Defense attorneys — and on rare occasions even prosecutors or judges — frequently bemoan the fact that those meant to enforce our laws do not always play fair. We complain about things like police states. We complain about things like the loss of civil liberties, including the right to a fair trial. We complain about the gradual erosion of the United States Constitution and the fact that the so-called “parchment barriers”1 therein contained against the abuses of the government which that document constituted are, these days, less strong even than that.
Most people, however, upon hearing this think, “Ahhh…those damn defense attorneys. Always coddling criminals.” The truth is that we don’t coddle criminals. Granted, we usually — though not always — end up defending criminals. After all, the police don’t get it wrong every time. (But potential jurors should keep in mind, please, that until you’ve heard all the evidence, you don’t know which of my clients are criminals and which are innocent, though accused.)
However, you’ll find that most — and by “most” I mean “nearly all” — criminal defense attorneys dislike the idea of lawlessness and people getting away with committing crimes just as much as anyone else. Contrary to what appears to be popular belief, we don’t want to see anyone raped — child, woman, or man — and we don’t want to see anyone killed, robbed, left the victim of domestic violence, or suffering in any other way from an unlawful act.
At the same time, though, there is something we fear at least as much; maybe more. And that is this. The story is from 2006, but I recently saw it on Jonathan Turley’s Res Ipsa Loquitur blog. I considered whether to use it to make my point, because of its age; I was concerned that some might call it an aberration.
Although the vast majority of people targeted illegally by the police are non-whites, New York’s infamous “stop-and-frisk” policy has resulted in 287,218 white people enjoying the NYPD’s unjustified and humiliating attention. Let’s be clear about something: I am not saying it is of no concern that 2,511,243 non-white people were also stopped. But too often it seems that unless white people suffer the indignities I describe below, it doesn’t matter. Complaints from me and other defense attorneys, as I noted above, are deemed to be (at best) hyperbole.
Ultimately, I’m trying to warn you — yes, you, “dear reader” — that the problem is growing. It’s not just “bad guys.” It’s not just “those people.” As the numbers from New York and the story below indicate, it can happen to you.
The link that caught my attention and caused me to write this post goes to a story about a couple of people who visited Baltimore City for a ballgame.
According to the story, the couple came from out of town and they became lost after leaving the ballpark to go home. Their concerns melted away when they spotted what they thought was a police officer, one “Natalie Preston.” After all, to this couple, both of whose parents are police officers, trusted the police. They knew the police to be “the good guys,” ever ready to fulfill their roles as public servants and to assist citizens.
So you can imagine their shock when, upon pulling up to Natalie Preston to ask directions, they were confronted by a hostile individual who told them they’d just run a stop sign. After receiving the ticket, the Natalie Preston’s response to their request for directions was met with a rebuke:
You found your own way in here, you can find your own way out. 2
Apparently the penalty for running stop signs in Baltimore City is the navigational equivalent of “no soup for you!”
The couple flagged down another person they believed to be an officer to ask for help. But the Natalie Preston would have none of that — she inserted herself between the officer and the couple, telling them that since she had just refused to give them directions, the officer was not going “to step in front of me and tell you directions if I’m not.”
Did I mention what a friendly place Baltimore City is?
Stunned, Joshua Kelly moved them away from Natalie Preston and the officer, driving 40 feet forward. There they parked and called Brook’s father — a police officer (remember?) — to get directions. While they were talking to him, Natalie Preston, who had given them the ticket, and made sure they couldn’t get directions from an officer in Baltimore City, approached, ordered Joshua Kelly (the husband) out of the car, told him to put his hands behind his back, cuffed him and arrested him for “trespassing.”
Apparently, when Natalie Preston says you’re not getting directions, she means from anyone. Anywhere. In the world.
“By this time, I was completely in tears,” Brook said. “I said, ‘Ma’am, you know, we just need your help. We are not trying to cause you any trouble. I’m not leaving him here.’ What she did was walk over to my side of the car and said, ‘Ok, we are taking you downtown, too.’” 3
The couple’s car was left unlocked with windows down in the impound lot. Several items were later discovered to be “missing.”
