Probable Cause

Concerning the difficulty of researching and writing historical ethnographies, the anthropologist Gananath Obeyesekere, states:

[I]t ought to make us self-conscious about our vulnerability.  And the fact that we are not on very solid ground also ought to make us ethically and politically sensitive when we write about other cultures.  In historical ethnography, it should alert us to several acute methodological problems when we deal with archival and documentary material written before modern ethnography even got off the ground.  …  “Any ontology we use to ground the human sciences must ultimately be based on ‘faith’ since any ontology of even minimal significance must derive from a variety of sources, including the scholar’s religious and cultural heritage; and any ontology that we employ can never be final since the very historicity of our being prevents that.”  (Gananath Obeyesekere,The Apotheosis of Captain Cook: European Mythmaking in the Pacific (1997) 200.)

Well, what’s that got to do with criminal law?

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In 1956, with freakishly-ironic prescience, Philip K. Dick wrote:

As they walked along the busy, yellow-lit tiers of offices, Anderton said: “You’re acquainted with the theory of precrime, of course.  I presume we can take that for granted.”

“I have the information publicly available,” Witwer replied. “With the aid of your precog mutants, you’ve boldly and successfully abolished the postcrime punitive system of jails and fines.  As we all realize, punishment was never much of a deterrent, and could scarcely have afforded comfort to a victim already dead.” (Philip K. Dick, The Minority Report (1956).)

The story continues:

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For eight years, off and on, I had a relationship with — lived with — someone. It was a toxic relationship. She not infrequently berated me for what were really insignificant and only actually perceived slights. She was a wonderful woman.

I have a memory from high school of a friend who engaged in what today would be considered an act of felony vandalism. It may have been then, too, but in those days we understood that sometimes kids did destructive things, because, by definition, they’re immature. We didn’t saddle them with felonies because of it. But I digress (as I am unfortunately wont to do). He was a great guy.

These days, I ostensibly make my living as a criminal defense lawyer in Fresno, California. As you might imagine, I rub elbows with a number of deputy district attorneys. Not infrequently, I’m mystified by their attitudes towards people accused of crimes where there is little (or even no) evidence beyond innuendo and supposition to support the charge. These DDAs forge full steam ahead towards a conviction, sometimes stretching the law — in some cases even breaking the law — in order to obtain a conviction. The majority of them are pretty nice people.

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Before starting this post, let me point out that for years I was a card-carrying registered Republican. My beliefs about the Democratic Party are such that even after coming to the sad conclusion that I could no longer support the Republicans, I registered as “No Preference.” For reasons mostly relating to time, I won’t go into all the reasons for this right now.

However, I miss the old Republican Party. If we had truth-in-­­advertising laws, the new Republican Party would change its name to the “Let’s See If We Can Destroy America” Party. Then maybe we could have a real Republican Party again.

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