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

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

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

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

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

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

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

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

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

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

Allegedly.

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

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

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

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

…

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Related posts:

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

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

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

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

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

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

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

For as Scott notes,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I worship law enforcement.

Comments

• March 6, 2010, Miguel writes: Yes honor those officers! but why worship law enforcement when Jesus said at Mathew 4:10 to worship only Jehovah God!
• March 6, 2010, Ray writes: Well put, Rick. Seems people get carried away with the "adversarial" notion and simplistically take sides, imbalancing things from their good and designed order of complementary opposition. Kind of felt like you had been doing that, too, but I guess I misjudged you. It must be hard to appear fair when you're pushing hard on things to get them back on track. Reaching out to sympathize with and to honor your adversaries is a great way to enlist their help in bringing things back into balance. And a generally respectful thing to do. Caring and nuanced thinking like this makes me proud to be a friend.
• March 7, 2010, Abi Sutherland writes: If I were to suggest a possible thesis... I suspect that American society has become increasingly conflict-averse. It's true that there's a deep strain of anger in the public discourse, but it frightens even the people who are caught up in it. (And well it should, as the incident that kicked this post off illustrates.) The problem is that our society is founded, on a very deep level, on the principle of productive tension. The three arms of the federal government are supposed to produce good governance based on it. And yes, it is the essence of criminal trials. But that kind of tension requires both passion and dispassion. As you say, you have to strongly and energetically oppose the wrong actions, the incorrect arrests, the wrong conclusions, while still believing deeply in law enforcement and its value to society. But it's hard, in an emotional atmosphere, for people not to turn that into "do you like me? do you hate me?" Hard not to personalize it. I don't know what to do about this, not on a societal level. I do know that it frightens me that we aren't doing anything except digging deeper in. .-= Abi Sutherland´s last blog ..Semi-Occluded Light (Web) =-.
• March 7, 2010, capmotion writes: It is to be recalled that the concept of "necessary evil" was a term to describe government - it was deemed to be evil, sometimes a necessary one, sometimes an intolerable one, but always evil. Proactive policing was inimical to the scheme of the Framers, which is why they were evicted in complaint no. 10 of the Declaration, and they never sneaked back to these shores until after the War of Northern Aggression, when Lincoln proved that cries of "war" and "emergency" and "necessity," whether accurate or not, would invite eviscerations of constitutional and founding precepts. Proactive policing is the evil here, and there are unavenged/unpunished violations of people's rights daily, all across the fruited plain, by various levels and versions of the police, and that only occurs because a weak and uneducated public allows it. Jerry Dyer needs to note that "police" are not mentioned in the Constitution. Defense attorneys, judges, and juries are: they are the protectors of the public.
• March 7, 2010, Hank Delcore writes: Rick, I've wondered and worries about this same thing. I often feel hamstrung by the public discourse, which does seem to trap us into either going along with the worshipful attitude to policing or else be branded heartless and disloyal. It IS honorable to walk into dangerous situations every day, and some policemen lose their lives that way. But I'm grateful for the whole system, flaws and all, and the police are just one part. .-= Hank Delcore´s last blog ..Website Usability at Fresno State Library =-.

Related posts:

• Who is the King?: Sowing the Seeds of Disrespect for the Law
• Scaretistics
• You Will Respect Mah Authoritay!

Besides, even as I write this, Mr. Essman is posting more comments on other articles I’ve written, making similar points to his prior comments.  (I get it, Mr. Essman: you like the police and you don’t care much for what I’m saying.  I got that after the second comment.  By the sixth, it became overkill.  Feel free to take a breather.)

Secondarily, I will be correcting attributions of thoughts, beliefs and attitudes to me which I do not hold and clarifying what I do actually think on those issues.

Lastly, I thought doing this would make a “regular comment” too long and since Mr. Essman’s comments follow two different posts and may come to span more at the rate he’s moving, I’ll hopefully just be able to shift everything here, to one place.

Besides, it saves me trying to write a long response and still being left looking for a topic about which to blog today. 

Before I go on, let me state more boldly what I believed to be the point of the various posts to which Mr. Essman takes exception.  My point was that certain statements made by Fresno’s Police Chief Jerry Dyer are self-serving and hypocritical.  I believe that Dyer’s comments and actions which “inspired” (so to speak) my articles suggest one approach to dealing with “ordinary citizens” and another approach to dealing with police officers under similar circumstances.  I hoped that by pointing out the hypocrisy, I would, by extension, cause other people who hold similar views to consider a readjustment for themselves.  That may be a task doomed to failure, but if I gave up without trying just because I thought people would not listen, well, I wouldn’t be much of a defense attorney now, would I?

I have occasionally attempted to make my point through the use of religious allusions and metaphors partly because Jerry Dyer has made a big point in our community of his religious beliefs and practices and partly because I live in what has sometimes been described as “the Bible Belt of California.” I also hearken back to blog articles from long ago on a blog I used to maintain which were part of a category I called “Balaam’s Ass.” Based on my own repetitive reading of both the Christian and Jewish texts known as “scriptures,” I have my own take on how someone claiming to embrace the principles therein should act.  I make no apologies for expressing my opinions on my blog.

Nevertheless, mocking Dyer’s religion is not my intent.  Pointing out the hypocrisy of his comments is my intent.  Suggesting that his view regarding accused police officers should be extended to all accused persons is my intent.  Arguing that based upon his stated religious views and his own personal experiences he should be more inclined to apply the same standards to “ordinary citizens” accused of crimes that he clearly wishes us to apply to police officers accused of crimes is my intent; in other words, he should be less quick to act as if others who have been arrested, who may have been falsely accused, are guilty before there has even been a trial.

Or, as I read once somewhere,

Judge not, that you be not judged.  For with what judgment you judge, you will be judged; and with the measure you use, it will be measured back to you. (Matthew 7:1-2.)

In his initial comment to this blog, Mr. Essman attempted to portray himself as being open-minded, or even-handed, or something along those lines.  Apparently believing it would show that he was definitely not biased in Jerry Dyer’s favor, Mr. Essman went so far as to say that he was “[e]ven to the left of most green [sic] party members.”  (I am not inside Mr. Essman’s head, so I’m not sure I’m right that he meant this to show his lack of bias.  Applying Gricean theories of categorical implicature, it appears to be a logical inference.)

Since then, he’s told me that I’m lying about my own representations regarding why I’ve said certain things; told me that I have some kind of duty to reveal evidence which I’ve never once claimed to have (a bizarre statement even if I had such evidence); ignored comments I’ve made that don’t fit what he wants to say; missed the point I was making; and appeared, more than once, to accuse me of making gratuitous personal attacks upon Jerry Dyer.

