This post is something I began thinking about writing on the day two law enforcement officers were killed in Minkler and another was wounded by a deranged individual who planned their deaths, as well as his own.  This post is about my worship of law enforcement.

People who know me — and particularly the  many law enforcement officers who, I’m told, “don’t like” me and call me “the shackle guy” because of my motions to get shackles off children in juvenile court — will be surprised to hear that I’m writing about my worship of law enforcement.  They will, perhaps, be expecting a trick.  A play on words.

They will expect this because I frequently rail against law enforcement agencies and officers in my postings on this and my more generalized criminal defense blog, Probable Cause: The Legal Blog with the Really Low Standard of Review.

While there is no trick per se in what I’m writing here, those expecting a play on words are neither entirely wrong, nor entirely right, as you will soon see.

Scott Greenfield, as usual, provides an assist in my thinking on this issue.  Although I began thinking about this post, as I said, after hearing about the Minkler shooting, I have had a hard time trying to figure out how to put my thoughts into words.  I’ve ruminated on it a great deal — it seems to me almost constantly — from then until now.  How can I write what I think in a way that gets the message across, without upsetting those who have suffered a great loss, those who sympathize with those who have suffered a great loss, and without causing those whom I at least partly exist to serve to think that I do not, in fact, at least partly exist to serve them?

I worry about this because no small part of what I have said and have to say is, indeed, a complaint about law enforcement agencies and officers.  In fact, it extends beyond them to all others who claim to aim to uphold the law.

For as Scott notes,

There are two sides in our system, the prosecution and defense.  While those of us who practice criminal defense, and those Americans who appreciate that such a thing as the defense exists, extol the virtues of our side of the equation, this op-ed [the op-ed to which Scott referred is here] and the reactions to it serve as a painful reminder that the more “official” voices of the system barely tolerate our existence.  We are, at best, a necessary evil.

And it is hard to know how to reach out in sympathy — as I have wanted to do over the Minkler shootings — to those who consider you to be the embodiment of, at best, a necessary evil.  For I am necessary, but I am not evil.  To quote Scott again,

We do honest work.  We are as much a part of the system as any prosecutor.  Our contribution is vital, for without us there can be no system.  Contrary to the attacks of the ignorant and angry, we do not support crime or terror.

To those who worship law enforcement, we are as necessary as law enforcement agencies and officers. prosecutors and judges.  It is not a huge exaggeration to say that we are Guardians of the Justice System.  The job of the police — and by that I mean city police, county sheriffs, state police, or any of the others we typically think of as “law enforcement” — is to arrest those they believe have broken the law.  The job of prosecutors is to make some evaluation of this, hopefully with an eye towards seeking justice and dismissing those cases where there is signfiicant doubt, but to go on to seek the punishment of those who they believe have broken the law.  My job is to make sure the justice system works.

I stand up and say, “Okay, Officer.  Okay, Prosecutor.  You think this person has committed a crime.  Prove it.  Beyond any reasonable doubt, prove it.  Because the last thing we want to do is to take away someone’s life, liberty and pursuit of happiness erroneously.”

Contrary to the words of Police Chief Jerry Dyer in today’s Fresno Bee, defense attorneys do not “attack police and cloud the issue.”  There is no “smoke” that jurors must “see through.”  Law enforcement officers sometimes do things they should not do.  They sometimes lie.  They sometimes steal.  They sometimes make up stories.  They sometimes arrest the wrong people.  Defense attorneys do not “attack police and cloud the issue.”

Just like the police believe — at least many of them believe — that our clients are actually guilty and have been justly arrested and prosecuted, so, too, do we sometimes believe the police have made mistakes.

We might not always believe they have mistakenly arrested the wrong person; we might be challenging them for having trampled the Constitution and the Law in the process of investigating or arresting.  As I said above, though, we partly exist to serve our clients.  We also exist to protect our system of justice, to ensure the Constitution and the Law are not casualties even in the pursuit of the guilty.

This is the system that centuries — centuries! — of thought, experimentation, experience and more thought have gone into building.  It is the legacy our Founders left us.  It is the bedrock of the greatness of the United States.  We essentially invented the system we now have.  Nations that have grown up after us have modeled themselves on us and our system of justice.  Older nations have incorporated some of our inventions to build a better justice system than that they already had.  And the insertion of criminal defense attorneys into the mix was not a necessary evil; it was simply necessary.

Jurors are not tasked with seeing through the “smoke” of defense attorneys who “attack police and cloud the issue.”  They are tasked with making a determination about the facts.  Did the State prove beyond a reasonable doubt that our clients did that which they are accused of doing.  Defense attorneys raise doubts.  When we do our jobs well, when we have raised every doubt for consideration, and those doubts have been carefully considered, then — and only then — can we be sure we are not convicting innocent people.

This job and ours — the job of the jurors and of defense attorneys — is complicated, however, by the worship of law enforcement officers which frequently supplants the worship of law enforcement.  The officers are on the front lines.  As the Minkler incident reminds us, they risk their lives to do their part to uphold most of our laws.  To some extent — to some very minor extent — I risk my life doing my part, too (after all, some of the people I represent are murderers, rapists, or otherwise nasty people).  But it pales in comparison to the risks they are exposed to daily.  And, more than that, some of what they do is an attempt to protect my sorry ass from even the minor risks I face while doing my job.  So it’s perhaps understandable that we honor them so much.  They deserve to be honored!

But honoring officers should not be confused with worshiping them.  They are not gods.  They are human beings.  Human beings who are often under a great deal of stress.  And human beings under a great deal of stress sometimes do things they should not do.  Sometimes they lose track of their goals, their jobs, their raison d’être. When they do, they should be as accountable — if not more so — as those they are tasked with investigating and arresting.  But we do not rein in those we worship.  How can a god sin?  This is why we must avoid worshiping them even while we properly honor them.

This is where some of my friends — and even my own wife — have been confused.  They mistakenly believe that I rail against police officers when, in fact, I rail only against the sins of police officers.  In fact, much of the time, I’m not even doing that: I’m simply doing my job of challenging them, making them prove that what they believe is true is actually true, and trying to make them prove it beyond a reasonable doubt, trying to break through the worship of these heroes — and they are heroes, just not gods! — to make sure their beliefs about my clients are proven beyond a reasonable doubt.

