According to this blurb — you can’t really call it a “story,” or even an “article” — in the Fresno Bee, the Tulare County Sheriff has told a medical marijuana user that has he taken one step over the line. The line to which I refer is “the line at which you are in violation of California’s medical marijuana laws,” since legally those are the only ones a California Sheriff can enforce, unless he’s part of a cooperative effort wherein he’s providing support to a federal raid. The claim here is that with 93 plants, the medical marijuana user is “cultivating more of the drug than allowed under medical marijuana regulations.”

While that is possible, it is highly unlikely.

What’s more likely is that the Tulare County Sheriff does not know the law and Tulare County has become flush with cash such that they can endure a lawsuit or two.

Since even a lot of medical marijuana users are confused on this point, let’s look at why I just said that.

First, though, let me point out that I’m not writing a law review article here; I’m writing a blog post. Under normal conditions, I would nevertheless document everything I write, in order to show that — unlike the Tulare County Sheriff — I’m not just blowing it out my ass. However, I’ve already written one blog post today and wasn’t planning to write another when I saw this story. Based on the story alone, though — and the comments being left by ignorant readers of the Fresno Bee (how can we expect them to have any intelligence on this issue? the Bee refuses to report the law accurately), there is so much misunderstanding out there that I cannot ignore it.

So you can trust me — or not — that what I’m writing here is based upon my training, experience, and education regarding medical marijuana laws in California. Again, unlike the Sheriffs in this part of California, I am not constipated and full of…well, let’s just call it “fertilizer.”

Much of what I have to say will rely upon the California Supreme Court case of People v. Kelly, from January 2010. It’s only just over two years old now, so this could explain the ignorance of local officials regarding the Opinion of the Supreme Court. But just in case a sheriff, sheriff’s deputy, or attorney for the County of Tulare happens to read this, I’m going to try real hard to stick to short sentences and small words.

In 1996, the voters of the State of California approved proposition 215. Many educated people know proposition 215 as the “Compassionate Use Act,” or “CUA.”

The first thing the CUA did was make the prohibition — for the Sheriff, that means “ban” — on growing marijuana not applicable to medical marijuana patients, or their caregivers.

There’s a whole lot of law on what constitutes a caregiver, and I’ve probably already blown the minds of any local officials reading this, so I’ll just say that they don’t impact the question of “how much marijuana can you grow?”

In fact, that question — “how much marijuana can someone grow if the medical marijuana laws apply to them?” — is exactly the question that People v. Kelly is about.

Before we get to the very simple answer given by the California Supreme Court, let’s talk about why they were dealing with this question.

I already said that in 1996, the voters passed the Compassionate Use Act. As I also said, the CUA removed the ban on growing your own medical marijuana. The only conditions were that a doctor had recommended you give marijuana a try. You don’t need “a prescription,” as some people erroneously think. You don’t need a written recommendation, either. Another misunderstanding is this: no specific amount of marijuana needed to be specified. Or, as the California Supreme Court stated:

Nor does the CUA specify an amount of marijuana that a patient may possess or cultivate; it states instead that the marijuana possessed or cultivated must be for the patient’s “personal medical purposes.”¹

Thus, you could actually have a discussion with your doctor that went like this, and it would be perfectly legal:²

“Hey, doc. I’ve heard that marijuana might help with this problem I’m having keeping food down because of my chemotherapy. What do you think?”

“Well, it might. You could give it a try and see if it will do you any good.”

“How much marijuana should I use?”

“Well, we really don’t know a lot about that, because the federal government is too fucked up to let anyone do any significant studies. On the plus side, you can’t really overdose with marijuana, so why not try putting a little in your food or, if you prefer, you can smoke it, and see what happens”

“Okay, doc. Sounds good. I’ll give it a try.”

You are forgiven if you thought there was more to it than that. After all, law enforcement can’t read, either, and they have a reason to know the law, whereas you might not. You’re also to be forgiven if you thought that this would mean that law enforcement might actually learn the law they are charged to enforce and would quit arresting medical marijuana patients who grew their own marijuana. (Damn. That sentence may be too long for a sheriff to understand. Plus, it’s subjunctive.)

Anyway, there was some confusion, because local officials in various parts of California still wanted marijuana to be illegal, even for medical purposes, and, since it wasn’t, they thought the law was “vague” and kept arresting people even though they weren’t supposed to.

So in 2003, the California Legislature decided to “clarify” things. They passed the MMPA, or Medical Marijuana Program Act.