Mr. Essman thinks I’m mocking Dyer’s religious faith because I titled the post “Born-Again Defense Evangelist, Police Chief Jerry Dyer.” As I said, mocking his religious faith was not the aim of that title.  Mocking his comments about not rushing to judgment when officers in his department were accused of committing crimes was the aim of that title.  To that end, I invoked the “Born-Again” phrase.  Since Dyer claims to be a Christian and I know that he claims to be a Christian, I cannot know if this title would have occurred to me anyway with certainty.  But I believe I would have still used “Born-Again Defense Evangelist” even if Dyer were not a Christian because of the implications the phrase carries concerning radical changes in one’s thinking.

Now, mind you, it is true that I do not think that much of Dyer’s religion based on the information I have about him.  But the title was intended to be witty and was chosen by me because the phrase fits what I was criticizing: Dyer’s apparent turn-around on how accused persons should be handled by the press and public.

But perhaps Mr. Essman, like other commenters to my various blog posts who have explained how I think, knows more about my thought processes than I do. Mr. Essman states he is not psychic enough to be “inside the mind of Mr. Dyer,” but he has no problem explaining what’s really going on inside my mind even after I deny that he has it right.

Mr. Essman also takes me to task for my “personal attacks” on Dyer.  He’s on a little more solid ground there because it is true that I do not like the Jerry Dyer that I know.  (I have never met Dyer.  The only things I know about Jerry Dyer come from people I know who know him, from seeing him on TV and from reading about him in the Fresno Bee.)  Nevertheless, the statements Mr. Essman takes as “personal attacks” are also not as he portrays them.

For one thing my references to the allegations in his past are intended to highlight that, of all people, Jerry Dyer should be willing to withhold judgment during his press conferences about those who have been accused of crimes.  Of all people, Jerry Dyer should be in a position to know what it feels like to be accused and assumed guilty, because to this day there are people who assume his guilt.

And, yes, I admit that I find it plausible to believe Dyer actually did what he was alleged to have done. Do I know that Dyer is guilty of statutory rape?  Nope.  Not at all.  Never claimed I did.  Never claimed to have any evidence of it.  I only know that — especially because of attitudes like those expressed by Jerry Dyer which I have criticized — police officers get a free pass that ordinary citizens do not get.  So just as Mr. Essman has no problem believing, even after a jury who viewed all the evidence presented to them acquitted him, that O. J. Simpson murdered people, so, too, do I believe it’s possible that Jerry Dyer may have done what he’s alleged to have done, even though he was not convicted of such a crime.

And let’s be clearer about that:  It is my opinion that it is possible that the allegations against Dyer are true; I do not know that they are true.  And I do not know enough to even say if I believe that they are true.  This is why I have never once stated that they are true.

I have primarily, as noted, used the fact that the accusations were made to express my belief that Jerry Dyer should not be so quick to judge others.  This is because I believe that if a person has been falsely accused of something so serious, then they, of all people, should not be quick to judge others.  That would seem to imply that I at least believe it possible that the allegations are not true.  But I don’t know that, either.  And I at least once referenced his “past history” in saying that people can change and should be forgiven for past — oh, what shall we call them? — “sins.” My point was that if Dyer did what he had been accused of doing, I don’t think he should never be forgiven for it.  (But it might mean he should never have been allowed to be the police chief.)

Bottom line on the question of these past allegations of statutory rape against Jerry Dyer: I have no idea if he did or did not do what he is alleged to have done.  I only know that I have used this alleged past of his to make several points about his words and behavior today, regarding people accused of crimes who have not yet been convicted.

Oh, and (again) I also know that whether or not Jerry Dyer was ever convicted — just as Mr. Essman knows that O. J. Simpson not having ever been convicted — does not necessarily tell me that the allegations are false.

(Since I started writing this note earlier today, Mr. Essman has continued to post comments — we’re up to six now — and in his latest he finally got what he originally ignored in my earlier comment to him about someone who likes Dyer, but agreed that given the accusations he was not a good choice for police chief.  To answer Mr. Essman’s latest post, the view, shared by many people I know, is that certain accusations make a person not an ideal candidate for certain positions.  Intelligent people can disagree about this (and do!), but this is one view and I happen to share it.  Mr. Essman is at least honest this time when he notes “I assume…[the judge thought] he was indeed guilty of statutory rape.”  That’s exactly right, Mr. Essman: You assume.  Seems like I’ve heard a saying about that somewhere before.  Hopefully this parenthical clears it up: your assumption is incorrect.)

Another “personal attack” to which Mr. Essman takes exception came in my comment made in a response to another Dyer defender. Mr. Essman notes that my comments are “vague to say the least.”  He particularly is irritated that I reference “stories,” but “do not tell us what the ‘stories’ are much less give us any supporting evidence for these stories.”

The “stories” to which I refer are stories in the Fresno Bee.  Remember, this blog is at FresnoCriminalDefense.com.  The articles I write here are intended by me to be regional articles.  (I maintain another blog where you may also wish to attack me for my opinions: “Probable Cause: The Legal Blog with the Really Low Standard of Review.”)  My comments on this blog assume — particularly when I’m responding to someone who defends a local such as Jerry Dyer — that other people are as familiar with certain facts as I am.  But maybe working in a local library doesn’t necessarily mean one reads…the Fresno Bee.

At any rate, the “stories” of racism to which I refer were those which were published locally and which anyone following police affairs in Fresno could reasonably be expected by me to have read.

To those who have not read those stories, I owe no apology for referencing them without repeating them in their entirety herein.  I am not a newspaper.  I am primarily someone stating my opinion regarding issues of interest (to me, at least) in the local legal community.

I sometimes reference facts, circumstances and happenings that I (apparently mistakenly) think my readers will know about.  I will try to be more careful about doing that in the future.  (In this case, I could have said, “allegations reported in stories in the Fresno Bee.”)  But I don’t intend to write complete self-contained dissertations with a full explanation of all allusions in every blog article I write.  (I have enough difficulty getting them out in a timely fashion as it is!)

Finally, let me address Mr. Essman’s irritation over my allusions to Naziism.  I did, indeed, make these allusions deliberately.

“Nazi Germany” did not spring fully-formed-and-armored from the forehead of Adolph Hitler.  As has been noted in numerous discussions of the history of Nazi Germany, totalitarianism developed slowly and with the “acceptance and acquiescence of good, well[-]meaning and educated people that [sic] allowed it to take hold.”