I do this because it is necessary.  I am necessary.  The police are necessary.  The prosecutors are necessary.  We all are necessary; almost none of us are evil.

I worship law enforcement, but while I value law enforcement officers who do their jobs and do them nobly, I do not worship law enforcement officers.  Law enforcement requires not just the investigation and arrest of people who commit crimes.  Law enforcement requires the enforcement of our laws regarding how people are investigated, how they are arrested, how they are “brought to Justice.”

As I have thought about how to write this post for more than a week now, I have mourned the loss of these officers who were killed doing their jobs.  I have thought about their families.  I have pondered how to express my thoughts so as to ensure that people who do not like what I do would not doubt the sincerity of my expression of sympathy.

Ultimately, I came to realize that the problem with what I want to say, what I want to do with my words here, is the same as the problem I confront in doing my job every time I defend people accused of crimes:  I worship law enforcement, which includes the enforcement of the laws that require someone like me to challenge law enforcement officers.

But that does not mean that I cannot also honor those officers.

I worship law enforcement.

Well, I’ve been a “real lawyer” for awhile now.  Heck, I’ve even passed the point where I’m no longer called a “young lawyer” and can pay lower rates to join various associations.

But I still don’t understand.

Instead, I notice that I’m becoming more angry, more bitter and more inclined to come out swinging.  Does that mean I’m becoming more naive?  More idealistic?

I don’t think so.  I think I’m becoming more realistic.

When I talk about the disconnect between what is right and what is happening, I’m not being “idealistic.”

Scott Greenfield tells about John P. Galligan defending Nidal Hasan.  The attorney has received belated (do we really ever get any other kind?) discovery, information which has been in the hands of prosecutors for several months, and when he receives it, it comes with a gag order.  Another attorney — I followed the link to this story from the blog Galligan started — is threatened with jail for violating a rule forbidding the release of evidence.  This in spite of the fact that he did not release any evidence, but only mentioned that there was evidence which people were not allowed to see.

This problem is more obvious in cases like those just mentioned involving “terrorism.”  (Although it’s not clear to me yet that Hasan’s acts were terrorism; they could just as easily be some guy who happens to be Muslim who became unhinged after receiving orders to Iraq.)  But such things happen even more frequently in “regular” criminal prosecutions.

In 2008, an attorney’s office was searched by police looking for evidence against his client.  In 2009, the United States Supreme Court held that prisoners have no constitutional right to DNA evidence — even though “[p]rosecutors there [in Alaska] have conceded that such testing could categorically establish the guilt or innocence of [the prisoner]” — that might prove their innocence.  In 2010, Kathleen Cannon, a defense attorney in Vista, California, argued about the “continuing pattern of failure”  — the systemic problem of a failure — to turn over evidence that might be useful to the defense.

This is real and really wrong!

As recently as yesterday I was forced to invite a judge to find me in contempt after he said he was not going to allow me to make certain necessary statements on the record.  (I was objecting to a particular procedure I felt was illegal.)  That same day, I received a phone call from another attorney asking if I would represent his secretary after law enforcement officers seeking evidence against one of his clients came to his office, allegedly on the suggestion of a judge, to try to get the evidence from his files — sounds like the 2008 case mentioned above, doesn’t it?

This is real and really wrong!

Frederick Douglass once said:

Find out just what people will quietly submit to, and you have found out the exact measure of injustice and wrong which will be imposed on them, and these will continue till they are resisted with either words or blows. The limits of tyrants are prescribed by the endurance of those whom they oppress.

We, the People — and by that I don’t mean the fabled group prosecutors falsely claim to represent — are about at the end of just what we will quietly submit to.  And the last line, the last possibility to turn us back to our ideals, are the realistic defense attorneys who do not shrink from getting the courts to see this.

For if we fail, so, too, will our once-great nation.

That’s for real.

The simple answer is that they’re numbers.

But you knew that.

In 2006 or 2007, like me, the public defenders of a juvenile justice court in Miami-Dade, Florida, got tired of seeing all their children brought to court in shackles.  They started running motions to have them unshackled.

Today, more than 95 percent of our child clients appear without chains and shackles before all four juvenile judges.  With more than 3,000 detained children having appeared in court since our first motion, we have had no incidents of a child injuring or attempting to injure anyone in court, and no detained child has escaped from the courtroom.  (Carlos Martinez, “Children in Chains: Why are Children in Florida Treated as Enemy Combatants?” (May-August 2007) National Legal Aid & Defender Association, vol. 29, no. 1, p. 10.)

Three-thousand unshackled children.  (Unshackled!  My G*d!  What is the world coming to?!)  Zero incidents of injury, attempted injury or escape.

California, according to the California Supreme Court and numerous judges who have read and accept their duty to uphold the law,

held that minors cannot be shackled in any juvenile court proceedings without an individualized showing of need, the same as in jury trials, even though no jurors are present in juvenile court.  (James R. Brandlin, “Safety First” (Date Unknown) The Daily Journal, p. 7.)

But Fresno loves nothing if it doesn’t love living in and endorsing a police state.  So in Fresno, California, shackles are de rigueur.

I’ve written one or more articles on this situation in the past, so I won’t go into all the arguments against shackles again here.

What I want to add, though, is this:  Fresno’s juvenile court claims that they are not violating the law against shackling because they are not shackling as a matter of policy.  Any Fresno juvenile court judge making that claim is intellectually dishonest.  Deputies have testified under oath that minors were shackled because it was policy.  Deputies have stated off-the-record that it is policy that drives the shackling.

No amount of going back after the fact to find out that the child told another child — or even an adult — to “fuck off,” or that he stuffed toilet paper into his toilet until it overflowed, or that he banged on the door of his cell because he was bored stiff, is going to change that.

By the way, I think the fact that I “win” about 50% or more — two out of three since yesterday — motions that I bring to have children I represent unshackled shows that they are being indiscriminately shackled.  Most of these “wins” occur without argument: I make a challenge, the completely irrational procedure allowing deputies to go look for a reason is implemented and upon the deputies’ return, they state “The Sheriff’s Department will not object to the minor being unshackled.”

Boom!  The shackles — which clearly should never have been placed on the child to begin with — come off.

