solo criminal defense law practice. I have no idea what kind of lawyer I’m going to be. On my best days, I think “a good one.” On many days, I wonder if I’ll ever be good enough. On not a few days, I wonder if I’ll just throw in the towel and try to go back to having a real life.

This much I worry about: will I become the kind of criminal defense lawyer who too carefully focuses on “picking” his “fight”?

Let’s go back to the ideas I had going into law school. No, let’s go back a little farther, because that’s what you really need to know in order to understand what happened to me.

From the late 1980s to the mid-1990s, I attended California State University, Fresno. Affectionately known as “Fresno State University” — a name deemed not appropriately “chic” by…well, those who prefer “California State University, Fresno” — it’s not exactly an Ivy League school. I studied a lot of things. I didn’t have a goal, other than to see what I could learn. I was interested in anthropology, psychology, history. I ultimately ended up somehow with more classes in philosophy.

I like to say that I studied philosophy “with an emphasis in cognitive science,” but officially, CSUF did not have such a degree; ultimately, I graduated with a degree in plain ol’ philosophy (with a lot of what CSUF called “independent study” credits wherein I studied cognitive science, which is what I was really interested in). How does a “person” spring out of what is best described as a grayish-white biological curd? Is it epiphenomenal? Or was Descartes right? Or will the evolution of science turn us all into reductionists?

Despite this obvious interest in people, I ended up working in the technology field for quite awhile after graduating. Ironically, it was the interest in cognitive science that did it. Back in the early 1990s, we were using a quaint little (by today’s standards) network called either “ARPAnet,” or “the internet,” which connected a growing number of universities, so that we could explore connectionist theories of how the brain worked, model brain processes. Many of us, along the way, got hooked on the side effects of “the internet”: email, IRC (Internet Relay Chat), and other means of communicating with people we might never meet. (Almost 20 years later, I still have a friend — Avi Golden of New York — in a slightly-parabolic orbit of friends, whom I’ve never met even though at periods of our lives we’ve communicated almost daily.)

When I graduated, I wanted to stay connected somehow. And right around that time, Mosaic, the “web browser” that would help popularize the Internet, came to be. “Ordinary” people could now get on the Internet; that is, you didn’t have to be involved in some kind of research and sign up for an account through the university. I won’t bore you with the details, but my prior experience with the Internet — and the absence of ads in the “Help Wanted” section of The Fresno Bee seeking Philosophers — made me a shoo-in with the first ISPs (Internet Service Providers) in the Fresno area.

Eventually that lead to a good-paying job as Director of Information Systems for the then-third-largest yellow page company in the United States, which just happened to have its home office in Fresno, where I met Jim Varon, in-house counsel.

The man whose words would later doom me to law school.

When I went to law school after a more-than-six-year hiatus from academic pursuits, I was re-exposed to a bunch of people supposedly pursuing (or so I thought) higher-level learning. Although I had anticipated becoming a “technology” lawyer, whatever that was, I was appalled at some of what I was hearing from the “Law & Order” crowd. I still remember the turning point; the day I knew I was going to be a criminal defense lawyer.

We were reading a case meant to teach “the legal meaning” of “willful,” as opposed to the ordinary everyday meaning of “willful,” which just happens to be fairly close to the same thing. As I recall now, the relevant facts involved a man convicted for “willful refusal to pay child support.” Only it wasn’t, the appellate court said, because he was homeless, didn’t have any money and — if I’m remembering it correctly — he might even have had some mental issues which precluded his ability to have “willfully” refused to pay.

One of my classmates was horrified. “I can’t believe they let him off on that technicality!,” she exclaimed.

Technicality.

From that moment on, I knew what I was going to be doing as an attorney.

I fight over technicalities, only I refer to them as “laws.” (Sometimes I fight against laws which are immoral and “technically” shouldn’t exist because they clash with more foundational principles of our Republic, but the explication of that requires another post.)

