The Birth of the Fourth Amendment

Back then, the King owned the land.  The only thing the King’s law enforcement officers needed was a desire to stop and search the person, or his wagon, stagecoach, horse, ship, or boat.  If someone did ask “why are you doing this?,” one of two types of answers would probably be given.

The first type of answer might be something like, “the person was acting nervous when he saw me.”  The King’s officer might go on to say, “The person kept glancing at a box in the corner of his wagon and then over his shoulder.  He appeared to be nervous and was sweating.”

The second type of answer was more succinct:  “I am an officer of the King.  I am authorized to search anyone, at any time, to protect the King’s interests.”

Of course, sometimes no reason was given at all.  The person objecting to the actions of the King’s officer was simply beaten into submission.

Shortly after the success of the Great Rebellion — which itself happened because people got tired of this attitude of the King and His Officers — the United States was born. Partly as a reaction to the treatment they remembered suffering from the King’s officers and partly to ensure that no future law enforcement officers of the new government ever used these excuses again, the people of the United States demanded the addition of a Bill of Rights — the first 10 Amendments to the Constitution — which included a requirement that officers of the government in the future must first get a search warrant if they wanted to search a person’s things.

Thus, the Fourth Amendment of the United States Constitution states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

But as with most stories that begin with the words “once upon a time,” so, too, is this one — including the requirement of a warrant based upon probable cause — only a fairy tale.

The Death of the Fourth Amendment

At least since the early 1980s, in most cases the United States Supreme Court has “repeal[ed] the Fourth Amendment warrant requirement.”  United States v. Ross, 456 U.S. 798, 827, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1986) (Marshall, J., dissenting).

Courts like to say that:

[O]ur analysis begins, as it should in every case addressing the reasonableness of a warrantless search, with the basic rule that “searches conducted outside the judicial process, without prior approval by a judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.  Arizona v. Gant, 129 S.Ct. 1710, 1716, 173 L.Ed.2d 485 (2009).

But just about everything these days comes under a specifically established and well-delineated exception.  Even stuff that doesn’t seem to come under a specifically established and well-delineated exception actually does.  As E.T.A. Hoffman wrote in his German satirical tale, “Master Flea”:

When reminded that, after all, a crime had to have been committed for there to be a criminal, Knarrpanti opined that once the criminal was identified, it was a simple matter to find out what his crime had been.  Ingo Müller, Hitler’s Justice: The Courts of the Third Reich, with an introduction by Detlev Vagts (1992), p. 3.

Where one of the modern versions of the King’s officers feels the need to perform a search, it’s a simple matter to tailor his testimony at any subsequent suppression hearing so as to come under one of the exceptions.  Having identified the criminal, it’s a simple matter to find an exception to search for the evidence of his or her crime.

Searching People On The Street

Want to search a person on the street?  No problem!  True, the United States Supreme Court has repeatedly stated:

No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.  Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

But in the same case just cited, the Court went on to hold that:

[W]here a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.  Terry v. Ohio, supra, at 30.

Who decides whether in light of his experience, the officer had reason to believe criminal activity may be afoot?  Well, it says “his” experience, doesn’t it?  Another attorney recently told me of a case where the fact that “a white guy was hanging out with some suspicious-acting black guys in an area of town where white guys don’t normally hang out” was used to justify the search of the group.  In “his” experience, the officer said, this was indicative that something was fishy; these guys were up to some kind of no good fishiness.  And since it was night time, well, the cop just had to search them for the protection of himself and others.  The court bought that explanation.

But Terry was “confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer,” wasn’t it?  Terry v. Ohio, supra, at 29.  What about drugs and other contraband?  No problem!  “[S]o long as the officers’ search stays within the bounds marked by Terry,” officers may seize drugs detected during a patdown search.  Minnesota v. Dickerson, 508 U.S. 366, 373, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993).

And if the person ends up arrested for something, an “inventory search” done at the station will uncover anything hidden in pockets or sometimes even body cavities.  Fuller v. M.G. Jewelry, 950 F.2d 1437, 1448 (1991); United States v. Andrade, 784 F.2d 1431, 1433 (1986).

Vehicular Searches

Want to search someone’s car?  No problem!

[Y]our [sic] a trooper, youve [sic] got an entire state to follow someone if you need to in order to find some kind of violation. 9 [sic] times out of 10 if i [sic] can follow a car a few miles i [sic] can find some sort of violation to stop someone.  From a comment by an Oklahoma member of officer.com.