And something else that needs to be understood is this: the courts do not have to earn respect like most other entities or people do; the court has armed officers to enforce their power to lock people up for “dissing” them, for one thing.  But beyond that, they are duly-constituted courts of law under our system of government.

One thing courts can do, however, is to lose respect, when they forget that they are duly-constituted courts of law under our system of government.  Just because the Sheriff’s Department wants to do something does not make it legal.

And I know one way they the courts can lose respect.  Or, rather, I’ve heard the California Supreme Court say one of the ways it can be done.  The California Supreme Court — so please don’t shoot the messenger here –notes one difficulty for courts is:

the disrespect for the entire judicial system…incident to the unjustifiable use of physical restraints….  (People v. Duran (1976) 16 Cal.3d 282, 291 [127 Cal.Rptr. 618].)

Moreover, the Fresno juvenile justice court judges who approve shackling for some children on the basis of the Sheriff’s deputies coming back — after being unable to find any better reason for shackling children – to run through the list of sins of those children while in custody in their pods is — well, I already said it: an exhibition of intellectual dishonesty.

[N]o child should be brought into the courtroom in shackles except under extraordinary circumstances backed by evidence.  (Brian D. Gallagher and John C. Lore III, “Shackling Children in Juvenile Court: The Growing Debate, Recent Trends and the Way to Protect Everyone’s Interest” (2008) 12 U.C. Davis J. Juv. L. & Pol’y 453, 455.)

“But that’s not the law!”  I can hear these intellectually-dishonest judges shouting already.  “That’s just some namby-pamby touchy-feeling liberal writing some silly law review article!”

Well, how’s this for some law?

[T]he use of this technique is itself something of an affront to the very dignity and decorum of judicial proceedings that the judge is seeking to uphold.  (Tiffany A. v. Superior Court (2007) 150 Cal.App.4th 1344, 1355-1356 [59 Cal.Rptr.3d 363], quoting the United States Supreme Court in Illinois v. Allen (1970) 397 U.S. 337, 344 [90 S.Ct. 1057, 25 L.Ed.2d 353].)

Or maybe this?

[N]o California State court has endorsed the use of physical restraints based solely on the defendants’ status in custody, the lack of courtroom security personnel, or the inadequacy of the court facilities.  (Tiffany A., supra, 150 Cal.App.4th at 1358.)

What about this?

While we are sympathetic to the obligations and responsibility our conclusion may impose upon the juvenile delinquency court, the Sheriff’s Department and the People, those pale in comparison to the values we uphold.  (Tiffany A., supra, 150 Cal.App.4th at 1362, emphasis added.)

One last one, for now,

Although the Duran opinion was written in the context of a jury trial it has application to other proceedings as well.  Respect for the dignity of the individual and the court are values to be preserved whether or not a jury is present.  (Solomon v. Superior Court of Los Angeles County (1981) 122 Cal.App.3d 532, 536 [ 177 Cal.Rptr. 1].)

In the Duran case, by the way, the two defendants were in a courtroom where there was only one bailiff.  It was an adult court, so there was access to the outside.  The defendants had been charged with armed robbery.

The Tiffany A. case involved minors who had access to the outside and, if they could just get loose from restraints and away from a deputy, they could escape.  Nevertheless, Tiffany A. found that shackling is “anti-therapeutic for juveniles [and] antithetical to the rehabilitative aims of the juvenile justice system.”  (Tiffany A., supra, 150 Cal.App.4th at 1354, fn.7.)

Fresno’s judges seem to be unconcerned with the use of shackles in juvenile court.  The deputies want them.  There’s no one there to see inside the locked courtroom (except the attorneys, court personnel, families of the kids and possibly “victims” accompanied by their court-appointed hand-holders).  But,

[w]hile a primary concern regarding the use of physical restraints is the resultant prejudice if they are viewed by the jury, that is not the only reason for the limitation of their use. Also of concern is the potential unsettling effect on the defendant and therefore on his ability to present a defense, and ” ‘the affront to human dignity, the disrespect for the entire judicial system which is incident to unjustifiable use of physical restraints, as well as the effect such restraints have upon a defendant’s decision to take the stand.’ ” … As we have noted, the…rule of ‘evident necessity’ serves not merely to insulate the jury from prejudice, but to maintain the composure and dignity of the individual accused, and to preserve respect for the judicial system as a whole; these are paramount values to be preserved irrespective of whether a jury is present during the proceeding.  (In re Deshaun M. (2007) 148 Cal.App.4th 1384, 1387 [56 Cal.Rptr.3d 627], at times quoting People v. Fierro (1991) 1 Cal.4th 173 [3 Cal.Rptr.2d 426].], emphasis added.)

When the court does not know why a child has been brought to court shackled, then, at least for that period of time, these paramount values are being ignored, the court sacrifices its dignity and the only respect it gets is that which it can force at the barrel of a deputy’s gun or threat of incarceration.

I’m just sayin’.

According to the story, she’s not satisfied with trashing her own department’s budget: she now wants to go after the budget for the rest of the county.

Perhaps the funniest line in the entire story, though, is the quote from Mims about the supervisors:

They overstepped their authority. (Brad Branan, “Mims plans to sue supervisors” (February 6, 2010) The Fresno Bee, A1, col. 4.)

Now there’s an example of the pot calling the kettle black!

The Big Battle

The Big Battle between Mims and the Supervisors is over her attempts to balance a budget, which she allowed to go wildly out of control, by cutting the number of deputies (while maintaining the same number of supervisory personnel) and shutting down large portions of the jail to do so.

A story not long ago in The Fresno Bee (which really should consider changing its name to The Fresno Police Gazette, since the majority of their stories are about law enforcement and crime) indicated that Mims was planning to close down one-half of the jail.  Today’s story notes that last month, in preparation for shutting down even more of the jail, she released 1000 inmates.

As a criminal defense attorney practicing primarily in Fresno County, I’m not opposed to this.  We jail way too many people as it is.  And when someone is accused of a crime, any money they don’t have to pay out for bail can be reserved for…well, me.  So “catch and release” unless and until guilt is proven is just fine by me.  Who knows?  It might even start people to thinking that there’s a difference between an accused person and a convicted person.