Now there was a lot of weeping and gnashing of teeth within law enforcement when this happened, because the Legislature didn’t just make marijuana illegal again. (You see, they couldn’t, because the voters had changed the law. But we’ll get into that more in a minute.) On the other hand, the Legislature did put limits on how much marijuana a person could have. Because, they noted, law enforcement — Sheriffs, that’s you! — were getting confused over the whole “there are no limits” thing, and kept arresting medical marijuana patients. The Legislature said they wanted to provide guidelines so that the law enforcement officers would quit arresting people who shouldn’t be arrested.

It didn’t work, of course. The Sheriff went right on arresting people. But sometimes those people had more marijuana than the MMPA allowed, so everyone thought it was okay.

Until People v. Kelly.

I should add that while the MMPA limited the amount of marijuana people could have, it recognized that the limits might be too low for some patients. Therefore, the law allowed that you could have more than the specified amount, so long as a doctor said that you needed more. For reasons that don’t matter here, there also developed a belief in the medical marijuana user community that the feds would leave everyone alone as long as they had less than 100 plants. I think this is when doctors started writing these silly recommendations — sometimes erroneously called “prescriptions” — stating that a patient was allowed to have 99 plants.

The truth is that no one — probably not even the doctor — knows how much medical marijuana a particular patient is going to need because, as I mentioned above, the feds have their heads up their asses and there aren’t enough studies, nor is there any kind of regularization in the delivery system (i.e., the plants) to figure out dosages. In fact, the California Medical Association had specifically told doctors:

A physician should avoid … [o[ffering a specific patent individualized advice concerning appropriate dosage timing, amount, and route of administration.³

At any rate, this guy Patrick K. Kelly comes along and gets his butt arrested for having more marijuana than the Medical Marijuana Program Act “allowed.”

Obviously, then, he was breaking the law.

Not.

The California Supreme Court pointed out what everyone who could read and remember things and didn’t have an axe to grind already knew. And we’re going back to small words and short sentences for local officials who may be reading this.

The voters passed the Compassionate Use Act. The Compassionate Use Act did not have any limitations on the amount of marijuana a medical patient could grow, so long as he only grew it for himself.

And — funny thing — California has a Constitution. That Constitution says that what the voters have done, the Legislature cannot undo. Thus, the voters specified no particular limitation for the amount of marijuana a patient could cultivate, possess, or use. Therefore, the Legislature could not specify limits to how much marijuana a patient could cultivate, possess, or use.

Therefore, the California Supreme Court said, the part of the MMPA that added limitations to California’s medical marijuana laws was void. (Sheriff: That means it’s not the law. So there are no limitations under the CUA, except that it has to be for the patient’s personal use.)

The Court left the rest of the MMPA in place. That’s important, too. Because the MMPA made additional changes, including allowing medical marijuana patients and caregivers to do certain things cooperatively and collectively, thus impacting this whole “you can only do this for your own personal use” thing.

But that’s an issue for another blog; another day.

The big problem with all this — and the place where the Tulare County Sheriff ends up spouting bullshit (and he’s not alone) — is this: many local ordinances were drafted on the same model as the original MMPA. In Fresno County, for example, limits were placed on how much marijuana a patient could grow. Those limits are, if I recall correctly, almost identical to the limits in the original MMPA. A couple of years ago, I happened to see a similar document being passed out by the Tulare County Sheriff’s Department to medical marijuana growers. It had nearly the same limits.

But guess what?

If the STATE Legislature cannot place limits on the amount of marijuana because of the CUA, neither can any LOCAL governments. State law trumps local ordinances. For more on that, see my article “Dispensing (With) Law: Strict Constructionism & Medical Marijuana.”

That’s why the Tulare County Sheriff is almost certainly full of fertilizer if he said that the patient he arrested “was found to be cultivating more of the drug than allowed under medical marijuana regulations.”

This isn’t a case of a medical marijuana patient being one step over the line. Sweet Jesus! It’s a case of California’s law enforcement agencies saying, “We absolutely do not give a flying fuck what the voters of the State of California, or the California Supreme Court, have to say about this. We will not allow medical marijuana in our communities.”

In other words, it’s a big “fuck you” to everyone, not just medical marijuana users.

You might be okay with that today, because you don’t like medical marijuana, either. But you should be very, very concerned about a Sheriff’s Department that is willing to ignore the law, the voters, and the California Supreme Court.