In the case of the homeless man, the “technicality” was that, as the law was written, the man was not guilty. Appellate courts do sometimes get it right. (You know what they say about blind squirrels.) As I put it that day, my classmate’s complaint was like whining about a judge dismissing the murder charge just because the murder victim walks into the courtroom.

Technicalities matter.

Too often, though, criminal defense lawyers ignore technicalities, especially if they happen to be “small.” Like the fact that in Madera County, defendants sometimes don’t receive notice of their hearings, which results in an FTA — a “failure to appear” — charge. And, at least in Madera County, a refusal to allow the case to be put back on calendar without payment of $100 dollars.

When I went in to put a new client’s case on calendar and was told about this, I asked a simple question: “What’s the legal basis for that?”

Guess what?

There isn’t one.

The clerk tried to say that a judge signed an order saying they could do this back in 2005. I asked to see the order, stating that I thought that order would be an illegal order.

Guess what?

There isn’t one.

Or, at least, after searching for an hour, they can’t find one. But, they assure me!, they have it somewhere. And my client isn’t getting on calendar — a warrant for his arrest will remain outstanding — until we pay the $100.

It would be easy to ignore the “technicality” of this requirement having no basis in law. It’s just a small thing, which has — since 2005 at least — brought in a bunch o’ money for the County of Madera. Apparently, no other criminal defense attorney ever thought it was worth asking, “Why?”

And we CDLs, we have to pick our fights. I mean, $100 — it’s not really that much, is it? Don’t poor people use $100 bills to light their cigarettes (for which they pay close to $100 per pack now)?

It’s just a small thing, like the requirement that the failure to pay child support be willful, or that a murder case actually have a dead victim.

For my part, I’ll be filing a writ to get my client’s case on calendar.

Comments

• January 22, 2011, Ernie Menard writes: Yeah, okay. What are you going to do when your writ is circular filed? A ruling can't be made on a document that never existed - you'll have nothing to appeal. Perhaps nothing that your client produces, such as this writ, can be docketed until the fee has been paid. I'm not being totally facetious as a similar situation but without the caveat of unpaid fees- the loss of filed motions - has happened to me on two occasions, in different courthouses, in different jurisdictions. Frankly, not having enough experience or knowledge I didn't know what to do about it. Anyhow, I hope you post about the drama that will surround the ruling about the writ.
• January 22, 2011, RickH writes: There is an existing case. There is an existing complaint. And there is a clerk refusing to allow the case to be put on calendar without the prior payment of a fee for which there is no legal basis. Maybe I will find out I'm wrong, but I think this provides a basis for a writ of mandamus and prohibition.
• January 22, 2011, Ernie Menard writes: Educate me. Does the writ have to be filed with the clerk's office?
• January 22, 2011, Lyle Jones writes: I agree--file the writ. It'll be interesting to know the result.
• January 22, 2011, RickH writes: You're welcome to schedule an appointment in my office for a consultation if you wish to be educated about something. My blog is a place I write my opinions regarding things I encounter. It is not a place for the giving of legal advice. Thanks for understanding.

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• Time to Fight Back?
• Letter from Mike T.

The courts — and no doubt the attorneys I’ve seen counseling their clients (plural) en masse about plea agreements in the foyers of the County courthouses — would say I’m mistaken. I heard it wrong. They fight like hell. Like hell they fight! Like hell.

Now federal prosecutors in Fresno say what’s good for Kings County is good for the King.

There’s just one problem: the defendants are police officers.

And if there’s one thing the San Joaquin Valley of California loves more than anything, it’s a police officer.

The story goes like this: in 2005, four police officers allegedly committed crimes so egregious that even Fresno’s Finest blushed. According to the Fresno Bee,

[The alleged victim] was punched and kicked, bitten by a police dog and shot with a less-than-lethal shotgun.

The four officers were fired after a police investigation concluded that excessive force was used in the arrest and that evidence and a police report were altered.

The city later paid [the alleged victim] $67,500 to settle his excessive-force claim.

Now that’s big. I am personally aware of cases wherein the police were alleged to have used excessive force in several cases much worse than this.