But I can’t help wondering as I watch the Mims-versus-the-rest-of-the-world saga unfold what the next election for Sheriff is going to look like!

Mims Embraces “Outsiders”

There’s yet another way Mims’ move demonstrates her propensity to shoot herself in the foot.  The County Board of Supervisors is attempting to enforce the priorities they thought they were funding and which most (although, again, not me!) Fresno County citizens would endorse.  So far, the very public budget fight has been between Mims (presumably a Fresnan) and the Supervisors (also presumably Fresnans).  Call it a “family disagreement.”  But no longer.  The Bee indicates that Mims’ decision to sue may be fueled by “outsiders.”

Fresnans don’t take kindly to “outsiders” becoming involved in Fresno’s affairs.

How serious am I about this?

A recent spate of Letters to the Editor had citizens of Fresno writing to complain about people living in Clovis who poke their noses into Fresno’s business when they don’t even live here!

Many people living in Clovis work in Fresno, shop in Fresno, eat in Fresno and drive in Fresno.  For those outside the Fresno area who may not know this — and those insular-minded Fresnans who have been writing to the Bee — Fresno is the cancerous mole growing on Clovis’ backside.  Or maybe it’s the other way around.

The point is that they’re so closely intertwined that you can’t really tell them apart without a map.  Heck, on maps that don’t clearly outline the boundaries, you can’t tell even then!

Clovis is within Fresno County.  (And the Sheriff’s Department is a county agency.)  And many people living in Clovis, as I already pointed out, have significant ties to Fresno.

So if Fresnans are this upset about Clovisites poking into their business, imagine how they must feel about this additional factoid from the story in the Bee:  The meddling outsiders who apparently helped Mims’ find her balls and encouraged her to sue the Board of Supervisors are other Sheriffs she met while attending a conference over at the coast!

When asked, Mims herself refuses to comment on whether Sheriffs from other counties encouraged her to sue.  As a law enforcement officer well-trained in convincing arrested people to confess because “if you’re not guilty, you shouldn’t have anything to hide,” she knows better than to talk.  Not so the snivel law attorney who intends to defend her:

Other sheriffs are very concerned about what’s happening here.  (Brad Branan, “Mims plans to sue supervisors” (February 6, 2010) The Fresno Bee, A12, col. 5.)

Incidentally, that attorney?  Another outsider! The attorney who will spend the county’s money to defend Mims’ asinine lawsuit is Martin J. Mayer of Fullerton.  (Who even knows where Fullerton is?  I guess Fresno County’s Board will find out when they start sending Fresno’s money there!)

Statewide Posse to Teach Fresno Supervisors — and Us — Respect?

I can understand the law enforcement officers from other counties being concerned about this, though.  After all, if Fresno County insists on some accountability from the Sheriff for the money they give to her — essentially refusing to give her a pot o’ cash to spend as she pleases — then the elected supervisors of their counties might get uppity.  They’ll start wanting some civilian oversight over how law enforcement works.  The next thing you know, ordinary citizens might start thinking that law enforcement does not have absolute authority over the rest of us.   Then what happens to our police state?

As Sheriff Arpaio continues trying to demonstrate: law enforcement has to keep a tight rein on judges, court personnel, supervisors and other obnoxious citizens.

Clearly now is no time for Mims to say to herself, “I’ve already trashed one multi-million-dollar budget, resulting in a decreased ability to deliver necessary services.  Maybe I should stop before I further bankrupt the county.”

We must learn.  She will teach us:  “You will respect mah authoritay!”

This is preeminently the time to speak the truth, the whole truth, frankly and boldly. Nor need we shrink from honestly facing conditions in our country today. This great Nation will endure as it has endured, will revive and will prosper. So, first of all, let me assert my firm belief that the only thing we have to fear is fear itself—nameless, unreasoning, unjustified terror which paralyzes needed efforts to convert retreat into advance.   (Franklin D. Roosevelt, Inaugural Address, March 4, 1933, as published in Samuel Rosenman, ed., The Public Papers of Franklin D. Roosevelt, Volume Two: The Year of Crisis, 1933 (New York: Random House, 1938), 11–16.)

Yeah, so?

Today’s Fresno Bee carried a story about the Fresno mayor meeting with police officers, bypassing their union, apparently to discuss how the city might deal with upcoming budgetary shortfalls.  Fresno “is facing a $28 million general fund budget deficit over the next 18 months.”  (George Hostetter, “Fresno mayor meets with police on budget” (January 28, 2010) A3, col. 4.)  The Bee notes that “[a]bout 70% of the general fund goes to police and fire protection, and most of that goes to police.”  (Ibid.)

I’m not at all surprised.  Last night, leaving my office after dark, I had no problem seeing where I was going.  Red and blue lights lit up Van Ness Avenue near my office as the police pulled someone over in front of Club One.  Perhaps a mile away, as I prepared to enter the freeway, two more police vehicles lit up the freeway.  I was no close enough to see what poor citizen had screwed up so badly as to require two vehicles.

Now I don’t know what the number of law enforcement officers in the Fresno area is at any given time.  I do know that I can’t drive from my office to my home without spotting at least two or three law-enforcement-owned vehicles.  (One Sheriff’s vehicle is inexplicably parked less than a mile from my house as some kind of monument.  At least I think it’s a monument; seems that no matter when I pass, it’s always sitting out front of one of the houses in my neighborhood — the same house.)  I also know that on more than one occasion, I’ve been at a restaurant, or walking down the street, and I see the police stop a pedestrian (or a bicyclist) for what appears to be no reason in particular.  (For some reason, I see quite a few stopped bicyclists — and they’re usually African-American — I suspect Fresno and Clovis have laws against BWB (Bicycling While Black).)  If I’m on foot (as I often am downtown), or in the restaurant, I will move to where I can watch and try to listen.  Such heinous criminals are being apprehended that not infrequently one of the officers — there are often between 3 and 5 or more present — will leave the scene, cross the street and ask if there’s a reason I’m standing there.

But I can’t blame the Fresno Police Department for being nervous about people watching them.

All this tells me at least two things, but primarily it tells me we have too many law enforcement officers.  These guys are armed to the teeth and, apparently, they’re definitely not afraid to use their weapons.

