Fresno County Sheriff Mims provides her own example.

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

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

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

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

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

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

Of course, it’s not really that easy.

Because Sheriff Mims is lying.

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

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

Nope.

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

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

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

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

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

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

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

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

That’s how cops think.

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.

Or increasingly, just Bad Cop.

Not All Cops Are Bad

At least a few readers will be up in arms over this post — particularly that last sentence.  To them, let me say this: I make no apologies.  As Scott Greenfield, a New York criminal defense lawyer said earlier today,

For those who are tired of hearing these negative stories about police officers, and assert that mere mortals like us can never understand the pressures of the brotherhood of self-proclaimed heroes, we need to persist nonetheless.  If we don’t keep this issue on the front burner, and if we don’t let cops know that we’re well aware of the fact that they are shameless liars when it suits them, it won’t end.  We just keep pounding away.

And as I’ve repeatedly pointed out in other posts, the fact that there are bad cops and that criminal defense lawyers try to bring that to the attention of the general public, so as to help encourage the bad guys to clean up their acts, does not mean that I think — or that anyone else engaged in this task thinks —all cops are bad.  We don’t think that and they aren’t.  Many — possibly even the majority — of law enforcement officers are actually good guys.  Heck, I even think some of those who do bad things are good guys.  After all, everyone makes mistakes.  And in the heat of the moment, or on the stand when they fear the case may fall apart if they answer me truthfully, I can’t even imagine how great the temptation must be.

But the fact of the matter is that law enforcement ranks have more than their fair share of people who have forgotten the point of the power they wield.  Their job is to protect and to serve the public and to protect and to serve the public in a particular way.

Bias Is An Occupational Hazard

Far too often all these points are forgotten.  Law enforcement officers can easily get caught up — as can we all, if we are not careful — overwhelmed by ennui from seeing so many bad things, so that everyone they encounter becomes, in some ways, a suspect.  And when I say that we are all susceptible of this, I mean it.  Sometimes, when spotting a police officer on the road while driving home, I have to check myself, to remind myself that I did not just spot a threat.  Because a world with no police officers would be an ugly world, indeed.

But don’t think that shoe doesn’t fit as well on an officer’s foot, either.  Let me give you an example.  I’m not going to go into any details here — I will only say that it did not happen within the city of Fresno.  Last night, a colleague of mine and I were working late together researching, discussing and writing motions.  A call came in from someone in an outlying community.  Law enforcement officers were at the home, not for the first time aggressively questioning the individual. The individual had been answering questions, but after becoming uncomfortable with the direction things seemed to be going, decided to call for advice, apparently while the police were taking a look around the property, before continuing.

What to do?

You Have the Right to Remain Silent: Use It!

Visitors to the main page of my main law practice site will have noticed a link about the first and most important thing to remember when being questioned by the police.  Any of them following the link could have viewed a 21-minute video of a police officer explaining why talking to the police is a bad idea.  Once the police focus in on you, there really is nothing you can do to help yourself.  And those aren’t just the words of Rick Horowitz, Fresno criminal defense attorney; those are the words of Officer George Bruch of the Virginia Beach Police Department speaking to a group of law students.

So naturally, my colleague and I endeavored to explain to the individual with whom we spoke that talking to the police was not in that individual’s best interests.

Suddenly, in the background, came a voice: “Who are you talking to?”  After the individual answered, the words, “A lawyer! You don’t want to get a lawyer involved in this.”

For obvious reasons, I’m being vague — not even providing the gender of the individual involved — but the point is that this scenario plays itself out every day in cities all over America, if not the world.  But in America, unless you’ve been classified as an enemy combatant, individuals are entitled to consult with counsel before talking to the authorities.

The reason isn’t “to allow criminals to go free,” either.  Police officers sometimes target the wrong people.  That seems to be the case with the individual discussed above.  And that individual is scared.  Never having been accused of, or convicted of, any significant crime in that individual’s life, the individual doesn’t know what to say, or how to act, to convince the officer he is innocent of the crime law enforcement currently believes the individual has committed.

And there is no way to do that.  The cops involved already believe the individual is guilty.

So what’s this got to do with bad cops, anyway? It will take a minute to explain this and I need to take a little detour, so bear with me.

Cops Aren’t Good Judges of Deception Versus Honesty

A study published in 2005 showed results which “have serious implications for the interrogation of innocent suspects and the judgments of their confessions to police investigators.”