I see the same thing happening in America today.  Will it go down the same path as did Nazi Germany?  I seriously doubt it will be the same path.  Yet I do believe that the United States of America constituted by our Founders in the famously-named and frequently-ignored or misunderstood “Constitution of the United States” is gone.  Probably irretrievably.

Increasingly, we are transformed from a limited government where individual freedom is pre-eminent to limited individuals where the government is pre-eminent.  But just as I wouldn’t be much of a defense attorney if I just gave up because no one listened to my calls for equal treatment under the Law, so would I not be much of a defense attorney if I did not try to fight this transformation.

I think a lot about the best way to do this.  I haven’t found it.  I vacillate between thinking that reasoned argument devoid of emotion might work and thinking that what is happening is so outrageous that I cannot but rage against it.  I see parallels between the evolution of totalitarianism in pre-Nazi Germany and the evolution of totalitarianism here.

Mr. Essman says,

If they were really as Nazi[-]like as you seem to think you would not have the freedom to pursue the profession you do and would certainly not have the liberty to be writing your blog.

But this is not true.  For one thing, Nazi Germany had lawyers.  During the evolution of Naziism in Germany, they were increasingly limited in what they were able to do, as the government increasingly ignored the rule of law.  Newspapers were still published, although eventually freedom of the press was “suspended.” Again, Nazi Germany did not spring fully-formed and fully-armed from Hitler’s brow. Neither will totalitarianism be able to arise in a democratic republic like the United States overnight.

It begins when, among other things, our increasingly-militarized police forces which are “only following the orders” of judges who no longer recognize constitutional limits on their power gradually strip away more and more of our civil liberties.

And to put the wrap on this article, it becomes ever more dangerous when we hold those police to one standard and “ordinary” citizens to another.

Comments

• May 14, 2009, Goose-stepping Our Way to the Fourth Reich | Probable Cause writes: [...] relating to more regional issues specific to my Fresno criminal defense office — I had the chance to respond to one of my readers who complained, among other things, that I was not being fair to law enforcement officers because I [...]
• May 14, 2009, Eric Essman writes: Mr. Horowitz: Seems like I struck a little to close to home and now you are uncomfortable. For that I apologize. I did not realize you only want people to post who agree with you and praise your keen intellectual insight into the Fresno Police Dept. and some of it's officers.I never claimed to be a left wing radical (although you might have a better chance of claiming that title than I) I simply said on many social issues I am to the left of the green party. In other words I am not a right wing radical nor am I a left wing radical. I am an independent. I am sorry (actually I'm not) that you think it is so outrageous of me to defend the police. The people who defend me from burglars, child molesters, murderers,etc. I assume from your blog that the police deserve nothing more than my scorn and contempt. I cannot toe that line however. The police have helped me in two very specific situations in which an armed intruder was breaking into my home. I will always be thankful for that. I realize of course in your mind (I am only being a little sarcastic here) I should hold the police in contempt for being human and not perfect in every situation. In fact I should be angry that I live in a society in which I should even have to make that call. The police should be the type of police portrayed in the movie "Minority Report" in which they responded to "future crime" and arrested the criminals before they ever comitted their acts. I am sorry (actually I am not) that I cannot work up the anger towards the police that you deem appropriate. I thought you desired some challenge to the ideas you post, perhaps I was mistaken,please let me know. I thought it was interesting when you mentioned in one of your blogs how outrageous it was when a deputy told you he was "just following orders" regarding having to search you as you enter the courthouse. In the real world Mr. Horowitz the vast majority of people do not enjoy the luxury of self employment. As a result they have bosses, supervisors, managers, etc. who tell them what to do. When they are told what to do it is considered an "order". At least it is by those of us who wish to remain employed. As a result the vast majority of the working class "follows orders" when it comes to doing what their supervisors tell them. I realize that in a perfect world we should all be self employed and free to question anyone at anytime. We however do not live in that perfect world. It is amusing how you always sidestep the very important question I put to you in my first post. That being, if you were ever accused of molesting a young girl or your secretary etc. but were never charged or tried for that crime. Would you think it fair of me to write an article about you with the headline "Accused molester-Rick Horowitz"? After all that is what you do with Chief Dyer. He was never charged wih the crime of statutory rape much less tried in a court of law. But he is after all a police officer, so in his case I guess different rules apply. Yes it is true I enjoy writing and am a prolific writer, I am sorry if that offends you. I guess I should spend more of my time watching T.V. like a good American. Do not post a blog if you do not desire reply's. And if you do not expect to be challenged. I will continue to support Chief Dyer until I am shown or given reasons why I should not. And you seem unable to provide those reasons. In fact when coming to work today I saw Chief Dyer (who does not know me) and stopped to shake his hand and give him a verbal thumbs up on the job he is doing. Unlike yourself (you mentioned you have never met Chief Dyer) I actually want to meet the people I am speaking about. I guess we are just different in that regard. I will try to quote a lofty philosopher or a legal case in my next post as that is something that you seem to hold in high esteem. Actually I have a B.A. in religious studies from CSUF so a conversation regarding either theology in general or Christian theology in specfic would be quite enjoyable. I actually do enjoy your blog and read it quite frequently. Sorry I struck a little too close to home and could not (actually would not) just slavishly praise you and your piercing intellect.
• May 14, 2009, RickH writes: Mr. Essman, I'm sure you're aware that my blog is moderated. That means if I didn't want you to post here, you couldn't. I take this kind of language ("you only want people to post who agree with you and praise your keen intellectual insight") to imply that because I criticized you for misrepresenting my positions and for accusing me of things I did not do (like lying), I'm somehow close-minded. My post above I think explains my thinking adequately enough. And you continue to misrepresent what I've said. I'm not going to rehash everything by deconstructing your latest comments. I'll leave it at this: your comment to this post shows me that I picked a good title for it.
• May 14, 2009, Eric Essman writes: Mr. Horowitz: I never said you were a liar. If you can find any post I made that said that please inform me and I will sincerely apologize. What I meant to say is that you promote half truths, second hand stories, etc. to a level that they should not be. Once again you refuse to tackle a tough question. The question being, if you were accused by a woman of sexual molestation and you were never charged or tried, would it be fair (not legal but fair) of me to post a blog about you in which the headline said "accused molester-Rick Horowitz" and then followed that with some type of story or report? That is the tactic that you have used with Chief Dyer in one of your posts. If quoting you word for word is the definition of "misrepresentation" then I plead "guilty as charged".
• May 14, 2009, Eric Essman writes: I hope the public at large can read between the lines when it comes to Mr. Horowitz's latest reply to my reply. He starts out by saying Mr. Essman I'm sure you are aware that my blog is moderated. I had in fact no idea whether his blog was moderated or not and could have cared less. Who is seeming to look into another persons mind now Mr. Horowitz? He is "sure"of what I am aware of. Sounds like he is the one making assumptions and engaging in mind reading to me. Most of us would probably read the sub text of his statement as also implying that I am very "lucky" that he is "allowing" me to respond to attacks on my character. Because he could ban me at any time. Thank you for allowing a humble non-attorney to respond to your attack on me Mr. Horowitz. That is so very noble of you. I have never described myself as a "left wing radical". If Mr. Horowitz can find anywhere that I have defined myself as such I will apologize sincerely. And bye the way, aren't left wing radicals supposed to dislike police? I support the police in general and our police chief in specific. I do not like the way Mr. Horowitz engages in name calling about our police chief and when asked for evidence to support his accusations quickly runs to the position of "I never said he was "guilty" of anything". Well Mr. Horowitz you (as far as I know) are not guilty of anything either. But I have heard "stories". And stories seem to be just as good as facts when engaging in the 21st century art of blogging. At least in Mr. Horowitz's world.
• May 14, 2009, RickH writes: Mr. Essman states,