In one, on which I consulted, the police shot an alleged purse snatcher in the back. If he ever beats the charges against him — unlikely, it seems, at the moment — any future purse-snatchings will be done from his wheelchair. The shooting left him paralyzed.

Allegedly.

As I understand it, an untraceable gun was found under his body after he was shot and after significant coaching, the elderly woman whose purse was snatched eventually changed her story from “no gun” to “gun which happens to look like the one the police found.” I’m told it only took three tries to correctly state the description of the gun.

In another case, Brandon Lebar was just recently convicted for assaulting an officer. The “assault” occurred after Lebar and some of his friends were victims in a drive-by shooting. One of his friends died at the scene. Lebar was shot in the leg. As I understand it, his femoral artery was hit and he was bleeding profusely when deputies arrived and shot him in the chest for not following orders. According to the Fresno Bee,

Deputies were sent to Cedar and Weldon avenues and found Lebar, who had been shot in his left leg and was lying on the ground.

As deputy Todd Burk asked Lebar how he was feeling, he sat up and pointed a handgun at Burk, who then shot Lebar in the chest.

…

Under questioning by prosecutor Noelle Pebet during the trial, Burk testified that as he approached Lebar, he saw his right hand under his right leg. When Burk asked to see his hand, Lebar displayed a gun, the deputy said.

Well, which is it? Did he sit up after being asked how he was feeling and point the gun? Or did he “display” the gun after being told to show his hands?

Or was he maybe just busy bleeding to death after part of his leg was blown off (that can’t hurt too bad, can it?) and didn’t understand the officers wanted to cuff him and ask a few questions?

Burk retreated and ordered Lebar to put the gun down or he would shoot him. Feeling threatened, Burk shot Lebar, the deputy testified.

Now, I’m not sure how many of you have ever been shot in the femoral artery, but the defense argument that Lebar was neither threatening anyone, nor displaying a weapon, because he was screaming, writhing about, and going into shock from the blood loss has a great deal of merit.

Only we loves our officerses, precious, doesn’ts we?

As is usual when an officer assaults someone in Fresno, charges were filed on the victim…and the jury dutifully convicted.

Which brings us back to the case in today’s paper.

Apparently, the defense attorneys are doing a bang-up job. Two officers — both represented by Marshall Hodgkins — already were offered their jobs back. Now Marshall and another attorney are defending the officers in federal court.

Marshall Hodgkins is widely considered the “go-to” man for officers in need of defense. From what I’ve heard over the years, he doesn’t often lose, either. He wins admin hearings; he wins criminal cases; he wins civil suits.

It’s not just because he defends cops, either. I know Marshall and he’s a fighter.

And, as I said, he’s already convinced a board that the two officers he was defending should be reinstated; one has been and the other apparently declined reinstatement.

So what we have is a major conflict of Valley “principles” here. I’m not talking about the whole “innocent unless proven guilty” thing, either. Valley residents could give a crap about that. I’m talking about the “principle” that says defense attorneys who do too well need to be handled (i.e., fired) versus the “principle” that “we loves our officerses, precious, doesn’ts we?”

The prosecution isn’t thinking about that conflict, though.  The prosecution wants the court to remove the defense attorneys due to an alleged potential conflict of interest with the attorneys defending the officers.

Did you ever doubt that the prosecution’s motive is completely altruistic? The prosecutors are worried that the police officers won’t get the best defense.  After all, as noted, Marshall is defending two involved officers: the two who already won in the administrative hearings.

The feds want to offer a deal to one of the two if he’ll testify against the other. Marshall communicates the response, “Thanks, but no thanks.”

For their part, the officers have signed waivers of any potential conflict. These guys are no idiots: they want Marshall Hodgkins. (Did I mention he wins, and that in their cases he already has won them back their jobs?)

And let’s not forget one other thing: the officers are innocent unless proven guilty. If — as the officers contend — they did nothing wrong, is there any surprise they don’t see a conflict? Unless the prosecution proves beyond a reasonable doubt that the officers committed the crimes with which they are charged, they are not guilty.