After eight hours of sleeping on a concrete floor next to a toilet, Joshua Kelly and Llara Brook were released without any charges being filed.
You just gotta love Baltimore City. Or, at least, Natalie Preston.
But my point is actually larger than Natalie Preston, or even Baltimore City.
I started this article talking about the things criminal defense attorneys complain about. And most of the time — and by “most” I mean “almost always” — people don’t want to hear our complaints. After all, as I said, we defend criminals.
And we don’t live in a police state, because in police states, people get stopped all the time for no reason and they have to show papers before being allowed to move on. That sort of thing doesn’t happen here in the United States.
Maybe in Arizona, but not in the United States.
But Arizona doesn’t count, anyway, because it’s just brown people getting stopped.
Okay. Okay. I’m frustrated. I try to explain to people that police states don’t happen overnight. Even in Nazi Germany, things didn’t happen overnight. Oh, and can we get one thing out of the way? I’m not saying the United States is Nazi Germany! Not yet, anyway. To my knowledge, no significant individual, or group, has suggested rounding up the disfavored in America, putting them into concentration camps, and killing them. (Joe Arpaio’s disfavored, a.k.a. “prisoners,” don’t count, because even though he somewhat copies the concentration camp model, the deaths he causes are incidental and accidental.)
As I said in a prior article, “How Police States Are Born,”
First, there is the beginning of a gradual, even imperceptible, erosion of “the rule of law.” After all, if the rule of law remains in place, the police state — which is a major tool for “the rule of man” — cannot come into existence. The erosion of the rule of law prepares the ground for the police state. If I were to stick to the allusion I made above of pre-natalism, I’d say ”the erosion of the rule of law prepares the womb for the birth of a police state.”
Police states don’t happen in the blink of an eye. It starts out with the police targeting those we — as a society — don’t concern ourselves with all that much. The police get used to the unfettered exercise of arbitrary power, though, and the attitudes that allow them to treat those we don’t care about as not deserving of their respect begin a process of institutional accretion. Soon, the gold shield (and gun) isn’t the only thing that separates “them” from “us.” “They” no longer see “us” as any different from the disfavored: we’re all “civilians.”
A variation on “First they came…” seems particularly apropos:
THEY CAME FIRST for the Criminals,
and I didn’t speak up because I wasn’t a Criminal.
THEN THEY CAME for the Low Lifes,
and I didn’t speak up because I wasn’t a Low Life.
THEN THEY CAME for the Hispanics,
and I didn’t speak up because I wasn’t a Hispanic.
THEN THEY CAME for me,
and by that time no one was left to speak up.
It doesn’t happen in the blink of an eye.
But it does happen.
By the way, the reason I referred to Natalie Preston by her name throughout this article is that she — like others who abuse their position — does not deserve the title of “Officer.” The report submitted by Natalie Preston, surprisingly, gives a different version of the story of their encounter.
I know. It’s hard to believe.
But there’s an interesting intersection — a small, weird, piece of agreement, if you will:
The police report of the circumstances indicates Preston told the couple she would arrest them for trespassing — on a public street lined with public housing units. 4
The couple — as I mentioned above — was released from custody without charges. Joshua was later acquitted of running a stop sign.
- James Madison, one of the Founders of the United States, once argued against a “Bill of Rights” because he felt it was a “parchment barrier” against abuses by a government. Sometimes, I think that if he’d won out, we might be better off; Jefferson felt that “[t]he tree of liberty must be refreshed from time to time, with the blood of patriots and tyrants.” Jefferson said this blood was liberty’s “natural manure” and said, “God forbid we should ever be twenty years without such a rebellion.” [↩]
- “Couple Arrested For Asking For Directions” (May 17, 2006) WBAL-TV. [↩]
- “Couple Arrested For Asking For Directions” (May 17, 2006) WBAL-TV. [↩]
- “Police Report Refutes Lost Couple’s Story” (May 17, 2006) WBAL-TV. [↩]