  I never said you were a liar. If you can find any post [where] I ... said that please inform me and I will sincerely apologize.

  The main place where Mr. Essman indicated I was lying is in the comment to my post titled "Born-Again Defense Evangelist, Police Chief Jerry Dyer," where Mr. Essman states:

  But I disagree with you when you say that you are not mocking his religious faith.The first line on your blog is "Born again-Defense Evangelist, Jerry Dyer.["] Of course this is meant in a sarcastic and mocking way. Anyone can and does discern this when they see the headline. And you certainly have a legal right to mock anyone you desire, but at least own up to it.

  Mr. Essman correctly notes that I stated I was not mocking Jerry Dyer's religious faith. He then denies that this is true and states that I should "at least own up to it." As for the misrepresentations, I believe I've covered some of that in the post above and in previous comments. As for my comments about accusations against Dyer, I believe I've already covered that in the post above as well. As for not knowing the blog is moderated: with the first comment anyone posts here, it informs the poster that the comment is awaiting moderation. Once I have approved a poster, any subsequent comments they make are automatically posted. Mr. Essman, I'm beginning to wonder if your "job" here is to keep me distracted from other work. Please feel free to continue posting to your heart's content. Please do not be offended if I stop responding.
• May 14, 2009, Eric Essman writes: Mr. Horowitz: Disagreeing with you is not synonomous with calling you a liar. You presumbably are an intelligent man and should know the difference. I do think (and most people who read your blog would agree) that you are mocking the police chief when you phrase a headline in the way you did. Using the term Born again defense evangelist is indeed mocking his faith and I think most people would agree with me. Notice how Mr. Horowitz will still (this being the third time I have asked him) not tackle my most important question to him. If he was accused of sexual molestation but never charged or tried would it be fair of me to write an article about him in which the headline was "accused molester-Rick Horowitz" and then proceed with the article? Mr. Horowitz only wants soft balls thrown to him. Hardball being a game for adults.
• May 14, 2009, Eric Essman writes: Mr.Horowitz; Sorry to offend you but you do not have the power to offend me. I responded as many times as I did because you devoted an entire page to attacking a man (that being myself) you have never met and know nothing about. At least you are being true to form in doing that. Notice how Mr. Horowitz will still not respond to the one hardball question I have asked him not once or twice but three times.
• May 14, 2009, Eric Essman writes: Mr. Horowitz; I still have not received a response to the most important question I have asked you. I probably never will because the answer would embarass you. If you were at one time in your life accused of sexual molestation by a female co-worker, secretary,etc. And you were never formally charged or tried, would it be fair to blog about you with the opening sentence being "Accused molester Rick Horowitz"? Because this is the exact thing you have done to our Police Chief Jerry Dyer and I think it is very wrong and underhanded and cowardly. When you wrote that article about Chief Dyer that opened with "accused statutory rapist turned Police Chief Jerry Dyer" I could not believe it at first. I thought an educated man such as yourself should and would know better, but I was mistaken. I just hope that you are never accused of anything you are innocent of and someone (like yourself)decides to use that accusation as a preface to an article or a blog. It was very unfair what you did. I am an evenhanded and politically independent person. But then again you would not know that because you do not actually like to meet the people you write about. You are the type of guy who likes to hide behind his terminal and his J.D. degree and tell his second hand stories and half truths and pass them off as legal opinion.
• May 14, 2009, Bob writes: "Five years ago, Dyer had the police chief's job so wired he was the lone candidate for the job -- even though his early career included two Internal Affairs investigations into allegations he had illegal sex with a 16-year-old girl. Dyer wasn't charged, and he quickly rose through the department after embracing Christianity. Years later, at a news conference following his appointment as police chief, Dyer said he would neither confirm nor deny that he had sex with the girl." Source: http://www.redorbit.com/news/technology/415259/the_fresno_bee_calif_bill_mcewen_column_should_dyer_be/ Seems like ducking hardball questions is contagious. Mr. Essman, my answer is no. I would not want to be addressed as 'accused molester' but I would also do everything in my power to clear my name and regain my reputation. Chief Dyer's silence is not damning evidence, but neither is it the act that many would consider 'rational' if we were in that spot. Further to the point of these blog articles, I believe that everyone needs to be treated equally and dispassionately under the law, and that applies if you are an accused gang member or an accused police officer. We should not 'cut some slack' for the people who protect us anymore than we should convict a person by their appearance, affiliations, or previous criminal record. Yes, that may be introduced in a body of evidence later but we cannot make any judgment on any person until they have their day in court. The law is impartial, the law is equal, the law is blind. Asking for understanding for an accused police officer undermines the laws he or she was sworn to protect and turns our justice system into a series of relationships that either favor you or hurt you. Yes, I am a pragmatist and I know the world doesn't work that way, but shouldn't we at least try?
• May 14, 2009, Joni Mueller writes: Beats hiding out in someone else's comment box, don't you think? And since when is a police chief pristine? I gave up long ago believing that law enforcement folks were any different than any of the criminals they are paid to apprehend. They are, after all, only human. And that might be Mr. Dyer's only crime right now, being human. But being in the public eye is much like being a celebrity. He's got a duty to act just a little more decently than those criminals out there, no? And we have every right to speak our opinions about him (or anyone else in a position of authority) as you do to zealously defend them. And I defend to the death your right to do so. My city's (Houston, Texas) district attorney was forced to resign recently for not so egregious an error, but one that nonetheless everyone felt clouded his judgment to the extent it made him completely ineffective. http://en.wikipedia.org/wiki/Chuck_Rosenthal_(district_attorney) Joni Mueller´s last blog post..I Know.
• May 14, 2009, Eric Essman writes: Mr. Horowitz: We are finally in agreement. We should try to make the world a better place where all people are treated equally. In that contention we are in complete agreemet. I actually know you and have given service to you before. You do not know me by name but would probably recognize me immediately if I introduced myself. You are correct that silence is not damning and we must remember that. I actually do not belong to either the left wing or the right wing side of the political spectrum on most issues. And as I said before I am not one of those people who think "the police are always right" no matter what they do or say. But I think Chief Dyer is not the person you make him out to be. Only the lady and the Chief know what happened. Just because the Chief did not confirm or deny the allegations does not mean he is guilty. Perhaps (and you would know this better than I) that is the advice his attorney gave him. I agree with you that we all should all be treated equally both in and outside the courtroom. And I think (although as stated,I am not psychic) that Chief Dyer would agree with us on that. I am glad that you do admit that you would not want to be treated in the manner that you have treated Chief Dyer. I