As far as the Law should see it, unless proven otherwise beyond a reasonable doubt, they didn’t do it. As far as a deal goes, then, no conflict.

Unsurprisingly, the officers and their attorney are at least as convinced they did nothing wrong as the prosecution is that they did.

It will be interesting to see what position the courts take. Does the Sixth Amendment right to choice of counsel matter? Will the prosecution convince the courts that even though men who are not guilty probably have no conflict and even though the men say that they’re willing to waive any potential conflict should one arise, they should, nevertheless be denied the counsel of their choice? Do we fire criminal defense attorneys who do their jobs too well?

Or, does we, precious, really loves our precious, precious?

Because, in the end, this one is about anything but the Law.

Related posts:

• Shooting Holes in the U.S. Constitution
• Letter from Rachel
• Letter from Jose A.

This blog hasn’t gotten my full attention.  It is something of the poor stepchild to my older, more-established law blog.  Probable Cause: The Legal Blog with the Really Low Standard of Review is my real baby; it’s where I pour my heart and soul.  In fact, I’d never have set up this second blog if it weren’t for the fact that I got lucky and managed to buy FresnoCriminalDefense.com when another local attorney apparently let registration on the name lapse.

Originally, I intended to have Fresno Criminal Defense focus on more “local” issues — at least through Central California — and have Probable Cause be my blog for every other kind of legal blogging.  Unfortunately, I’ve found that sometimes writing about local issues can get me into “sensitive” areas where I could potentially cause more harm than good.

I don’t want Fresno Criminal Defense to fade into nothingness, which it will do if I don’t find more to blog about here. I want to avoid its unfortunate death.

Death and dying is something I’ve been doing a lot of reading about lately.  Not that I really want to, but I’m a criminal defense attorney.  Right now, some other criminal defense attorneys whose blogs I follow are writing about some serious injustices being done in the name of “Justice.”  They’re writing about punishment by state-sponsored murder, a.k.a., “the death penalty.”

And then comes an email, with this message:

“Death row is a special hell for innocent people…a real nightmare. We were going to be murdered as punishment for crimes we did not commit. And we were the lucky ones who were exonerated. Others were executed who were as innocent as we were. Think about that.” - Ron Keine, who came within 9 days of execution.

We, the People, are eager to kill.  Or at least our elected representatives and the unelected goons who have been hired to staff our gulags think we are.  So eager, in fact, that we’ve taken to ordering the drug from overseas, because there isn’t enough available in the United States.  The British have, finally, bowed to world pressure to stop the bloodthirsty Americans.  They have banned the export of drugs which could be used by us to kill our unwanted citizens.

Those frickin’ Brits.  They always seem to be ahead of us.  Back when the United States refused to ban slavery, the British — along with other civilized countries — had already done so.  In the early 1800s, they banned the slave trade; by 1833, they had banned most slavery throughout their empire.

Ironically, there was one area we had them beat.  For awhile.

During the 1780s Americans launched a full-scale attack on English criminal justice. They chose to critique English law at its most vulnerable point: the capital-laden statutes of the criminal code. Rejection of English law was part of a discourse of legitimization and delegitimization that surrounded the American Revolution. English publicists, as David Brion Davis has shown, dismissed American claims for liberty as coming from slave holders. Americans, in turn, sought to delegitimize England by representing it as a country with Tyburn as its iconographic centerpiece. According to this argument, England’s reliance upon capital punishment suggests a social order badly in need of a repressive apparatus. Mid-century colonials praised English due process in contrast to minimal French protections. But now Americans compared England’s legal system unfavorably with an idealized version of their own.¹

Americans thought they were better than the British because the British relied so heavily on the death penalty, allegedly to deter criminals. In fact, Americans recognized that the British were having trouble adjusting to the changing world. Societal norms upon which they’d come to depend began to feel as if they were spinning out of control as the world expanded and they encountered new cultures and traditions. The social order they valued was breaking down and those who longed for the good old days found themselves badly in need of a repressive apparatus.

But to every thing, turn, turn, turn, there is a season.