Because across that line lies fascism.

Tip of my hat — if I wore one — to Bunny Chafowitz for alerting me to the insane Fresno Bee blurb.

Comments

• April 25, 2012, Brenda Linder writes: Good catch, and response, Rick. It still amazes me. When I first started working in this area of law I ignorantly assumed our local law makers and law enforcement actually knew the laws they were working under, sworn to enforce and uphold. Not so much. The law makers surprised me the most. Local laws are made based on incorrect state law, stated into the public record and then repeated to the media for good measure. It is literally the dissemination of the law local politicians wish for, but is not the truth. Then they send out deputies and officers to arrest individuals who although are in compliance with the governing state laws, are not in line with local politicians incorrect interpretation of the law. Everyone, as you stated, should be afraid of this practice, regardless of their feeling toward marijuana. The only addition I would make to your blog is that the "limits" in the MMPA were not maximum limits...they were minimum limits. The Legislature stated that local jurisdictions could allow more than the 6/12 mentioned in the MMPA, but not less than the 6/12 plants.
• April 25, 2012, RickH writes: That's a good point about the limits. What actually happened, though, as I recall, is that local officials adopted those as maximum limits. At least that's what I recall from when I reviewed the papers the Sheriff was handing out in Tulare County.

Related posts:

• A Criminal Society
• Time to Fight Back?
• Building a Nastier World Through Law

1. People v. Kelly, 47 Cal.4th 1008, 1013, 103 Cal.Rptr.3d 733 (2010) (emphasis in original).
2. I’m talking with regard to California law here. The feds are different. Under federal law, no medical marijuana laws are recognized. Primarily because President Barack Obama is a liar.
3. Kelly, supra, 47 Cal.4th at 1018, fn. 10.

Why?

Because Fresno’s law enforcement officers — particularly in courthouses — are no different than those elsewhere in the country. As Fresno attorney Peter Sean Bradley put it:

The militarization of the police is a problem. It seems to have fostered the attitude among the police that they are a kind of occupying power in a conquered nation of people who are criminals who have just not been caught yet.

Or to be more blunt about it, in the minds of law enforcement: “Our job is subjugation. We have no legal restraints. Resistance is futile.”

The Fresno Police Gazette, also known as the Fresno Bee, comes about as close as they can to being “fair” in the story. That is, as close as they can. It is no secret within the legal community that local news media won’t report the depth of depravity within local law enforcement departments because they’re afraid they will “lose access.” So while they do try and frequently get a portion of the story right, what the local news media won’t do is report that an officer has overreacted.

Besides, it makes for good theater — particularly when we’re talking about video news reporting agencies. For example, last month when a deputy ordered a judge to leave the courtroom after he apparently decided they were talking to someone else during a courtroom scuffle with a distraught family member in a murder case and ignored the initial commands: now that was good theater, even if the deputies overreacted and decided they were going to commandeer the judge’s courtroom. Of course, sometimes when deputies are overreacting, they don’t immediately recognize they’re abusing a judge; other times, it’s just because they don’t like what the judge is doing – that’s because the default mode for “handling” citizens is to force compliance, regardless of whether or not there is a need for it.

This latest incident involved the deputies attempt to confiscate a toy — yes, let’s make sure that’s understood: however much people want to keep calling it a “plastic wrench,” as if that makes it more ominous, the deputies decided to confiscate a toy.

It makes for more excitement to call it “a plastic wrench” and avoid the use of the word “toy.”

After all, we wouldn’t want anyone drawing comparisons between the Fresno County Sheriff’s Department and TSA, which was recently in the business of confiscating toys from mentally-disabled special-needs autistic individuals in diapers.

Yeah, we couldn’t have that. After all, TSA admitted that they made a mistake and said that “better judgment was needed.”

Those words are not in Sheriff Mims’s vocabulary unless she’s applying them to someone her deputies have attacked or beaten.

Rick Berman is, as the Bee reports, one of Fresno’s “high-profile defense attorneys.” He is a former Chief Deputy District Attorney, which means he had some significant time and experience in and had been deemed by the District Attorney’s Office to be someone of good judgment. He is not known for being stupid. And he is 65 years old with back trouble.