Despite this, however, we are of late barraged with Fresno Bee stories telling us of the horrors to come because of cuts within the law enforcement ranks due to budgetary issues.  The story mentioned above was more of the same, complete with the moaning and whining of the president of the Fresno Police Officers Association, who doesn’t like the mayor talking to police officers, presumably because she might ask them to help us deal with the budgetary shortfall in some way that requires them to sacrifice like the rest of us.

Now, don’t get me wrong.  There are bad people out there.  And I’m not just talking about police officers.  So it’s not that we don’t need a police force of some kind.  But power is a corrupting influence.  Of late, we seem to have a surfeit of officers — both corrupt and not-yet-corrupt — patrolling our city like it was some kind of open-air prison, stopping citizens for no good reason other than that the officers apparently don’t have enough to do.  Except when they’re off arresting their wives for scratching their jointly-owned cars.

We don’t need to fear the loss of a few officers.  We probably don’t even need to fear the loss of another hundred officers.  In fact, if the Fresno Bee wasn’t repeatedly beating the drum of fear, we’d probably have nothing to fear at all.

In the end, I think that the only thing we have to fear is fear itself—nameless, unreasoning, unjustified terror which paralyzes needed efforts to convert a state that has nearly gone bankrupt because of law enforcement, excessively-restrictive laws and overpaid correctional officers into a nice state in which to live, which can provide real services to its citizens, like education.  Retreating from over-criminalization and the conversion of our state into the giant open-air prison law enforcement wishes it to be is the only real way for this state to advance the quality of life for all citizens.

Staying with the theme of apologies, I should apologize for treating this blog like the poor step-child.  As my regular readers will know, I have another law blog, Probable Cause: The Legal Blog with the Really Low Standard of Review. Partly because I like the name of the blog better — what more reason do I need? — and partly because it was intended to be more generic while this one has a regional focus, I tend to pay more attention to that blog.  It shows, too: the readership there is more than six times greater than here!

Enough of the apologies.  Well, mine, anyway….

The Fresno Bee today provides more than enough material for a Fresno-based criminal defense lawyer blog.  We have (more) officers shooting Fresnans, an ex-Fresno police officer on trial complaining because his fellow officers refused to help him beat the crap out of citizens and Sheriff Mims once again made the front page over her inability to properly manage the budget for her department.

As to that last story, there will be no apologies.  Not from Mims, anyway.  You see, it’s not really her fault.

Mims said she followed a recommendation by county administrators to raise projections for federal inmate revenue, because she had underestimated that revenue in the past.  The need to cut now shows her past practice made sense, she said.

[County Administrative Officer John] Navarrette said she was never advised to raise her projections, and that her office provides all of its own budget projections.  (Brad Branan, “Mims anticipates layoffs” (January 8, 2010) The Fresno Bee, p. A4, col. 3-4.)

Someone’s lying, but no, no apologies from Mims.  She’s always been right and the fact that her budget projections were wrong this time proves it because her past practice of being wrong made sense.  If only people would quit questioning her judgment and just trust her.

Trust was also a problem for ex-Fresno police officer Marcus Tafoya, who was fired in 2007 and is currently on trial accused of using excessive force on people attending a party for a Marine returning from Iraq in 2005.  (The story indicates his 2007 firing was connected with the 2005 incident, though doesn’t mention why it took so long to get from the one point to the other.)

[Tafoya] also criticized some police officers for standing around when he needed help.  (Pablo Lopez, “Ex-officer tells his side in case: Fear led to use of baton, he testifies” (January 8, 2010) p. A3, col. 5.)

Tafoya is not lying.  This is a little-understood, but not uncommon, problem among police departments, particularly here in Fresno.  A bunch of officers are called to quell a disturbance at a party.  They show up — some with batons at the ready — and the partygoers gets the jump on one of the cops.  The rest stand around, doing nothing.  Mostly, it’s from being in shock.  The police aren’t used to getting into fights.  Well, maybe with their spouses. Maybe with each other. Maybe with themselves. Maybe even with criminals. But not with partygoers! And that was clearly the problem here:

Tafoya said he told Stockdale, “if they resist, beanbag them.”  [In other words, shoot them, at close range, with shotguns stuffed with beanbags.]  But Stockdale froze, Tafoya said.  “He didn’t do anything,” he said.

Tafoya said when he needed help, “a lot of officers stood around and did nothing.”  He figured a lot of them were in shock from what they witnessed.  He said he finally had to bark out orders: “Are you going to stand around or put your hands on somebody?” (Pablo Lopez, “Ex-officer tells his side in case: Fear led to use of baton, he testifies” (January 8, 2010) p. A3, col. 6.)

As I said, not uncommon.  Fresno police officers hate to have to put their hands on somebody.  (This may explain why they shoot so many Fresno citizens.)  Fresno police particularly hate to resort to violence when, as Tafoya says happened here, two fellow officers are overpowered by groups of people, one of whom is apparently trying to get one of the officer’s guns.

Confronting the crowd, Manfredi [Tafoya's partner] was knocked to the ground, and three to five people jumped on the sergeant, Tafoya said.  Armed with a police baton, Tafoya said he started to pull the men off Manfredi.  Then he heard panic in the sergeant’s voice: Someone was trying to get Manfredi’s gun.  (Pablo Lopez, “Ex-officer tells his side in case: Fear led to use of baton, he testifies” (January 8, 2010) p. A3, col. 6.)

Despite the fact someone was trying to grab his partner’s gun, Tafoya was calmed by the sound of police sirens.  (Little known fact: training for this begins at a very early age in cop families.  Specialized mini-sirens are attached to the cribs of their children to lull them to sleep.)  Tafoya’s calm didn’t last, however, because he realized the police were not going to help him beat the crap out of the partygoers.

At least they helped arrest Rebecca Rodriguez after she gave him probable cause by cursing and pushing him because he was unnecessarily hitting people with his baton.  Reading the story, I couldn’t help but wonder why this is what gave probable cause for an arrest when, according to Tafoya, partygoers had already been trying to beat him and take his partner’s gun.

Nevertheless, Tafoya’s partner backs him up.

Manfredi said he saw a couple of dozen people fighting in the front yard, and that he was punched in the face.