Today, it is Americans who are coping with changes most people find disconcerting. Our country is being “invaded” by People like our forebears who come here longing for a New World and a New Life. We don’t understand their customs; we’re not appreciative of the changes.  Many of the newest of the newcomers even practice different religions, inspiring a resurgence of the most fervent of America’s own home-grown sharia-loving Bible-thumping Repressives.

In the midst of this, the clamoring for and against the death penalty increases. The Forces of Death, who wish you think they are driven hard by their thirst for Justice, press on in the face of growing evidence that America kills innocent people.  As Jeff Gamso points out regarding hearings currently in progress now aborted on the unconstitutionality of Texas’s death penalty, despite the fact that no rational human being can believe we have not killed innocent people, the prosecutors do not want to hear it.  Like children plugging their ears and yelling, “Na-na-na-na-na-na-na-na-na-na-na-na-na- I can’t hear you!,” the prosecutors stand in court and proclaim, “We are standing here mute.  We are not participating.”  As Jeff notes,

Just ask Hank Skinner about how much they don’t want to know.  Or ask Gov. Perry or John Bradley how eager they are to figure out whether killing Cameron Todd Willingham was an oopsie.  Or ask the prosecutors in Ohio who refuse to allow DNA tests even when asked by the Governor and Attorney General (admittedly, both about to be out of jobs, but they hadn’t lost the elections at the time).

Ignorance, they say, is bliss.

Keeping the public ignorant?

Enforced bliss.

And now Mark Bennett reports, the prosecutors in Texas are being assisted by the Texas Court of Criminal Appeals. ABCNews also has the story.

For those not as fortunate as Ron Keine, the goal is to make it harder to avoid an unfortunate death. To achieve that goal, they have to kill the American Spirit — the Spirit that proclaims Freedom, the Spirit that yearns for Justice. We must silence not only the innocent men who strive to be allowed, though wrongly convicted and imprisoned, at least to live: we must also silence Truth.

Related posts:

• Who is the King?: Sowing the Seeds of Disrespect for the Law
• Submitizens II
• Exoneration by Association

1. Steven Wilf, Law’s Imagined Republic: Popular Politics and Criminal Justice in Revolutionary America, (2010) (Kindle for iPad version at location 153-161) (emphasis added).

Gal notes,

These days, networking is synonymous with a successful business. Networking is also the key to a good social life. No matter how big our office, how colourful our flyers, how powerful our computers or how many degrees we have, it is the quality of relationships we establish with ourselves, our family, our friends, our customers, our suppliers and, more than anything else, with people we don’t know, that will determine our success in our personal life or in business.

And as a story in yesterday’s Fresno Bee demonstrates, what’s true in business and our personal life is also true in law.

The story — and there have actually been several in the Bee over a few days — tells of allegations of physical abuse.  Paul and Alex Grenier, sons of a Visalia pastor, filed a criminal complaint with the Visalia Police Department this past February.  The complaint alleged that when they were children, their father repeatedly abused them, beating them, punching them in the face with his closed fist, slapping them upside the head and even “beating one son repeatedly with a tree branch.”

Apparently, however, nothing is being done about the allegations because the statute of limitations has allegedly passed on all the crimes reported.  Oh, and when the boys asked for a copy of the report — the report the police created of the complaints the boys made — they were told they couldn’t have a copy because the investigation was ongoing.  However, the boys were also told that no investigation would be done because the statute of limitations has passed.

Hmmm….I wonder what else is going on. After all, something has to help us make sense of this “ongoing investigation/no investigation will be done” situation.

As it turns out, networking isn’t just synonymous with a successful business: it’s synonymous with helping out when you do bad stuff.  Most of the time.

The elder Grenier’s connections to law enforcement run deep in Visalia. The introduction of his self-published book “A Common Miracle,” telling his life story, includes praise from former Visalia Police Chief Bob Carden, Sheriff Bill Wittman and District Attorney Phil Cline. And the staff at Calvary Church includes a retired sheriff’s lieutenant. (Lewis Griswold, “Sons of Visalia preacher allege abuse” (July 17, 2010) The Fresno Bee.)