respect your honesty in saying that. But I do think you owe an apology to both the Chief and myself. You mis-characterized both of us. I think your view of the police is very one sided and that to some degree is natural, as you are usually fighting against their testimony and usually fighting to keep out of prison someone that the police want to send to prison. So an adversarial relationship is natural and to be expected in the type of legal system we have. But please please do not let your position blind you to all of the good that police officers do. I realize that sometimes you see them at their worst but try on occasion to see them in a different light. Perhaps I am somewhat prejudiced , but I have met many police officers and I believe them to be outstanding individuals with a very hard job. And usually a very thankless job. Try talking to Chief Dyer. He is very approachable. As I said (wrote) earlier I saw him coming from his office today and shook his hand and spoke to him for a few moments. He is not guarded at all and seems willing to talk to anyone about anything. Try talking to the man, you never know, you might change your opinion of him. Wishing you all the best (I mean that sincerely) Eric Paul Essman. P.S. I might make myself known to you the next time you come in to the place that I work at. Please don't take a swing at me (kidding). e.e.
• May 14, 2009, Eric Essman writes: Mr. Horowitz: And I agree with you also about "not cutting slack" to someone just because they are a police officer. Police officers should be held to a higher standard of behavior than the general public because they do carry a gun and have the right to detain and arrest someone. But I believe that most Police offcers would agree with us that they shouldn't be cut any slack because of their chosen profession. In fact I believe most Police officers would agree that they should be held to a higher standard of behavior than the general public. All the best, eric essman.
• May 14, 2009, Bob writes: Mr. Essman, Are you replying to Mr. Horowitz, or to me? Bob
• May 14, 2009, Eric Essman writes: Hi Bob: My apology. I did not look before I leaped and thought it was Mr. Horowitz responding to me. Please accept my apology. I wish Mr. Horowitz would come forth and answer the question that you had the courage to. We are in agreement on most issues Bob. I hope you have a great evening. Eric Essman.
• May 14, 2009, Bob writes: Eric, I think you have to take something into consideration re: Mr. Horowitz's opinion. Even though you and I agree, it IS public record that the Chief was investigated and it is fully acceptable to refer to him as the 'accused' in this particular situation. Public record influences public opinion. Whether or not you agree, calling the Chief the 'accused' is appropriate and honest. He was, in fact, accused. He was not, in fact, convicted. The truth stands, regardless of what aspersions may be cast by that truth. The truth does not always set you free, especially when that truth appears to be incomplete, i.e. there are no further facts and no further denials by said accused. Again I reiterate that most people would feel far more compelled to defend themselves from accusation by any means possible. If the Chief kept silent because of advice from counsel, I would have sought different counsel. In fact, I would have given up the position before being told to keep quiet. But that is me. The 'truth' as I see it is clouded at best. If the position meant more than reputation, especially a reputation his children would have to defend at some point, then I wonder where the man's priorities are. In either case, his passive defense earns him the title of 'accused'. Mr. Horowitz, or anyone else who cares to voice their opinion on this, is absolutely correct in using that term. Whether or not Mr. Horowitz would accept the title of 'accused' is moot. Mr. Horowitz's reaction and defense would be far more compelling, far more emphatic that Chief Dyer's (you can tell that from his writing and his chosen profession). There is a saying 'Power perceived is power achieved'. I would like to bend that to read 'Accusation perceived and timidly defended is accusation achieved'. All Christians have a past but public opinion does not forgive as quickly or as easily as God. You cannot condemn a man for having a differing opinion from yours, especially when the office the 'accused' holds is supposed to be high from suspicion or accusation in the first place.
• May 14, 2009, Eric Essman writes: Hi Bob: Whether Mr. Horowitz would accept or not accept the title of "accused molester" is very much the point. I beg to differ with you on that. If Mr. Horowitz feels it is proper to label Chief Dyer in that way he should not mind being labeled in a similar fashion if similar events were to unfold. I appreciate you wanting to speak for him but I wish he would show the courage to speak for himself on this point. It is sad that he does not. I do not know that he would not remain silent if he were given the title "accused molester". He has remained silent so far when it comes to answering the most important question that I have asked of him. I have asked the question of him four times and he will not reply. I guess not everyone is as direct or as courageous as you and I. Some people like to hide and remain silent when asked a direct question and some people like to openly express their opinions. I guess we are in the later category and Mr. Horowitz is in the former. All the best, Eric Essman.
• May 14, 2009, Bob writes: Remaining silent is neither a crime, or a sin. Your request of a direct answer to a hypothetical question is quizzical to me. He voiced his opinion based on public record, your hypothetical is moot since it is not. Whether or not Mr. Horowitz calling Chief Dyer the 'accused' is also moot. It is well within the cultural, and biblical, definition of truth. Whether or not you consider him 'rude' or 'out-of-bounds' by calling the Chief the 'accused' is also moot. It's his blog and he can say what he wants (within reason). Courtesy, in case you missed it, is optional on the internet. Your sense of rules may be offended but he is still well within his. I'm not sure there is much point to press this since he has spoken his mind without violating the truth.
• May 14, 2009, RickH writes: Mr. Essman, Sorry I was unable to drop everything and respond to your comments immediately. Not all of us work for the County. I had work that had to be done. As a criminal defense attorney, I don't have all the resources of the State. Yet since my job is to make the State prove its case against accused persons...well, I have to put in a little more time actually working. (See The Crucible of Adversarial Testing.) Regardless, though, I thank you for avoiding personal attacks on my courageousness while I was incommunicado. Oh, wait.... You may live on my blog, but I have a law office to run, cases to handle, phone calls to make, other attorneys and investigators to confer with, clients to update, courts and jails to visit, motions to write and files to maintain — among other things that come from actually running a business. Blogging comes primarily when I can get to it, which is why I don't post as frequently as some bloggers. Your comment about not having accused me of lying is disingenuous. The phrase "at least own up to it" implies that I am not owning up to what I am doing. Since I said I wasn't doing it, but I'm not only (according to you) doing it AND not owning up to the fact that I'm doing it, then I must be lying. Or, who knows, maybe you just meant I was delusional, which, of course, is equally flattering. As for your question, which I felt I did not need an answer, please feel free to get a blog of your own and then begin posting whatever you feel you are justified in posting about me, just as I post what I feel I am justified in posting about others. I'm not quite the public figure that Jerry Dyer is, but feel free to blast away. Just be as truthful about what you say as I have been and you'll be fine. I fully explained my thoughts on the truth or falsity and the irrelevance of the truth or falsity of the accusation against Dyer above. By the way, I'm not Bob. That's why I sign my posts with "RickH." You keep responding to Bob as