Probable Cause

During a momentary escape from a brief I’m trying to complete before the end of today, I ran across an article on the Pennsylvania Litigation Blog about a sheriff who has become a hero to some because he won’t conduct auctions on foreclosed homes as the law requires.

The article itself was basically just a reprint of one that was supposed to appear in the Wall Street Journal on June 6, 2008.  It was a user comment that struck me more and inspired this post.

I don’t normally write about non-criminal law issues, but since this involved a sheriff picking and choosing what duties to perform, it seemed an acceptable fit here.

The commenter praised the sheriff because even though what the sheriff did was “against the law,” it was the morally right thing to do.  At least, it was the morally right thing to do in that commenter’s opinion.

I disagree.  At least I think I disagree.  (Keep reading!)

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When I was young, I remember a version of the Bible which was titled “Good News for Modern Man.”  Given that this post involves the prosecution and subsequent acquittal of a police officer for excessive force in Fresno — arguably in the center of the Bible “Belt” of California — and given Supreme Court “Justice” Scalia’s not too distant comments about the “modern” and “professional” police force, it seems appropriate to play off that for this post’s title. 

First, let me be clear about something, because every time I write about police abusing their authority, it seems the police supporters come crawling out of the woodwork.  In Fresno, as with much of the Central San Joaquin Valley, the police can do no wrong, even when they do.  Having said that, this post is not my own personal pronouncement that the jury screwed up and let a guilty man go free.  I actually don’t know if that’s true. 

I am, however, going to talk about what the newspaper has reported, throw in a few comments from things I’ve heard from attorneys who are more familiar with the facts, and express my opinion.

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I’m “on the road” a lot (albeit usually within the three counties in which I primarily practice criminal defense: Fresno, Tulare and Kings Counties) which makes it hard to keep up the blog sometimes. 

I have installed an interesting application to help - BlogJet. It’s a Windows client for my blog which supposedly allows me to compose posts offline. If it works as advertised, I can write more entries even when there is no Internet connection and upload the posts when I’m able to connect. 

Maybe now I won’t have to go so long between posts!

The website for BlogJet is here: http://blogjet.com

“Computers are incredibly fast, accurate and stupid; humans are incredibly slow, inaccurate and brilliant; together they are powerful beyond imagination.” — Albert Einstein

In 1998, Wayne Conley was arrested and trial began after he led a gang rape against an unconscious woman — a fellow soldier — while the others waited to take their turn.  After finishing, he told another man, “go in there and get you a piece.”

In 2009, after Melina Benninghoff was taken to task by blogger Mark Bennett because his articles were showing up on her website under her name, Wayne Conley — who turned out to be the tech guy behind Benninghoff’s website –  decided he was going to get him a piece of Mark Bennett.  Among other things, Conley has falsely labeled him “the worst lawyer in Houston.” Later, he went after Brian Tannebaum (for this post) and Scott Greenfield (who most recently wrote about it here).

As before, Conley does not seem to know when he has tried to get a piece that’s just too much for him.

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I really don’t want to do the whole “retrospective thing” on my year.  As other criminal defense attorneys have noted, things can sometimes be rough.  Besides, I get nervous about discussing my actual cases too much online.  Which would I focus on, anyway?

As Scott Greenfield pointed out, “We are engaged in a process that begs us to push back a tidal wave of misery.  And another tidal wave after that.”

But it seems that every criminal defense attorney — or anyone else who blogs — has to do the obligatory “end-of-the-year” post.

This is mine.

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Recently, a rather astounding ruling — astounding to those of us who practice criminal defense in the United States, anyway — came out of a courtroom in Santa Ana, California.

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Shut up!  I don’t like what you’re saying!

Increasingly, this is the approach Americans — Americans! — are taking to deal with speech they don’t like.  Whether this involves the hateful speech of would-be dictators, the words of electronic schoolyard bullies, or just folks with whom we disagree on government policy, the New American Way is to stop them from talking.  Extra points if we can protect our own speech while squelching theirs. 

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It’s amazing how often history reports itself in things both small and large. 

I recently ran across one of the small things in this passage from Sinclair Lewis’s It Can’t Happen Here:

“Remember our war hysteria, when we called sauerkraut ‘Liberty cabbage’ and somebody actually proposed calling German measles ‘Liberty measles’?”  (Sinclair Lewis, It Can’t Happen Here (2005 ed.) p. 17, originally published in 1935.)

Can I interest you in some “freedom fries”? 

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A post by Gideon gave the final push for this post.  I’ve been thinking for a long time about “legal fictions,” particularly as they relate to gang cases.  Frankly, they irk me more than a bit.

You see, I’m what’s known as an idealist: I think the law should be understandable and it should mean what it says.  Some people think that makes me stupid; some think it makes me naïve; some (few) think it makes me a good guy.

I think it makes me an American.  True Americans are naturally idealists.

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A reader from India left a comment here stating, among other things,

Am very impressed with citizens['] rights in your country….I should say cops in our country take us for a ride and just twist things as per their whims [a]n[d] fancies as we have no clue of our rights.

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