Manfredi said he fell and began struggling with a man, and that he felt his gun coming out of his holster.  (Dennis Hart, “Tafoya’s Partner Testifies in Fresno Trial” (date unknown) KMJNow (last visited January 8, 2010.))

Still, you have to wonder why the other officers didn’t.

Another thing to wonder about is how Fresno’s new Office of Independent Review will handle its first opportunity to strut some stuff.  Yep, Fresno police officers have shot another citizen.  The new Director and sole “employee” of that new Office is Eddie J. Aubrey, who brings an insider’s knowledge to the job with 14 years experience as a police officer — nine from that most pristine of police departments in Los Angeles.

Personally, I’m not at all concerned that Aubrey’s experience will color his judgment.  After all,

Aubrey said his responsibilities include, “seeing exactly what is going on, getting updates from the the officers, finding out what’s going on in the interviews, what’s stated in the interviews.”  (Jim Guy, Paula Lloyd and George Hostetter, “Fresno officer shoots suspect” (January 8, 2010) The Fresno Bee, p. A3, cols. 1-2.)

Besides, one of the officers who shot the man in the back said he “appeared to go for a weapon.”  He’s probably telling the truth.  After all, if the guy wasn’t doing anything wrong, the officers would have used a baton, or tried to shoot him with a bean-bag round.

At any rate, so long as veteran-police-officer Aubrey is getting updates from the police officers handling the investigation, I’ve no doubt that Fresno can rest easy.

And so long as Aubrey rubber stamps what Dyer said at the news conference, as he is expected to do, nobody will have to apologize.

At any rate, it’s about time the Fresno Superior Court recognized that the Sheriff’s Department is not above lying.  I wonder if this will carry over to greater recognition of prevarication in the courtroom by individual officers?  (Hahaha!  Sometimes I make myself laugh!)  

It’s not often you see the Fresno County Superior Court calling it like it is, so when the presiding judge is talking about the Sheriff and says the court should have been “certainly less trusting,” you know things are bad. 

According to the Fresno Bee,

Court officials also say that the Sheriff’s Office falsified records once it became aware of not being in compliance with the contract.

The Bee is nothing if not fair and balanced in its reporting on local law enforcement, however, and gave the Sheriff’s Department the opportunity to respond. 

[Assistant Sheriff Tom] Gattie said the complaint was investigated by the office’s internal affairs, which found no wrongdoing. 

Imagine that.  The Superior Court for the State of California, County of Fresno, complains that the Sheriff’s Department not only overbilled them by more than a million dollars, but falsified records to cover this up once it was discovered and when the Sheriff’s Department investigates itself, it finds “no wrongdoing.” 

The reports were apparently created by the department’s new hands-off SFR system — the same one they use when writing up investigatory reports in crimes where accused people “consent” to unconstitutional searches of their homes and cars which turn up all kinds of illegal things. 

“SFR,” of course, stands for Self-Falsification System.  This is what allows internal affairs to investigate and find “no wrongdoing” whenever there appears to have been some wrongdoing.  The SFR is not human; it’s just computers.  Computers are not moral creatures.  Hence, when they can blame the SFR, there is “no wrongdoing.”  

Mark my words, next week a follow-up story will no doubt inform us the issue has been resolved: it was all a computer error.

At any rate, the Fresno County Superior Court may wish to take heed.  Sheriffs’ Departments do not take kindly to criticism by mere judges. 

And lest you wish to comment to tell me “Fresno is not Maricopa,” I can tell you that I was in court two weeks ago when a judge made a suggestion and the bailiff’s response was “No!,” followed by the only slightly less emphatic “That’s not how it’s done.”

Guess who backed down?

And guess who’s going to back down this time? 

If nothing else, you’ve got to give Sheriff Mims credit for knowing how to both keep the judges in line and make up for her budget shortfall at the same time. 

This “two birds with one shot” approach makes the Fresno Police Department’s need to use multiple bullets to kill one citizen look paltry in comparison.

Public safety is an investment, not a cost.  (Jerry Dyer, “Invest in our public safety” (December 8, 2009) The Fresno Bee, p.B5, below the fold.)

If nothing else, the article shows that Jerry Dyer has mastered The Art of Orwellian Logic.

To be fair to Orwell, we really shouldn’t call this “Orwellian Logic.”  If anything, Orwell railed against this sort of “doublethink.”  His work aimed to point out the “form of trained, willful intellectual blindness to contradictions in a belief system.” (“Doublethink” (November 17, 2009) Wikipedia (last visited December 8, 2009).)

Not that I’m accusing Dyer of having a shred of the necessary intelligence necessary to be intellectual.

Orwell explains that the Party could not protect its iron power without degrading its people with constant propaganda. Yet, knowledge of this brutal deception, even within the Inner Party itself, could lead to disgusted collapse of the State from within. For this reason, the government uses a complex system of reality control. Though Nineteen Eighty-Four is most famous for the Party’s pervasive surveillance of everyday life, reality control means that the population of Oceania — all of it, including the ruling élite — could be controlled and manipulated merely through the alteration of everyday thought and language.  (“Doublethink” (November 17, 2009) Wikipedia (last visited December 8, 2009).)

Thus, Dyer no doubt he actually believes what he says.  Otherwise, the burdens of hypocrisy would crush him.

Of late, the use of fear by the ruling élite to stop the rest of us from shaking off the complex system of reality control to see what really needs to be done and to re-direct our energies towards doing it has become commonplace.

Dyer is, at least in my opinion, less artful at that.  I hope.

Dyer’s article starts off with a discussion of Maurice Clemmons “ongoing criminal behavior and propensity for violence,” noting that it “should have been sufficient grounds for his continued incarceration.”  Maurice Clemmons, for those who don’t already know, is the guy suspected of gunning down four police officers in the State of Washington.

Two states, Washington and Arkansas, are busy pointing fingers at one another over why Clemmons was out of custody in spite of a history of violence.

(Clemmons, of course, is now dead.  What?  You think you can shoot that many cops and get away with mere apprehension and a trial?)

Dyer uses Clemmons to fan the flames of fear.

California prisons are filled with Clemmons types.  Many are suffering from mental illness and drug addiction and refuse to be rehabilitated.

