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.

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.

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?