if he were me. I really think that if you'd read things a little more carefully, you'd not only know who was saying what, but you'd realize that your criticisms of what I've said are misguided. I've taken great pains — in fact, devoted an entire post — to explain my points after you took exception to a couple posts. Yep, an entire post to explain myself; not to attack you, although I have sometimes mixed criticism of your comments into my explanations of my own position. And I think that makes me more than generous regarding your attacks on me. (After all, it's my blog and yet I allow you to continue your rude and misguided criticisms of me without censoring so much as a word.) Yet I've noticed that you sometimes miss not just my points, but my actual words. Re-read the posts and you'll see what I mean; you've not only confused me with Bob, but you thought someone who didn't like Dyer said something to me, even though I pointed out that the person actually liked Dyer. In a subsequent comment, you realized this. Again, because you mistook Bob's comments for comments of mine, you've mistakenly praised me for stating that I would not want to be treated as I have treated Dyer. But let's look again at how I treated Dyer. I stated as unequivocally as I could that I don't have enough information to decide myself whether I believe he committed a crime (of statutory rape) or not. I've tried repeatedly to explain to you that my point in discussing his past at all was because I believe that someone who has been accused of something falsely should be less quick to go in front of TV cameras when people who are not police officers are arrested for crimes and tell the world that these people are dirty miserable guilty criminals, before any trial. Trials should occur in courtrooms; not on TV. So, again, I do not know if Dyer actually committed the crime of statutory rape. Never said that I did. Not once. I'm kinda sorta tempted to think that whether or not he did could be a "most important question." Maybe you could hound him about it until we all get an answer? Finally, let me reiterate a couple of things I've actually stated on this blog and, also, on my other blog. First, most police officers are good people. They probably took their jobs because they wanted to make the world a better place, just as I opted to do criminal defense after I went to law school intending to do "technology law" because I wanted to make the world a better place. Both I and the federal prosecutor (now a judge) who was my criminal law professor thought I could do that by becoming a criminal defense attorney. But not all police officers are good people. More police officers than you're willing to admit let the power they wield go to their heads. (Just check out the Injustice Everywhere website where, among other things, you'll learn that California leads the pack on police misconduct.) Secondly, remember that I'm a criminal defense attorney. Besides yourself, there are plenty of other cheerleaders for the police department. My job is, in a sense, to play the "devil's advocate" who will help us see where things should and (hopefully) can be improved. I make every attempt to be fair in my assessments of law enforcement and, far from the hatred and contempt you appear to think I have for them, I actually very much like some of the law enforcement officers with whom I interact. I'm not a black-and-white, on-or-off, you're-either-good-or-bad guy; that's why I didn't become a Deputy District Attorney. ;) This blog wasn't created for the purpose of playing cheerleader to the police. And, again, more often than you're willing to admit, the police do not deserve cheerleaders. Even if those cheerleaders, like you, are of legal age. ;)
• May 15, 2009, Jackie Styles writes: Damn. Y'all are out of control. As a Criminal Defense Attorney I too know what Dyer's clan is up to, good and bad. Dyer's past regarding an alleged sexual encounter is irrelevant. Police misconduct is the real issue. And just like in sports...it starts at the top.
• May 15, 2009, Erik writes: "But I believe that most Police offcers would agree with us that they shouldn’t be cut any slack because of their chosen profession. In fact I believe most Police officers would agree that they should be held to a higher standard of behavior than the general public. " This is incorrect. There is "professional courtesy" or "I got your back, man" attitudes among police and it extends to Fire personnel such that if, for instance someone is speeding and gets pulled over, they show their credentials and appologies are passed around before they depart. This is minor corruption and it goes up from there. They CERTAINLY are not expecting to be held to a higher standard, thats rediculous.
• May 15, 2009, Jim writes: Well Rick, no one has ever accused you of being verbose or opinionated. We do need the police. We all desire and deserve an honest police force. I personally believe that police officers need psychological over sight, because dealing with the criminal element can tarnish your views and corrupt your moral compass. I defend many police officers as part of my practice. They really are regular guys trying to do a tough job. They are rarely perfect, but they usually became police officers to help people, not to harass minorities or carry guns. The good cop, with a wife and kids, a mortgage, who coaches soccer and helps his wheelchair bound neighbor with the yard work, doesn’t make the headlines. I am very supportive of people like our buddy Dan Martin, who keeps things honest and helps filter out the occasional bad eggs. But I cannot paint with the “brush of generalities” or I would have to give all officers an automatic thumbs up, as all of the officers I have worked with have been forced to prove their honesty and good will in the course of my representation, and have done so with flying colors.
• May 15, 2009, Eric Essman writes: Mr. Horowtiz: I agree you are not Bob. But how delightful it would be if you learn a few lessons from Bob. I have never attacked you personally, that would require effort that you do not merit. I have attacked your ideas. i like (actually don't) the way you put down civil servants also. With your comment about "sorry I don't work for the county". Not all of us have the luxury of being self employed and or self important. I do not live on your blog Mr. Horowitz. I could not handle the drop in the standard of living that would entail. However, it seems that you devote an inordinate amount of time to examining and trying to find fault with every commen I make. I know in your world it is a crime to view the police with anything but mistrust , so in your view I am probably a criminal. Notice how Mr. Horowitz has still not answered the one hardball question I have asked him time and time again. I actually enjoy interacting with Mr. Horowtiz and I think he is a decent person he just has a very narrow view of police officers and police work. All the best, Eric Essman.
• May 15, 2009, Eric Essman writes: Mr. Horowitz: Mr. Horowitz devotes an entire blog to attacking me and my defense of the Fresno Police Dept. and now he will "allow" me to respond. How big of you Mr. Horowitz. When he has no answer to my arguments he starts attacking what I do for a living. Yes, I am a civil servant. I was not aware that was a crime or made me ineligible to post on your blog. His comment about "not all of us work for the county" I had "work" that needed to be done. The insinuation being of course that I do not "work" because I am a lowly civil servant. He is a "defense attorney" and must be rendered proper adoration. Mr. Horowitz cannot stand it that someone with only an undergraduate degree can poke holes in his arguments and contentions. In his mind, I should be worshipping at his feet for sharing the golden nuggets of wisdom that he so graciously allows me to read. Who am I to disagree with someone who holds a J.D. degree and practices law? He devotes an entire blog to attacking a person he has never met (that being myself) and yet if I try to defend myself I am using up too much of his time. He even suggests I start my own blog. Feeling a little threatened Mr. Horowitz? I hope not. Notice how Mr. Horowitz will never answer the one hardball question I have asked him six times now. He hasn't answered it because the answer would be embarassing for him and would undermine most if not all of his posts about Chief Dyer. I do not think at the moment I want to start my own blog Mr. Horowitz. You devoted an entire blog to attacking me and I have the right to respond to those attacks. Sorry I did not quote any legal cases or lofty philosophers, I tend to rely on my own common sense and lessons I have learned in the real world. Come back to Earth Mr. Horowitz, you are a decent guy and the Earth could use a decent man.