Therefore, Dyer says,

The safety of our communities must be our highest priority and the foundation for government.  Police officers, prosecutors, jails and prisons cannot be seen as a burden or cost to government.  They are investments.

That’s right.  Investments.

You probably thought that funding hospitals for mentally ill people and drug rehabilitations programs for drug-addicted individuals was an investment.  You might even have thought that making sure to provide solid funding for education — to raise the educational and employability levels of people so they might not have as many problems leading them to commit crimes — was an investment.

Stupid citizen.

Our future is police officers, prosecutors, jails and prisons.  Therefore, providing funding for police officers, prosecutors, jails and prisons is an investment.  Everything else is a distraction.

Dyer’s argument, though, is the real distraction.  Dyer himself segues from fearmongering over “Clemmons types” to an argument that the release of “nonviolent-nonserious” criminals California is working towards will result in more murders.  Keeping everyone in prison is the only way to “invest” in our future!

But we aren’t “investing” when we fund ways to lock up more people.  We’re certainly not “investing” when the degree to which we fund ways to lock up more people depletes our pocketbooks so we can no longer afford to educate our children.  And make no mistake about that: right now, California is shutting down education in favor of continuing to fund police, jails and prisons.

And why is that?  Because the alternative is to release some people from the jails and prisons and not have a police officer around to tail their asses until we can lock them up again.  Nevermind that California is doing everything possible to ensure that “Clemmons types” do not get released.

Moreover, the majority of people in our prisons are not “Clemmons types.”  They’re people who could be helped by medical treatment, education and the other services our government is now busily de-funding so we can maintain our police, jails and prisons.

Locking up more and more people leads only to the need for more police, more jails and more prisons.  It does not lead to “public safety.”  It more readily leads to public depletion.

This is true because as long as we continue to be mislead by “Dyer types” and fail to fund education and health care, among other things, there will always be more and more “Clemmons types” to lock up.

Public safety is an investment.  But the increasing cost of more police, more prisons and more jails is keeping us from investing in it.

This entry is different.

In a recent case, I showed up in court only to learn that nobody seemed to have my case on calendar.  My notes — and the clerk at the front window of the courthouse — indicated that my case was on calendar, but none of the courtrooms had it on their calendars.  The end result was that, while this was being sorted out and I waited for the case to be called, I had the opportunity to sit and wait and watch.

I will not name the judge I was watching.  I don’t want him to be harassed for his fairness and his determination to ensure that everyone in the courtroom understood the legal reasoning behind the result he was handing down.

The result, by the way, was not what the accused, the accused’s attorney, or the accused’s family wished.  But after hearing the judge explain things, there did not seem to be any question that it was fair.

“Well, if that’s all true,” you ask, “why should you be considered that the judge would be harassed?”

The answer is simple: to do what that judge did takes time and time is something very few judges have in surfeit.

First, the judge was careful to hear all the parties; to give them an unquestionable opportunity to express themselves.  In this particular case, that included allowing the attorney and at least one family member speak.  Second, in explaining the ruling he was about to hand down, he was careful to do two other things: he made sure the accused person understood what he was saying and he explained the reasons for his disposition of the case.

Those two things are not the same thing, just differently worded.  As I’ve stated elsewhere (parenthetically, and leaving the issue for further explication in an as-yet-unwritten blog article), attorneys and judges too often use words that we understand clearly, because we have the education that teaches the meaning of those terms.  We forget, however, that a law school education — or any kind of advanced education at all — is not the norm.  In Fresno, for example, fewer than one out of every five people holds a college degree; yep, fewer than 20% of us graduate from a four-year college. That’s for a “lower-level” degree, not a post-graduate degree.  And some of those degrees are in criminology, which doesn’t set the highest standards for reading or deep thinking — as the spelling, grammar and “reasoning” in probation and police reports prove daily.

Now, I do not agree that Fresno is the dumbest city in America (as the linked article above suggests) or that Fresnans, in general, are stupid.  What I’m saying is that certain common “simple” legal terms such as the word “waive” in “waive your rights” are neither common nor simple to most people coming before a court.  Yet the court entertains — among numerous other “legal fictions” — that when it asks “do you waive your right to this-or-that?,” the accused person who answers “yes” gets it.  This is true even when the court can clearly see the accused and often scared person, realizing the court wants some kind of answer, turning to his attorney, who either nods or says out loud or mouths “yes,” which the client then parrots, completely (perhaps stupidly) trusting the attorney, but parroting nonetheless.

In adult cases, the disconnect between what an accused person believes has happened and what has actually happened is A Bad Thing™.  In juvenile cases, or any context where the aim is rehabilitation, it is A Horrific and Counterproductive Thing™.   If a kid does not understand what is happening in the courtroom, he probably does not really understand the connection between what is happening in the courtroom and his behavior prior to arriving in the courtroom.  Sure, he might get that he did something wrong and that what is happening is connected to that.  He might.  But surprisingly often, he does not.

So, for me, it is an amazing and wonderful thing that I got to watch a judge actually take the time to listen to the individual before him (and a family member) and explain not only what was going to happen, but to actually stop and explain the meaning of certain words.  In addition, the judge clearly explained why he was giving the particular orders that he was giving, instead of some other orders; i.e., the orders the defense attorney and family hoped for.  He explained the connection between the disposition and the behavior of the person to whom he was speaking.  Not only was it clear that the judge had carefully considered everything, but he had specific reasons for what he did.

In short, I was impressed that the judge took the time for judgment.

Friday’s court session made me realize I had no choice.

To get into a juvenile courtroom in Fresno County through the front door of that courtroom is impossible unless the door is opened from the inside.  For anyone.  It’s physically impossible.

To get out of that courtroom is impossible without a keycard.  Defense attorneys — except public defenders and employees of the firm that handles conflict cases the public defender cannot take — do not have keycards.  Obviously, family members of minors brought before the court, as well as the minors themselves, are also not given such cards.

Since it is nearly impossible to exit the courtroom, why are numerous minors brought before the juvenile court shackled?

In a word, it happens because of an illegal policy, and local judges who have chosen to thumb their noses at the California Supreme Court.  Fresno County, it seems, is not a part of the State of California.  We are not subject to the jurisdiction of the California Supreme Court.  Their opinions are advisory only.