I guess you can see where I’m going with this: I have significant doubts that Rick Berman attacked a deputy in a courthouse lobby full of deputies. Is it possible? Sure, anything is possible, particularly when you consider that good and intelligent criminal defense attorneys realize the joke that is courthouse security. If I’m a deputy district attorney, I can flash my badge and pretty much sail right on through security. No need to run my bags through the x-ray machine. Hell, if I’m a defense attorney the bailiff likes, I might get away with it, too. I might have a gun in my bag, but the deputy “knows” I’m a “good guy,” so he isn’t concerned to check.

Of course, the only time I’m aware of in the history of the central valley that an attorney has actually ever committed an act of violence in a courthouse, it was a prosecutor. That was when a Deputy District Attorney set the Madera courthouse on fire. That fire caused between $1.5 and $2 million dollars in damage.

Based on my own personal knowledge and a Google search, I am aware of no other incidents involving attorneys attacking anyone or committing any acts of violence inside a central valley courthouse.

Nevertheless, most defense attorneys check our bags through the x-ray machine. No badges for us.¹ In Madera, we do the same “remove the belt, turn on your cellphone and (sometimes) your computer” that everyone else does.

As outrageous as this is to those of us who believe in the United States Constitution, like the TSA harassment of the autistic disabled person which stopped one plastic hammer, but missed the one in his mom’s bag, these procedures do pretty much nothing to make us safer. Attorneys tend to be smart people and could sneak things through if they thought about it. But you don’t have to think about it: I’ve known of attorneys who accidentally brought weapons to court. Fortunately for them, no one caught them “trying to smuggle” them in during the “security” check.

So how good is the security check, really?

To law enforcement and the judges, it doesn’t really matter in the end. This is because it’s not really about security; it’s about creating an attitude of subservience.

And that’s why I don’t believe the Sheriff Department’s statement that Rick Berman shoved the deputy. I’ve seen with my own eyes — and you can, too — how the police can become upset and attack someone for asking questions, even if you’re lost and just asking for directions, or just for watching them. It doesn’t matter who you are, even a reporter doing a story. (There are non-video stories about reporters being arrested for asking police questions, as well.)

Afterwards, law enforcement is happy to lie about what happened. (Watch the video in that last story. It’s long, but absolutely will floor you.)

The reasons for this are simple: the job of the police is to suppress citizens. There are no exceptions.

I’m not saying Rick Berman did not do what he was accused of. I wasn’t there. I haven’t seen it. (I’m not sure why law enforcement doesn’t just give video to the reporters, by the way. It happened in the courthouse where everything is filmed. But, on the other hand, since the Fresno Bee is willing to report their allegation without the need for validation, why should they turn over evidence that might exonerate Berman?)

Frankly, I think it’s much more likely that the officer — who knows that she can throw her weight around and that her fellow officers will protect her — attacked Berman, than that Berman, who is a smart and well-respected criminal defense lawyer and former prosecutor, attacked her.

