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Absence of Law

I have a difficult time these days referring to myself as a defense lawyer. It’s not because of the usual negativity that one encounters as a defense attorney. Many people on hearing that someone is a criminal defense lawyer will have an automatic negative reaction and ask “how can you defend criminals?” I’m used to that. (Forget the fact that a large number of people charged with crimes in Fresno are actually not guilty.)

No, the problem is my ongoing encounter with law enforcement officials and judges who literally do not care what the law is. They’ve made a decision about what they think should happen with a particular defendant and — by God! — they’re not going to let the facts or the law stand in their way.

Makes it easier to understand how it’s possible for a police officer to believe that making a woman strip and submit to a body cavity search on a busy roadway (Update 2015: the link has disappeared) is a legitimate exercise of his power. But I digress…

Recently, I represented a client at a parole hearing.[1] This poor guy has a parole agent who looks and sounds like obnoxious poor white trash, but that’s just one reason not to like her. The main reason not to like her is that she apparently believes that my client does not deserve to be let out of prison. Ever. So every time the California Parole Board is “stupid enough” to let him out, she makes up a reason to put him back in.

Her doing this would not be as much of a problem, though, if it were not for the parole hearing officers, or commissioners. After all, law enforcement officers (which includes parole agents) break the law often and overstep their authority even more often. (The last time I was able to read the Fresno Bee, a couple of weeks ago, it had three separate stories about officers overstepping their authority — one of those stories was the one mentioned above about the body cavity search of a woman on a busy street who was stopped for not wearing a seatbelt; another involved an officer shooting someone in a road rage incident, as I recall; I forget the third thing. I recall that for about a week, you could find at least one story per day about police officers or district attorneys who committed crimes. After awhile, you just get used to the idea that a large number of police officers are just uniformed criminals.) But judges and commissioners are supposed to be “gatekeepers” who control the introduction of bad evidence and are supposed to ensure a fair hearing.

During the “hearing,” I made numerous objections, starting with the point that there were no facts in dispute at the hearing. Thus, there was no need for any testimony. We were totally willing to stipulate — that is, agree to the truth of — the facts as outlined in the police officer’s report. However, both the parole agent and the parole hearing officer were aware that if we proceeded just on the facts presented in the police reports, they’d have no reason to put my client back in prison. The agent as much as said so. (She thought it was important for the hearing officer to hear “what kind of person” my client was and he couldn’t get that just from the police reports. But what kind of person my client might be is irrelevant to the question of whether or not he violated his parole conditions, which he didn’t.) So we had several officers come in to testify. One of those officers admitted that he was testifying about something he never saw. Someone else saw it and supposedly told him about it. Another officer was allowed to testify over my objection even though before he testified, the parole agent told the hearing officer that the witness had not witnessed anything. The parole agent and the police officer admitted that he wasn’t even present when the incidents for which my client was charged occurred.

Most of the testimony, therefore, relied upon hearsay. The officers said that they didn’t actually see or have personal knowledge of certain things, but they were told about them. Objections to their testifying about these things were overruled. How would you like to be arrested, charged, convicted and imprisoned because someone heard that someone heard that you might have done something wrong?

The primary charge against my client was that the parole agent had pulled a new parole condition out of her…back pocket and then violated my client because she said he violated the condition. Since, technically, parole agents can’t just pull new conditions out of their…back pockets, now matter how much garbage they keep there, I argued this was improper.

But the officer who was not present and had nothing to do with the case said that he gets scared whenever he goes to my client’s home, because he said it’s a “known gang house” and he thinks the parole agent needs to pull more conditions out of…back pocket “for officer safety.”

The officer safety issue is this: when the police officers came to the home and became a little rough with some of the people there, someone in the home warned them that they were being videotaped. And we all know how kindly uniformed criminals take to being videotaped.

Today, police routinely overstep their authority and they routinely lie about having done it. Why? Because most of us never run afoul of law enforcement. (Notice, I didn’t say “the law.”) Although the number of police officers prowling the streets have increased dramatically in the last couple of decades, there are still more non-law-enforcement people out there. Consequently, unless you are in the wrong place at the wrong time (i.e., somewhere near a bored police officer who needs a little excitement), or unless you actually do something wrong (yes, I do actually believe there are some criminals out there; I just don’t believe there are as many as the police think there are), you probably aren’t going to have a run-in with them.

And since most of us never run afoul of law enforcement, we still think of them as protectors, as good people. Actually, most of the time, they are. But almost all police officers these days will lie, in court, if they think it will help ensure that the prosecutor wins the case. Some of them still have enough scruples that they won’t tell a bald-faced lie; instead they’ll exaggerate something (like the officer who says he’s afraid to go to my client’s home, even though my client has never behaved violently, even when the police are out of line). Or they might leave out something, like the fact that the information they’re telling the court wasn’t actually witnessed by them personally.

In the end, this harms all of us. It was things exactly like this that caused our Founders to rebel against King George and start the Revolutionary War. The willingness of the courts and law enforcement to ignore the law, or to twist it to their own desires, breeds contempt for the law. This contempt is what’s “creating” more criminals: people who have no respect for the law are obviously not going to be concerned about whether or not they follow the law. Hell, why should they? The courts don’t. The police don’t. People who have had a few run-ins with the courts and law enforcement thus have no incentive to do so. And they certainly have no model for it!

As more people learn that the law does not deserve to be respected, those in power imprison increasingly more people. This increases the pressure on the system, which is already broken. Not only do larger numbers of people refuse to consider the law worthy of respect, but the rest of us, mislead by those in power, become convinced tougher laws are needed to maintain control. We vote to put people away for longer periods of time. And that costs money.

It’s time to stop the insanity. The next time you serve as a juror, or vote on a crime bill, or have any other say in how the system works, think about what you do before you do it.

The courts and law enforcement officers do not care if the system works. They collect their paychecks regardless of how things go. In fact, because we don’t think before we act, the more they screw things up, and the worse things get, the more money and power we give them. In a working system, their power is less arbitrary, more limited; they cannot act on their own desires or whims. And you’re not going to complain about them doing their jobs poorly. So, again, they do not care if the system works.

If our system is going to work, you have to make it work. You want less crime? Help people learn to respect the law again by making the law respectable. Stop giving prosecutors a free ride. Do what our Founders thought was right: make them prove people guilty beyond any reasonable doubt. Stop giving our judges a free ride. Don’t elect them because they’re “tough on crime.” The job of a judge is not to be “tough on crime.” The job of a judge is to judge, and to judge fairly.

What would happen to the world if we started electing judges based on their reputation for conducting legal proceedings fairly? Who knows? We might become a nation of laws again.

  1. I deliberately sat on this post for several weeks to try to cool down and stop being angry about the obvious abuse of power, ignorance of law, and refusal to follow the law when it was pointed out, on the part of the parole agent and the parole commissioner.