About the middle of this past year, I attempted to challenge the policy because the California Supreme Court has clearly held that the reliance on “policy” is illegal.  The essential circumstances are outlined in this linked brief.

The immediate upshot of my objection was that the court allowed the Sheriff’s Department a couple of hours to come up with an excuse for investigate why the minor was shackled and ordered requested they have someone present in the afternoon to state the excuse provide the reason for the shackling.  During that time, the minor was apparently kept in a cell adjacent to the courtroom, because when I attempted to visit him at the Juvenile Justice Campus, I was told he was not there, that he was in the cell adjacent to the courtroom and that there was no way that the Juvenile Justice Campus could contact anyone to inform them I wanted to visit the client.  The Juvenile Court, it should be noted, is located on the Juvenile Justice Campus.

During the afternoon session, the sole witness was a deputy who had researched the issue.  The prosecutor led him through a series of questions about the minor’s behavior during six months of custody.  The minor had been a bad boy.  He sometimes yelled at other minors.  He occasionally broke the rules by, for example, banging on his door or not standing up properly in line.  Over a six-month period, there were — as I recall — a couple dozen incidents.  (A later attempt by me to argue that this was a fairly typical record for juveniles in the pod met a retort from the court that there was no such evidence before the court and that the court believed “most” juveniles in the pods followed the rules.  Any juvenile defense lawyer can tell you otherwise.  Next time, I will put “a few” witnesses on the stand who can testify about such things under oath.)

On cross-examination, the deputy stated that he had never seen, nor was he informed of, any incidents involving the minor being disruptive in court, or on the way to court.  I periodically noted, for the record, that my client had sat quietly next to me throughout the proceedings — at least once pointing out that he had responded to questions from the court by appending the honorific following his response.  The deputy further testified, under oath, that the policy of the Sheriff’s Department was to shackle all juveniles wearing purple shirts.  The purple shirts apparently signified that they came from a particular pod.  The criteria for being placed in the pod was either unclear or unknown.  (My own experience shows that it does not seem to be necessarily related to behavior.)  The deputy was not sure why “purple shirts” were shackled, merely stating that was the policy.

Notwithstanding the testimony of the deputy making it clear the minor was shackled because “that was the policy,” the court held that he was shackled — as the law allowed — for particularized reasons.  Although I had argued that the particularized reasons should relate to behavior within the courtroom, the court rejected this, going on to state specifically that he was shackled because of his “disruptive” behavior while in his cell, or in the pod.

The court then made the rather astounding statement, on the record, after having found that there were particularized reasons why the minor needed to be shackled during the proceedings, that:

It’s just an arraignment where a plea or a denial is entered.  We do not have a trial.  We do not have a disposition and the Court finds that there are safety concerns; there are disruptive concerns based upon the nonconforming behavior that the minor has demonstrated while he has been in Juvenile Hall.

Now that having been said, the minor has behaved and done extraordinarily well in court.  There is no reason for me to believe that he wouldn’t.

Let me repeat that.  The judge stated that the minor had behaved “extraordinarily well” during the hours spent in court that day.  He went on to state “There is no reason for me to believe that he wouldn’t.”  No reason!

So why were the restraints necessary again?

Before I could get the copy of the transcript and complete a writ on the issue, the misdemeanor case — did I forget to mention that it was a misdemeanor case? — was dismissed “in the interests of justice.”  This is often a euphemism for “we don’t have enough evidence to move forward, but we don’t want to say that on the record.”  I cannot prove that my making it clear I was not going to drop the matter is the reason for the dismissal.

Immediately after the hearing, I revised a form I utilize for keeping progress notes on my cases in court.   At the top, I added “OOC/IC” for “out of custody/in custody.”  Next to that, I have: “Shackles? Y N CO NA” — “Yes  No Cuffs-Only Not-Applicable.”  Whenever I go into court now, I circle the appropriate acronyms.  Suffice it to say that I intend someday that this will be useful.  (If only I could convince other defense attorneys to keep track.)

I was pleasantly surprised to note for quite some time that my clients were not coming to court in shackles.

Okay.  So now we get to what I mentioned at the beginning of this post: Friday’s hearing in another juvenile case.   My client is brought into court and he’s in shackles.  I noted that he’s been present numerous times in the past without shackles.  I asked the reason he was shackled this day and, of course, nobody knew.  The court asked the bailiff to find out.  The bailiff invoked the presiding judge’s “one-hour-to-find-an-excuse-reason” rule.   She had, meanwhile, called for backup the minute I started complaining about the shackles.

Her supervisor having arrived in response to the call, the court suggested that the minor be unshackled and the extra deputy remain in the courtroom; there being two of them, it would be that much harder for my client to escape the locked private enclave where the public cannot see what is happening.  It would also be harder for him to jump up, get around the (fairly massive) table and sprint the 30 feet or so to the hyper-elevated bench before the two deputies accidentally shot the judge to death or mistakenly tasered his clerk.

Still, that seems reasonable, doesn’t it?  Remove handcuffs for a kid — a kid! — who was there to be told he was going to a group home before being reunited with his parents, and allow two armed deputies to stand nearby instead.

“No! That’s not how it’s done!,” exclaimed the bailiff.  And, I kid you not, she used her “stop right there” voice.  The judge (quite briefly) looked startled.

Now if I had used that tone, or spoken those words, to a judge?  I probably would escape tasering, but not a tongue-lashing.  (I know, because I once made the mistake of muttering to my client in a near whisper, “Or as the Constitution does” when a judge told me I would get as much time to cross-examine someone as he allowed.  But that’s another story.)

The judge, however, did not respond to the bailiff as he would to me.  Perhaps it’s because she’s armed.  Instead, he said, “Oh…okay.”  I looked at him and said, “The law says the judge is in control of his own courtroom,” but was told in no uncertain terms that “we aren’t going to get into that.”

After consultation with my client, he decided that he wanted no further delay and was willing to proceed with the hearing, ignoring the shackling issue.

But here’s the kicker:  As I was being escorted from the courtroom — remember, it is impossible to get out unless the bailiff unlocks the door — I asked the bailiff why my client was shackled today, when he has never been shackled before.

Her response?  “Our policy hasn’t changed, Mr. Horowitz.”