Comments

• March 21, 2012, Rick writes: Here's another incident from today. As I said, bailiffs are beginning to think this is their birthright. http://www.chron.com/news/houston-texas/article/Houston-attorney-jailed-for-alleged-courthouse-3424347.php And it will continue until people start arming themselves and being willing to fight back.
• March 29, 2012, deep sandhu writes: the police dept. is damned if they do and damned if the don't in the mind of some. If they do not search horowitz when going into the courthouse they are thought of as lazy and not really doing their job. If they were to search the briefcase/bag of horowitz then they would be harassing the poor man. The police cannot win in this scenario.
• March 29, 2012, RickH writes: They are only "damned" for searching in the minds of sheep and idiots who believe that American citizens should be searched without probable cause. There is no probable cause to believe that everyone coming into the courthouse is engaged in the commission of a crime, or carrying evidence of a crime. And under the United States Constitution, that is the only basis for a search. But our governments no longer care about the Constitution, or freedom, because once every 20 years or so, something might happen.
• March 29, 2012, deep sandhu writes: The police are our greatest asset especially in times of trouble. The freedom we have to simply walk the streets and have a reasonable expectation of safety is due to our brave men and women in blue. They are both underpaid and underappreciated for how they protect us and give us a society (at least most of the time)that we can manuever about in safety. God bless the men and women of the Fresno Police Dept.
• March 29, 2012, RickH writes: You clearly don't know what you're talking about. Do you know what they're paid? Do you know what they do? Many people -- especially in minority neighborhoods -- do not have freedom to simply walk the streets and have a reasonable expectation of privacy because of "our brave men and women in blue." But you keep drinking the Kool-Aid. They depend upon people who won't question what they do in order to continue to do what they do.
• March 29, 2012, deep sandhu writes: I question everything and everyone. I have been watching police operate with professionalism for as long as I have been alive. I had two call them twice in the past because of burglaries and was treated very kindly and professionaly. I thanked God for the police both times. God bless our boys (and let's not forget our girls) in blue. If loving the people who put their lives on the line to protect me and people they will never really know is wrong, then we are living in dangerous times.
• March 29, 2012, RickH writes: I'm going to start changing your name on future comments to "Pollyanna Chatterbox." As I've written before, the police do a good job. But, of course, you want to fill my blog comments with posts blindly praising the police, because you don't like my criticizing them, even when what they do is wrong. Start your own blog and praise away.
• March 29, 2012, Pollyanna Chatterbox writes: I know exactly what they are paid because my cousin is a cop. And they are very much underpaid. It is a dangerous and under appreciated job with hardly any upside. The men and women who do it, do it at their peril. They put their life on the line every single day. And that thought humbles me and it should humble everyone reading this. Sure, once in a great while a cop may stray from the path but aren't there bad apples in any profession. Is there one profession in which I could not find someone misbehaving? If there is pleast tell me.
• March 29, 2012, RickH writes: Police officer salaries are above-average salaries for the area. Especially when you consider that many of them only have high school diplomas and can't read or write standard English. Google is a wonderful thing. So is the Freedom of Information Act.
• March 29, 2012, Pollyanna Chatterbox writes: you amuse me rick. you can give heat but you cannot take it. You cannot stand to be challenged. Perhaps if I had your mindset I would not welcome that situation either. Be well, ds
• March 29, 2012, RickH writes: Yes. I hate being challenged so much that I've stopped approving your posts. (Oh, wait. I haven't.) If you want to live here all day and be a cheerleader, that's fine. I try to provide a more balanced and honest view. And if you were reading more posts, instead of living here all day on this one, you'd know that.
• March 29, 2012, Pollyanna Chatterbox writes: I actually like you rick. You many not believe that but it is true. It is just that you sometimes go overboard in your persecution of law enforcement. In some of the scenarios you comment on and construct the police are often put in a no win situation. Neither one of us would like to live in a world without law enforcement I imagine. I do admire the work that you do. It is necessary because sometimes cops do cross the line. And when they cross that line and use the color of authority to cross it they pose a grave (in more ways than one) threat to society.
• March 29, 2012, RickH writes: Wonderful. Again, though, you may wish to read more of my writing. It's entirely possible to disagree without hating being challenged. That I think you're an uneducated cheerleader does not mean I hate what you're saying. I think it's ignorant, but if you want to cling to your beliefs, I have no problem with that. If you decide, however, to stop speaking out your nether regions, you should at least note that I've already said in the past that I wouldn't want to live in a world without law enforcement. You wouldn't have to imagine if you actually read some of my other posts. It's entirely possible to criticize things that someone -- including the police -- do and note the problems that have developed. It's only when the ignorant chatterboxes come along and complain because not every post is a cheerleading post that I remember some people can only think in binary mode. So, I'm glad you "actually like" me, but I don't really care.
• March 29, 2012, deep sandhu writes: c'mon rick, like me back. It won't cost a dime and I will still respect you in the morning. I do agree with you about cheerleading posts. Actually I am probably more critical of police than you are. I just like getting you going by playing the devils advocate role on occasion. Hearing from the loyal opposition helps keep our mind sharp. Although I must say that your mind is usually fairly sharp. Keep up the fight, and I mean that without any sarcasm. Your work work is appreciated.
• April 26, 2012, Chief661 writes: Rick I really appreciate your blog, but the Police State stuff raises my BP. I had not seen the kind of attitudes by the PD until I moved here (for work) from my former home (PA). For years I worked with the PD back east (PA and MA) when I was a paid-on-call/volunteer FF and volunteer EMT. From time-to-time I would see the arrogance and the badge heavy approach, but nothing like I have seen here. It is getting worse.

Related posts:

• Shooting Holes in the U.S. Constitution
• A Jury of His Pears
• 234 Years

1. Ironically, in one of the most fascistic counties in the central valley — Kings County — attorneys who wish to do so can pay $15 for a county badge so we can sail through security just like the big boys in the District Attorney’s office.

The article then goes on to do just that: blame the clashes on realignment.

There are just a few problems, beginning with the opening. 