Since confession evidence has the potential to be highly influential in court cases, the ability to distinguish between true and false confessions has become a crucial aspect of a police investigator’s job. This is especially important given recent research by Kassin and Fong (1999) indicating that police investigators who are trained to detect deception cues are actually less accurate, yet more confident, when distinguishing between truthful and deceptive statements than the average person.  (Kristine Fitzgerald, “The ability of police investigators to detect false confessions” (Spring 2006) Canadian Journal of Police and Security Services.)

The study and other articles I read on the subject speculate that one reason police investigators did worse than average people is the development of an investigator response bias.

Research suggests that the process of interrogation is persuasive, if not too persuasive, in part because it is explicitly based upon a presumption of guilt—an assumption that itself can set in motion a number of cognitive and behavioral confirmation biases.  (Christian A. Meissner and Saul M. Kassin, “‘He’s Guilty!’: Investigator Bias in Judgments of Truth and Deception” (2002) Law and Human Behavior, vol. 26, no. 5, p. 469.)

In other words,

Our effect size analysis of the existing literature yielded an investigator bias effect, suggesting that training and prior experience lead to a perceptual bias toward judgments of deceit. (Christian A. Meissner and Saul M. Kassin, “‘He’s Guilty!’: Investigator Bias in Judgments of Truth and Deception” (2002) Law and Human Behavior, vol. 26, no. 5, p. 473.  (Emphasis added.))

Ironically, while police interrogators turn out to be more biased and worse than non-police-interrogators at detecting truth versus deception, they also are more confident in their ability to make accurate judgments. (Fitzgerald, supra.)

Good Cops Honor the Constitution

So again, what does this have to do with bad cops?  The thing is, I have experience with this particular cop.  I’ve talked to him.  At least one of my readers should enjoy hearing that, yes, I have met him.  And this particular cop epitomizes the attitude discussed in the studies mentioned above.

But even if I didn’t know him, even if I hadn’t met him, even if I didn’t already mistrust his ability to be truthful, the studies above point up a justification for not trusting police officers who attempt to keep accused persons away from talking to lawyers.

The United States Constitution recognizes the right to remain silent.  Again, it doesn’t do this because our Founders thought that letting criminals go free was a good thing.  Unlike us, however, they understood the ways in which the power of the government could be used to coerce an individual to “provide” unreliable  information that could be hurtful to him.  They understood that this happens more often when government agents use their power to force someone to talk.

So, with apologies to my readers who think I’m being unfair, a cop who tries to interfere with a conversation an accused person is trying to have an attorney is…uh…a Bad Cop.

It’s important for me and for all of us to not rush to judgment on this case.  There is no indication that any other detective in that unit was involved.

And he’s right.  His other officers were busy elsewhere.

Today, a Fresno Bee headline reads: “Video shows officer hitting man.”  The video shows two police officers holding down a homeless man and beating him in the face.

As Dyer notes,

On the surface, the video is disturbing — one that’s going to have a lot of people concerned. (Jim Guy, “Video shows officer hitting man” (February 11, 2009) Fresno Bee, p. B1, cols. 2-3 (emphasis added).)

However, the Bee story goes on to say,

The chief said that it is too early to say whether it was appropriate for the officer to punch Beaty in the head.  (Jim Guy, “Video shows officer hitting man” (February 11, 2009) Fresno Bee, p. B1, col. 3.)

KSee24 News say Dyer told them we need to wait for the detailed police reports, which will tell us what happened leading up to one officer punching Beaty repeatedly in the face while another officer holds him down.

Dyer has apparently seen the light.  He’s a reformed man.  It’s certainly a change from past cases — including some I have been or am involved in, so I’m not naming names — where Dyer has gone on television stating what he believed these individuals had done as if his beliefs were fact.

One can only hope that Fresno’s “new” police chief can hold on to his nascent faith and that, in fact, he may become something of an evangelist, preaching his new religion amongst the ranks of his own officers.

Because it actually would be nice, for a change, to see more cases tried in court — and less in the press.

The irony is not simply the weapons that are overlooked by searches that range anywhere from perfunctory privacy invasions whose real goal is to show who’s the boss, but that, compared to law enforcement officers, criminal defense attorneys are, on the whole, saints.

So I’m even more irritated when I go into court and the words of police officers are given such great weight that anything I, my client, or witnesses for the defense might say is automatically suspect.  But look at the evidence: police officers on the whole are, in fact, worse than defense attorneys.

On just about any given day, while the presiding judge is requiring brown-shirted deputies to ignore the law and search folks without any particularized belief that they have committed, are committing, or are about to commit any crimes and while those brown-shirts are “only following orders” (one of them actually said that to me), you can pick up the Fresno Bee and find between one and three stories about law enforcement officers breaking the law.