• May 15, 2009, Eric Essman writes: Mr. Horowitz: Why are you getting so defensive. Rick almost yells in his last post "this is MY BlOG" and I am allowing you to post. The childlike nature of his anger is somewhat amusing. Again , after devoting an entire blog to attacking me he is being so generous in "allowing" me to post. What an open minded man you are to "allow" someone to respond to criticisms about their character and opinions.I stand in awe of you Mr. Horowitz. Thank you for even acknowledging someone who is engaged in the dual sins of being a member of the working class and disagreeing with you. You criticize Chief Dyer many many times and then admit you have never actually met him. Your courage is beyond description Mr. Horowitz. But I forgot you also devoted an entire blog towards criticizing me and mischaracterized almost every aspect of my posts. And you have never met me either. Do you think in the future you might actually want to meet someone that you write about? Probably not. After all you have "work" to do. And showing courage probably is not "work related" All the best, Eric Essman.
• May 15, 2009, RickH writes: Jim, nothing to disagree with there. Mr. Essman, you actually do not have a right to post on this blog, regardless of what you think. I own it. Your posts are here because I don't delete them. In that respect, you are absolutely correct that I "allow" you to post. I think that fact alone shows that I don't have a problem with you disagreeing with me. So you disagree with me about the way I've used Dyer's history. Do you seriously believe I don't understand that after nearly a dozen posts in which you repeat the same things each time? Are you trying to communicate to me that until I change my mind, you're going to keep posting about it? I post my thoughts on this blog. People sometimes agree and they sometimes disagree. I sometimes respond and I sometimes don't respond. I started my blog so I could do that sort of thing, not because I thought you needed a forum to complain about my attitudes, beliefs, courage, childishness, open-mindedness, sense of humor, thought processes, methods of making my points or any other character traits of mine you may wish to criticize. (Not that you would ever engage in such personal attacks on me, of course.) I'm sorry you don't like the way I do things. But, no, I'm not going to only write about people I've met, nor am I only going to write about situations in which I have direct involvement. It would be an awfully sparse and boring blog if that's all I did. As for "attacking" people, I'm pretty sure readers of the blog can decide for themselves who is calling whom "defensive," who is accusing whom of "childlike" behaviors, who is saying who is not "owning up" to what they intend by the words they use, etc. Post away, Mr. Essman. I've said what I need to say. You disagree with me. I think I can live with that.
• May 15, 2009, Eric Essman writes: Mr. Horowitz; Nothing in your latest response surprises me. Of course you are not going to meet people before you attack their character or opinions. That would require courage. That is something that you would rather not deal with. It involves the real world and might take a person out of their ivory tower for a few hours.I have no problem living with the fact that you disagree with me. In fact I take it as a compliment. My my you are so defensive for such an accomplished intellectual. I am sure your intellect has soared to heights that working class people like myself cannot even begin to imagine. I am not a cheerleader for the police. I will post as long as you continue to attack me and mischaracterize me. You devoted an entire blog to attacking me so now you will deal with my replies. I have the moral if not legal right to reply in any situation in which someone might call into question my integrity and honor. Thank you O' great and mighty defense attorney Horowitz for allowing a humble and lowly civil servant the chance to respond. For those of you listening in, In my opinion this is the type of guy who despises working class people even though they probably supply him with most of his clients. Just read his posts about being sorry he does not work for the county, he has "real work". Mr. Horowitz is not really (in my opinion) a big freedom of speech advocate as he constantly makes veiled threats to eradicate my posts anytime he wants. I guess freedom of speech is reserved for those who hold graduate degree's right Mr. Horowitz. Notice how Mr. Horowitz will never answer the hardball question that I have asked him seven times now. I can imagine Mr. Horowitz stomping his feet up and down on the floor because a lowly and stupid civil servant had the nerve to disagree with him. But that is okay, I am use to temper tantrums. I have a young son. I truly wish you all the best Mr. Horowitz. And I hope you have a restful and relaxing weekend. All the best, Eric Essman.
• May 15, 2009, Eric Essman writes: Mr. Horowitz: You told me to "post away" so please allow me to take you up on your offer. I usually do support the police although no one who actually knows me would characterize me as a "cheerleader". I did not know that supporting the people who keep us safe at night was immoral or illegal. Mr. Horowitz has educated me so much in that regard. Thank you Mr. Horowitz. Notice how Mr. Horowtiz will still not tackle the one hardball question I have asked him seven times now. But hardball is a game for adults while younger folks tend to prefer softball.
• May 15, 2009, Eric Essman writes: Mr. Horowitz: I am sorry (actually not) that I do not share your view of some police officers having Nazi like characteristics. Your comment about "brown shirted" deputy sherrif's who "just follow orders" being very telling about Mr. Horowitz's feelings toward our police force. It is kind of amusing how in Mr. Horowitz's last post he starts to backpedal on this idea. A poster named Jim mentions that most police officers are good guys with a hard job to do. Mr. Horowitz responds "Jim, nothing to disagree with there". It is amusing because Jim is just paraphrasing every point I have been making for many posts. Yet Mr. Horowitz says "nothing to disagree with there" towards Jim. But when I express the same sentiments as Jim I am horribly misinformed. Presumbably Jim is a friend or associate. Can anyone say "double standard"?
• May 15, 2009, Mark Bellamy JD. writes: Mr, Horowitz, I am inclined to agree with the majority of the things that you have written, are writing. I was raised in foster care and lived in many states so my opinion comes from years of constant diversity. Most of my foster care parents were police officers and one attorney for the state of Florida in 1960. I was pretty much ignored as " children were "to be seen and not heard" and the stuff these police talked about doing is heinous. As a result I believe the assessment percentage wise is much higher. I might add that many of my friends and co-workers will go out of there way to by-pass Fresno altogether. I believe you have a valid point and it is spot on.
• May 16, 2009, Eric Essman writes: Thanks Jackie: Thanks for agreeing with me that Chief Dyer's past alleged conduct is irrelevant. Because the conduct is just that, alleged. Again, he was never charged or tried for the offense that Mr. Horowitz likes to mention frequently. I guess the idea of innocent until proven guilty applies toward eyerone except for the Police.
• May 31, 2009, The Very Definition of a Police State | Fresno Criminal Defense writes: [...] That is particularly true when it comes to police states.  For one thing, as I have written elsewhere, police states do not spring upon the world fully formed.  They evolve from other forms of [...]