And if law enforcement thinks the items they want are in a car, this is just way cool, because the United States Supreme Court — after, as noted above, giving the obligatory nod to the idea that “searches conducted outside the judicial process, without prior approval by a judge or magistrate, are per se unreasonable under the Fourth Amendment,” Arizona v. Gant, supra, at 1716 — recently reiterated that:

[C]ircumstances unique to the automobile context justify a search incident to arrest when it is reasonable to believe that evidence of the offense might be found in the vehicle.  Arizona v. Gant, supra, at 1714.

No warrant necessary.  United States v. Ross, 456 U.S. 798, 800, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982).  Although cars are impounded almost daily, locking up a car and applying for a warrant is too difficult.  Id. at 807, fn. 9, 815-816.  Thus, the convenience of law enforcement makes applying to a magistrate for a warrant unnecessary, even though the United States Supreme Court, speaking out of the other side of its mouth, has said,

[T]he mere fact that law enforcement may be made more efficient can never by itself justify disregard of the Fourth Amendment.  Arizona v. Gant, supra, at 1723, quoting Mincey v. Arizona, 437 U.S. 385, 393, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978)

Guess what makes it reasonable to believe there is evidence of a crime in the car?  While all sorts of things help, the most frequently cited reason is “looking nervously at the box in the corner of his wagon and then over his shoulder.”  Modernized, of course.  See In re H.M., 167 Cal.App.4th 136, 144-145, 83 Cal.Rptr.3d 850 (2008); United States v. Nikzad, 739 F.2d 1431, 1433 (Cal. 1984); but see also, United States v. Hernandez-Alvarado, 891 F.2d 1414, 1418-1419 (Ariz. 1989).  This is, in fact, the most common explanation given in the courts here in Fresno, Madera, Kings and Tulare counties where I am a criminal defense lawyer.

There’s another little irony in this.  Although we’re repeatedly told that law enforcement officers are trustworthy — so trustworthy, in fact, that their word is usually accepted even over videotape evidence showing the contrary — courts have repeatedly held that if a car is impounded, a search is justified without a warrant in order to prove the police have not stolen anything from the car while it was impounded.  South Dakota v. Opperman, 428 U.S. 364, 369-371, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976).  Apparently, this prevents theft by the police, because they won’t steal during an inventory search; they might if one is not done.  I guess this is because although they might steal, they won’t lie; so inventories will always be accurate and should always be done.

Therefore, given that it is not a violation of the Fourth Amendment to arrest a driver who pisses off the officer, with subsequent impound of the car, this provides the ultimate “catch-all” exception for vehicular searches.  Atwater v. City of Lago Vista, 532 U.S. 318, 354-355, 371, 121 S.Ct. 1536, 149 L.Ed.2d. 549 (2001).  Even when the car is not impounded, prosecutors use this rule to argue “inevitable discovery.”  See New York v. Class, 475 U.S. 106, 119, fn., 106 S.Ct. 960, 89 L.Ed.2d 81 (1986); United States v. Andrade, supra, at 1433.

Probation, Parole & Consent: Since When Is Anyone’s Home A Castle?

No sexism is intended by me in pointing out that it was once said,

A man’s home is his castle.

Want to search a house?  No problem!

With one out of every thirty-two Americans under correctional supervision, you’re almost certainly able to do it under the exception for a “probation search.”  This lets you search every room in the house, regardless of whether or not the doors are locked to prevent the probationer from having access to that area of the house.  This is possible because not only do probationers and parolees have to agree to search conditions in order to get probation or parole, but courts — including the California Supreme Court — have held that these conditions can be used as a pretext for searching the home to find evidence to use against third parties.

In other words, if “Gayla” agreed to be subject to warrantless searches so that she could get probation, then “Cheryl” and “William” will also be subject to warrantless searches because they live with “Gayla.”  And it doesn’t matter that the police never intended to search for evidence that “Gayla” was in violation of her probation.  As long as the police know that “Gayla” lives in the house, they can search it to find evidence against “Cheryl” and “William.”  People v. Woods, 21 Cal.4th 668, 681, 88 Cal.Rptr.2d 88 (1999).  And they don’t even need a reasonable suspicion that there is evidence of any crime.  Id. at 675.  They don’t need a reason; they are society’s officers and they are basically authorized to search at any time to protect society’s interests.

In theory, if there is an area of the home that is not jointly controlled by the probationer and the target, a warrant is required to search that area.  Woods, 21 Cal.4th at 682.  In reality, this is not an issue.  Is the target’s bedroom door unlocked?  Obviously, the probationer could have access to this room and therefore jointly controls it.  Is the target’s bedroom door locked to prevent access to the probationer?  Hey, you just entered the house to do a search!  What if the target decides to destroy the evidence before you return with a warrant?  Ker v. State of California, 374 U.S. 23, 40-41[83 S.Ct. 1623, 10 L.Ed.2d 726] (1963).  Officers and courts refer to the need to search under that situation as being one of “exigent circumstances.”  Id.