Police Chief Jerry Dyer himself — supposedly now a hardcore Christian — was previously investigated for having an affair with a 16-year-old girl.  As with most other police controversies, nothing ever came of this.  Since then, Dyer has remained an ardent advocate of withholding judgment on police officers who break the law.

And the Fresno Police Department’s most recently exposed criminal enterprise is not unusual.  Police departments in other areas of the country routinely shake down “criminals” to improve the bottom line.  Tenaha, Texas, for example, has a roaming cash checkpoint intended to help their cash-poor city to fund its two-person police department.

In other areas of the country, police routinely take property they want without warrants or right, in order to “investigate,” or cover up, crimes.  After the recent BART shooting in San Francisco, for example, police chased down witnessses and confiscated their cameras.  (The article about this has, for some reason, disappeared, but here’s the Google cached link.)  As the article points out, police have no right to take your property simply because you witnessed a crime.  But as one First Amendment lawyer noted:

You don’t want to get into a situation where you are refusing to comply with law enforcement, especially when that law enforcement officer just shot and killed somebody. No camera is worth losing your life over.

Not all officers committing property crimes have such laudable motives as funding new police stations or protecting the reputation of the police force.  Like other human beings, officers sometimes commit crimes because of addictions. As with other human beings, police officers sometimes commit crimes of opportunity. But do drug dealers deserve to be robbed? Does this justify the officers’ crimes?

Officers who commit property and other crimes don’t just target drug dealers.  Sometimes they hit hardworking construction site owners.  Sometimes it’s just a person who was stupid enough to trust them.  Sometimes they even steal from their own fellow officers!

I want to be clear about what I’m not saying here:  I’m not saying that all police officers are crooks, liars, criminals.  Cases like each of these I’ve linked above should serve to remind us that police officers are human beings.  Human beings not infrequently look out for their own interests.  Not all police officers are crooks, but police officers are ideally situated to abuse the power we, the People, have given them.  It’s no surprise, then, that they frequently do abuse this power.

Meanwhile, I’m hard-pressed to find any information about Fresno-area attorneys committing such crimes.  I know of one local attorney who has been arrested and charged with crimes, unrelated to his job.  I’ve no doubt there may be others that happened before my time.  (My memory of such arrests is of a District Attorney and perhaps some Deputy District Attorneys, but I’ve no doubt criminal defense attorneys in Fresno have also committed crimes before.  After all, the basic premise of my article has to do with humanity committing crimes.)

Isn’t it time we stopped considering officers as super-human and above reproach?  Shouldn’t we understand that they’re subject to the same foibles, fears and fibs as other human beings?  Shouldn’t we stop convicting people of crimes based almost entirely on the say-so of law enforcement officers whose jobs clearly bias them against the witnesses they defame in courtrooms and the people they aim to convict when they testify?

At the very least, shouldn’t we evaluate what they say in the context of all the evidence?  Isn’t that what we do for other human beings when they testify in court?

I’d like to hear what you have to say about this.  Feel free to use the form below to leave your comments to this post.

Today’s Fresno Bee reports that “[a]bout one-third of the Fresno Police Department’s drug squad is suspected of auto theft.”

Says Dyer,

It’s important for me and for all of us to not rush to judgment on this case.  There is no indication that any other detective in that unit was involved.

What exactly does the lack of of any indication that other officers were involved have to do with not rushing to judgment?  Regarding what, or whom, should we not be rushing?  It’s not at all clear.  Maybe Dyer is referring to these individual police officers.  Maybe he means we shouldn’t judge the entire force by the fact that one-third of one of his higher-profile departments has been under investigation by the California Highway Patrol since October (presumably 2008).

I agree that these officers are innocent until — or unless — they are proven guilty.  But this has to mark the first time I’ve seen Jerry Dyer upset about a case being tried in the media prior to getting into a court of law.

Perhaps the saddest part of this story appears in the comments posted by Bee readers.  The only two comments posted so far express anger that this story saw the light of day.  Particularly pathetic is the individual who attacks Jerry Dyer for “running his mouth of all this.”  I’m not really sure how trying to convince people that they should not rush to judgment counts as “running his mouth of all this,” but there it is.

What does this say about Fresno?  Who knows?  But it’s disconcerting to see this level of hypocrisy by Dyer and those commenting on the story.

Isn’t everyone innocent until (unless, Kennedy! I meant unless!) proven guilty?  Or is it only police officers?