As we join (online version) our intrepid reporter, Kurtis Alexander, we learn:

Fresno County Jail inmate Jose Cuevas last week drove a pencil into the neck of cellmate Troy Phillips 22 times, according to Sheriff’s Office reports.

While sheriff’s officials still are searching for a motive in the attack, it’s the latest in an uptick of jail violence that they say is likely tied to new responsibilities handed down by the state.

“This is a rougher crowd in the jail,” said Assistant Sheriff Tom Gattie, who runs the Fresno County Jail. “There’s more gang involvement. There’s more criminal sophistication.”

There’s more bullshit.

For starters, it would appear that neither Jose Cuevas nor Troy Phillips — both of whom are still in custody — are in jail as part of the realignment program. I’m not going to provide the link, but it is possible to check on any jail inmate via the Internet. Both men are currently showing up as being in custody for burglary charges: Cuevas for first-degree burglary; Phillips for second-degree burglary. Cuevas now also has a pending charge for “attempted murder (jail only).”

Since both are showing up as eligible for bail, neither would appear to be there as part of realignment. It may be that I’ve missed something, but the last time I heard, inmates on local prison commitments are not eligible for bail.

This farce is carried forward by a quote from Sheriff Mims. Sharing the Fresno Bee’s lack of concern for the truth, Mims allegedly states:

Our inmates have more violent histories. … Before, they would have moved on to prison. Now they’re staying here.

Yes, they’re staying here. This is especially true where, as with Cuevas and Phillips, their cases are apparently not yet resolved and there is nothing to send them to prison for.

The story goes on to claim that “Jail records” indicate “during the first three months of realignment, an increase of nearly 20%” over violence for the rest of the year. Mims then states that it’s too soon to know how much of this is due to realignment. “But they’re a likely factor.”

Why? Because she said so.

The Fresno Bee is happy to continue spinning from there.

Somehow, a few actual facts leaked through, however. For example, at one point, the story states:

Under the realignment, counties are handling non-violent felons, not just the lower-level convicts they had previously managed.

Later, we learn:

Violent inmates and sex offenders remain under the purview of the state.

As I said, those are actual factually-correct statements. Under the rules for sentencing colloquially known as “AB 109,” anyone convicted of a violent crime — and some non-violent ones — will still be sent away to prison. Even under realignment, people who commit violent crimes go away. They do not stay in local custody. Thus, realignment is not causing violent criminals to be kept in Fresno any longer than they were kept in Fresno before realignment.

Despite this, we’re told — under the sectional heading “Fears playing out” — that things are getting so bad that,

Inmates have taken note of the propensity for violence at the jail, too.

So terrible is it, the Fresno Bee tells us, that four inmates have sued saying they’re subjected to violence due to the jail’s layout and staffing issues.

Sort of. The lawsuit appears primarily to do with inadequacies alleged in the health and mental health systems at the jail. The “needless dangers” mentioned in the sensationalized headline appear, based on the actual story, to relate to not receiving adequate healthcare.

And, of course,

The lawsuit cites problems with the jail before the realignment kicked in.

Toward the end of today’s story, after having used their clash as an example of “FRESNO COUNTY JAIL VIOLENCE ON THE UPSWING: [with] Clashes blamed on realignment,” the Bee reporter finally tells you what I told you at the beginning. Phillips was in jail “on suspicion of burglary.”

Well, yeah, but, but, but, but, but…

[I]f convicted he would be eligible for staying in the county jail and serving his sentence there instead of going to prison, per the realignment. (Emphasis added.)

How terrible! He’s the victim of violent crime. He is suspected of a non-violent crime himself.

Clearly realignment is screwing everything up. It’s increasing violence in the jail. We’re keeping too many dangerous people here.

Oh, and Cuevas — who is also currently in jail on suspicion of charges which have not yet been proven — if he is convicted, will serve his time in prison.

In short, Kurtis Alexander wrote a bullshit story about an alleged increase in violence at the jail brought about by the misguided efforts of the State of California to comply with the terms of the United States Constitution and a system which is breaking the financial back of the State. The closest thing — the only thing — that might actually count as evidence of this claim is “Jail records” that Alexander says show “an increase of nearly 20% over the rest of the year” for a short three-month period. (He also states that “[i]t’s a 34% bump over the same period the prior year.

Given the numerous other problems with the story, I have my doubts about that claim as well.