Now it’s entirely possible that every crime reported by the boys is time-barred.  California has — not without some difficulty — attempted to extend the statute of limitations on certain types of abuse almost indefinitely.  In the 2001 case of Stogner v. Superior Court, for example, they held that sex crimes which had been previously time-barred — that is, the statute of limitations had run; the time to prosecute had expired and the accused person could not be persecuted prosecuted — could, after all, be persecuted prosecuted.

The United States Supreme Court, imbued at that time with slightly more sense than today — I’d hate to see what the Roberts Court would do with this now — reversed California.  The Court did this because of two concerns: first, that the specific statute addressed in Stogner violated the ex post facto restriction; second, that the passage of time “has eroded memories or made witnesses or other evidence unavailable.”  (Stogner v. California (2003) 539 U.S. 607, 615 [123 S.Ct. 2446, 156 L.Ed.2d 544].)

Both those issues are interesting enough and involved enough that further discussion will have to await another day.

In any event, while California continues to believe that the absence of evidence in allegations of long-forgotten, suddenly “recovered” memories of sexual abuse (see Trear v. Sills (1999) 69 Cal.App.4th 1341, 1344 [82 Cal.Rptr.2d 281]; Code Civ. Proc. § 340.1) may be pursued in the absence of any real evidence, the same “courtesy” has not been extended to alleged victims of non-sexual abuse.

And so, as I said, it may very well be that the statute of limitations has run on all the allegations of the minister’s children.

What caught my attention about this story, however, was this:

The brothers spoke with investigators for more than an hour, but were disheartened that the finished report left out what they say is crucial information.

“The report did not include the brutal nature of the many beatings,” Alex Grenier wrote in an e-mail. “It was a seriously watered-down version of what we reported and left out the most serious allegations of abuse.”

And this:

Visalia Police Chief Colleen Mestas defended the report, saying police reports are summarized to get cases started in the court process. “You don’t put in every detail,” she said.

The time lapse between the beatings — in the 1980s and 1990s — and when the charges were made affected how the report was written, Mestas said.

The statute of limitations expires after three years for felony physical abuse and after one year for misdemeanors. “If the statute of limitations has passed, it doesn’t matter how much you say,” Mestas said.

Then why take a report at all?  Why not just say, “Sorry, kids, but there’s nothing we can do.  The statute of limitations has run.”  And why say, later, that the report is unavailable because the investigation is ongoing?

The likely truth of the matter here is that the report is watered down — regardless of the question of the statute of limitations — out of deference to the allegedly-abusive father with close ties to the police department.  The bogus explanation that the amount of time which had passed colored how the report was written is just that: bogus.  The point of police reports is, among other things, to provide information necessary for future handling of any case by providing a record of what has come out of the investigation thus far.

What colored the police reports wasn’t the passage of time; the report hasn’t yellowed with age.  The coloring of the report here comes from the close relationship of the boys’ father and the police department: it seems to me someone edited these reports with a thin blue pencil.

Related posts:

• Clowning Around With Justice
• Nothing to Fear
• Shooting Holes in the U.S. Constitution

Fresno County Sheriff Mims provides her own example.

The Fresno Bee reports today that Mims has decided to join the growing list of California cops who say, “Fuck what the voters want.  This is my county!”

Mims trots out the old “pot dispensaries are magnets for crime” stories.  Makes sense…to those who already feel that regardless of the fact that modern medicine has finally started to catch up with what people have known for over 5000 years, they want none of it.  Medical marijuana is, for those who rely on it, a godsend.  But the mythology that started the War on Drugs doesn’t care about that.  And Mims, who almost certainly has a money motive in keeping the War alive, will have none of that, either.

This post is not about the medicinal qualities of marijuana.  Frankly, I don’t want to write an article long enough to cover all the benefits of natural remedies over the more-profitable, more-dangerous, artificial ones drug companies insist upon.  Besides, while I do defend medical marijuana growers and therefore read quite a lot of marijuana law, I don’t use it.  So I can’t speak about the benefits from my own experience.  I only know that an increasing number of studies show that marijuana has for decades now been cloaked in so many lies that it’s hard for uneducated people to know about the thousands of years of positive history humanity has had with the plant.