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Unless you’re a police officer.

Last week, taking another whack at the exhausted and near-death Fourth Amendment, the United States Supreme Court indicated that if the police arrest and search someone because of “mistakes [which] are the results of negligence,” it’s okay.  No harm; no foul.  After all, the victim of the police department’s negligence was a bad guy.  The police were doing something the Constitution forbids them to do, but it’s for a good cause.

It is rather ironic that the ascendancy of right-wing Christianity with its hardcore “law and order” crowd in the United States has resulted in the increasing tendency of the government to ignore the laws of our land, particularly when we think following the law will result in a bad guy escaping punishment.  As far back as Genesis, no less an authority than the Bible laid down the principle that it was better to let guilty men escape punishment than to act in a way that could harm the innocent.

And Abraham drew near and said, Wilt thou also destroy the righteous with the wicked?… That be far from thee to do after this manner, to slay the righteous with the wicked: and that the righteous should be as the wicked, that be far from thee: Shall not the Judge of all the earth do right? And the Lord said, If I find in Sodom fifty righteous within the city, then I will spare all the place for their sakes…

And he said, Oh let not the Lord be angry, and I will speak yet but this once: Peradventure ten shall be found there. And he said, I will not destroy it for ten’s sake. (Genesis 18:23-32.)

Maimonides, a 12th Century Jewish philosopher, said,

it is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent one to death. (Moses Maimonides, The Commandments, Neg. Comm. 290, at 269-271 (Charles B. Chavel trans., 1967).

This principle subsequently became known in legal circles as “Blackstone’s Ratio,” after Sir William Blackstone, an English jurist (lawyer) and professor, published the principle in his famous “Blackstone’s Commentaries.”

Blackstone, of course, had significant impact on the Founders of the United States. So it’s no surprise that even Benjamin Franklin stated,

it is better [one hundred] guilty Persons should escape than that one innocent Person should suffer. (9 Benjamin Franklin, Works 293 (1970), Letter from Benjamin Franklin to Benjamin Vaughan (Mar. 14, 1785).)

But modern Americans know better than our nation’s Founders…than the explicators of the foundations of our religions…than the G-d they supposedly worship. Today, our fear that someone might get away…that a single death could be averted…that accused people have too many rights and “victims” too few, has lead us to overrule the wisdom of the ages.  “Judge not, that ye be not judged,” has become, “Judge.  Quickly.  Before they get away.”  And harshly.

Prosecutors limit discovery, refusing to divulge evidence until trial, if at all (even though California law says “thirty days prior to trial”), for fear the defense will investigate and find a way to show why innocent acts are innocent because their clients are innocent.  Trial by ambush is the new approach.  It matters not that this makes prosecutors — representatives of The People — lawbreakers.  The government is above the law.

But believe it or not, there really is a problem with this philosophy.  The root of it is “might makes right.”  In fact, not only is that the root of this philosophy, it is its totality.  Nothing else matters, except who is big enough to make everyone else “do as I say, and not as I do.”

Thomas Paine, one of the driving forces behind the Revolutionary War which produced the United States, said:

In America THE LAW IS KING. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.  (Thomas Paine, Common Sense (Larkin, ed. 2004) p. 75, capitalization and italics in the original Larkin edition [Paine's original publication date is 1776].)

But once the government “of laws, and not of men” (John Adams, “Novanglus Papers,” no. 7.—The Works of John Adams, (ed. Charles Francis Adams 1851) vol. 4, p. 106) has lost respect for the law, why should anyone else respect it?

Comments

• February 1, 2009, Jo Nathan writes: I've read a little about the Herring case, and the exclusionary rule. My take on it is that SCOTUS has blinders on, focusing on deterring police violations of fourth amendment rights. Why should not the exclusionary rule be invoked to simply protect fourth amendment rights, period? That is, whether it is the police, the clerk, or the judge; shouldn't there be a deterrent regardless of the proximate cause of the invalid search and/or seizure? Am I missing something?
• February 1, 2009, RickH writes: I'm with you on that. It blows my mind that the government thinks by carving itself up into little chunks and letting non-law-enforcement chunks violate the Constitution, they're honoring the Constitution. The Constitution is a limitation on government. Period. Doesn't matter which part of the government is doing the violating, the exclusionary rule should apply. But even better are the people, including courts, that seem to argue that "well, yeah, the Constitution says government can't do this, but doesn't say that there should be any penalty, so we shouldn't impose one in this case because we don't like the result that would flow from that."
• February 11, 2009, Jo Nathan writes: RickH - you are so right: "well, yeah, the Constitution says government can’t do this, but doesn’t say that there should be any penalty, so we shouldn’t impose one in this case because we don’t like the result that would flow from that.” But that is why the exclusionary rule was created in Weeks; if there is no penalty, there is no Fourth Amendment. And the way it is now, penalties via exclusion only crop up in the case of criminal prosecutions. Who can you call when your Fourth Amendment rights are being violated and you're not charged? The Police? I think not; they spend most of their time figuring out ways to sidestep the Fourth. Bivens actions are rarely possible when illegal surveillance is performed, as one can't get evidence. The idea that civil suits provide remedies is a SCOTUS figment.

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