The reason we cannot resolve these problems, though, all comes down to money. Bullshit, spun properly, sells papers. This is true whether we’re talking about medical marijuana, AB 109, sexual offenders, the need for stricter laws, and just about anything else related to social issues or the legal system. Actually telling the truth just isn’t as sensational as blowing things out of proportion and scaring the shit out of people.

If we allow medical marijuana patients to get their marijuana, people might start to wonder why we have come to view this “gateway drug” as so dangerous to society. If we accept the thinking behind AB 109, we might begin to wonder why we’re incarcerating so many non-violent offenders anyway. If we recognize the truth about sexual offenders, there will be fewer boogeymen and more productive citizens, which will reduce the number of probation officers needed in our state. If we don’t have stricter laws, we might find that it’s actually possible to reduce the number of prisons “needed” in California.

We might actually start to hear more common sense statements from those who know what they’re talking about, like this:

Whatever else we do, we must remember prisons are important in the fight against crime. As a prosecutor long ago, I looked into the heart of darkness, the evil that drives the most hard-core of criminals. There is no doubt that serious violent offenders need to be locked up for a long time to protect law-abiding citizens, and the money we spend to put them behind bars is money well spent. However, approximately two-thirds of those admitted to prison in Georgia have been convicted of non-violent offenses and more than half have never before been to prison. The percentage of sentence served for offenders in prison has more than doubled over the past 20 years. Turning even a small percentage of non-violent offenders from tax burdens in prison to tax payers in community based corrections, and reinvestment of a portion of the cost of prison into programs that have proven effective elsewhere, could help both public safety and public budgets.

We might learn that in states where more funding is going towards rehabilitation, millions of dollars — let alone hundreds and possibly thousands of lives — are being saved:

The percentage of Michigan parolees who end up back in the slam within three years has fallen dramatically, and is now far below the national average.

We might start to wonder about things like this:

Crime rates dropped sharply in the past twenty years, according to FBI data, a trend that continues despite the recession and a recent decrease in prison populations.

Instead of a knee-jerk reaction of fear to decreasing prison populations, maybe we’ll even start to look for real answers.

But until the public starts getting truthful and accurate information, things are only going to get worse.

In other words, as long as the Fresno Bee has papers to sell, we’re screwed.

Comments

• February 22, 2012, Denise Chaffee writes: What an eye opener! I'm going to send this to everyone I know. We have, I think, become so complacent these days and don't think to "question" anymore. Thank, Rick, for asking, and finding the answers to, the questions that need to be explored.
• February 27, 2012, Carole writes: Where's the "like" button? I want to keep pressing it until it becomes a "love" button. I am looking forward to the time we concede that the experiment has failed, and we go back to rehabilitation.
• February 27, 2012, Carole writes: Seriously, I don't see a "like" button for this article.
• February 28, 2012, RickH writes: The "Like" button should be showing up in the first column right next to the title above. I'm seeing it. Are you not seeing it? Maybe I should add it to the bottom of the post, instead.

Related posts:

• Irony, Irony Everywhere
• Slashbucklers
• Pick Your Fight

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.

Related posts:

• The Worship of Law Enforcement
• Submitizens II
• One Step Over the Line? Sweet Jesus!

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.

Comments

• March 29, 2012, deep sandhu writes: I agree with rick on this issue. Mimms always talks about how medical cannabis dispensaries are dangerous and robberies can occur. Liquor stores get robbed all the time and no one is seriously calling for their closure. Their is such a ridiculous and ignorant double standard at work when it comes to discussing cannabis.Cannabis cause far less medical and or social problems than alcohol does yet alochol is legal. Cannabis should be legal not only for medical reasons but for recreational reasons as well.
• March 29, 2012, deep sandhu writes: another way cops try to increase the perception of how needed they are is the way they inflate the monetary value of the drugs they seize. They might seize a hundred pounds of cannabis and to compute its worth they will find out what someone paid for a gram and then multiply that amount by how many grams are in a hundred pounds of cannabis. But this is a very dishonest way of computing worth because the person buying the cannabis is getting a huge discount because of quantity. He is not paying anywhere near gram price. The cops do this all the time and they know it is fuzzy math at best but they continue to inflate the numbers.

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.

Related posts:

• Time for Judgment
• Californians’ Priorities In Need Of Correction
• Spin Sells: The Fresno Bee’s Yellow Journalism

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?”

Related posts:

• Time to Fight Back?
• Fresno Superior Court Calls Sheriff Liar
• A Diet of Rehabilitation

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.

Related posts:

• Types of Cases
• 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.