The potroversy, though, does provide further insight into the way cops think.

Sheriff Mims — as she has done so many times before — reminds us that getting her way is much more important than doing her job.  Her job, of course, is to enforce the law.  Mims wants none of that.  California voters approved medical marijuana?  Over her dead body!, she tell us.  Why, they’re goddamn “magnets for crime.”

Frankly, if that were true, I’d think her and her donut-chomping lackeys would appreciate them more.  They already refuse to respond to crimes on the basis that they just don’t have time for that.  So, if pot dispensaries are such crime magnets, why not just set up a few county-run dispensaries, park a cruiser out front and then hold press conferences each week to pat yourself on the back when you arrest all the magnetized criminals irresistibly drawn to your location?

Of course, it’s not really that easy.

Because Sheriff Mims is lying.

Dispensaries are no more magnets for crime than are stores that sell alcohol.  Or groceries.  The story in which Mims was quoted notes that there have been two crimes committed involving dispensaries in the last month.  Two whole crimes!  (Well, one wasn’t 100% “whole” since the attempted robbery failed when the dispensary owner ducked into a closet.)

How many convenience stores have been robbed in that same time period?  How many grocery stores?  As I recall, someone tried to rob a SaveMart about a week or so ago.  That’s a large chain store!  Banks?  Now there are some magnets for crime!  ATM thefts, bank robberies, you name it.  Is Sheriff Mims lobbying to shut any of them down?

Nope.

But that’s not the only reason I know Sheriff Mims is lying.  And it’s also not just because her lips are moving.  I know Sheriff Mims is lying because she admitted as much herself:

Mims said her office has not examined how much crime has been reported at and around dispensaries. But she said she also is troubled by law-enforcement reports that marijuana grown illegally on public land has been bought by dispensaries.

Sheriff Mims doesn’t know how much crime has been reported at or around dispensaries. But don’t pay attention to that.  She’s troubled by “law-enforcement reports.”

So am I.  I’m troubled by law-enforcement reports — including those to the ever-gullible Fresno Police Cheerleaders Gazette Bee, which wouldn’t know an investigative reporter, or a critical thinker, if one walked in and bit the editor on the ass.  I’m troubled by law enforcement reports which contain more lies than truth.  Even the ones that don’t exist, like those Sheriff Mims made up for the Bee.

Did a law enforcement officer find a dispensary that bought pot that was grown illegally?

Then why didn’t they arrest the people — at least the owners — at the dispensary?  Why didn’t they trot them out in front of reporters, instead of made-up stories about invisible magnets?

California has two primary sets of laws controlling the growth, transportation, distribution and use of medical marijuana.  The Compassionate Use Act and California Senate Bill 420, known as the Medical Marijuana Program Act. Neither allows medical marijuana dispensaries to possess or distribute marijuana grown illegally.  Medical marijuana law in California allows certain individuals and collectives to grow marijuana legally.  Dispensaries can — and do — obtain their marijuana from such sources.

But that won’t satisfy the likes of Sheriff Mims.  She doesn’t like pot.  She won’t support the laws of the State of California.  She doesn’t give a damn whether they’re passed by the voters, or the California legislature. And she doesn’t care if she has to lie to convince you how terrible marijuana dispensaries are, because she just “knows.”

That’s how cops think.

Comments

• June 10, 2011, ajtree writes: I feel that Fresno Sheriff ROBBED a pharmacy. It is only a state law so it seems there will be no real recourse. The feds are not invilved, but they should be even if it is just a state law that is not fed sanction law. I feel a lot less safe from so called law enforcement, and fearful of vigelante with state funds.

Related posts:

• Bad Cop, uh…Bad Cop
• Born-Again Defense Evangelist, Police Chief Jerry Dyer
• When The Pot Calls The Kettle…