Besides probationers and parolees, other people living in your house can also give consent.  Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990); People v. Howard, 166 Cal.App.2d 638, 651, 334 P.2d 105 (1959).  If you’re home, maybe you can do something to stop it.  Georgia v. Randolph, 547 U.S. 103, 106, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006).  But if you’re not….

No problem!  You can afford a criminal defense attorney, can’t you?

The Accused Himself/Herself Consents

Finally, there is the situation where the accused person has actually consented to the search.  United States v. Drayton, 536 U.S. 194, 206-207, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002).  For the most part, this makes sense.  But you’d be surprised at the number of people who “consent” to being searched when they know the police have no reason to search them and when the people being searched know they have contraband on them and where, later, the only people who remember anyone consenting to anything are the police.

Conclusion

Now things aren’t quite as bad as I’ve presented them above.  Once in a blue moon, a court will grant a suppression motion, allegedly on some principle of law and another court will uphold that decision even on appeal.  I’m not exactly sure how this happens, although I’ve actually written more than a few motions that made it happen.  Generally speaking, when it does happen, the stakes are not high.  Typically, it will involve some small amount of drugs where the client doesn’t have a long history of dealing.  Or it might be a case where someone was charged with carrying a concealed weapon, but there was no evidence it had been used to hurt anyone.  Perhaps the rule the court follows is that they’re willing to uphold the Constitution so long as actual bad guys don’t get away with significant crimes.

The truly scary thing from a constitutional standpoint is the number of loopholes, or “exceptions.”  And, as I indicated above, the particularly scary thing is the exception for inevitable discovery.  This is the exception that swallows the Amendment.  Generally speaking, the courts apply it in this really odd way: If police officers would have done their job properly, they might have discovered the evidence.  Thus, inevitable discovery applies.

Alert readers will have noticed that I explicitly demonstrated how the two types of answers given by the King’s Officers prior to the existence of the United States are alive and well today, despite the best efforts of our Founders.  The third possibility that I mentioned is, as well.  Numerous cases exist wherein people have been beaten by the police for questioning them.  As one officer has testified,

We just beat people up in general.

….

To show who was in charge.  We were in charge, the police.  David Cole, No Equal Justice: Race and Class in the American Criminal Justice System (2000) pp.24-25.

As I wrote in my last post, if you want to see how this works out in real life, try challenging a law enforcement officer’s actions.

Don’t let me mislead you: you won’t know everything you need to know to be a gang expert.  That takes years of training in sociology, anthropology and/or psychology, plus a lot of field work.  There are actually very few gang experts around.  But you will know everything you need to know to testify, under oath, in court, about gangs and why the jury should convict any gang member about whom you testify.

One more caveat: you won’t actually be able to testify in court about these things as a “court-approved” expert.  It’s kind of like the Wizard said to the scarecrow in The Wizard of Oz.

Why, anybody can have a brain. That’s a very mediocre commodity. Every pusillanimous creature that crawls on the Earth or slinks through slimy seas has a brain. Back where I come from, we have universities, seats of great learning, where men go to become great thinkers. And when they come out, they think deep thoughts and with no more brains than you have. But they have one thing you haven’t got: a diploma.

With the “knowledge” I’m about to impart to you, you’ll know all you need to do what gang cops do.  But they have one thing you haven’t got: a badge.

Rule #1: You are testifying about an evil, vile, lowlife gang member.  They’re all the same.  Whatever you say, your aim is to make sure the jury never sees anything different.  (Unless the prosecutor has deemed the gang member the victim, in which case your job is to argue that he’s still a human being and deserves justice.  Just remember to testilie the opposite of what you normally would and you’ll be fine.)

If a slimy defense attorney tries to humanize her client, you must do what you can to resist.  Any ordinary emotions, motivations, or other reasons for the gang member’s behavior must be explained away.  Better yet, see if you can twist normal emotions into something horrible.

For example — this is one of the biggest things you must learn to deal with — human beings generally want to be treated like human beings.  If someone mistreats a human, most humans will react with some kind of hostility.  If you want to really see how this works, the next time a police officer asks you a question, say, “What business is that of yours?”  Then come report back to us on his reaction…if you can.

But remember, because they are not human beings, gang members are different.  For a gang member, it’s not about being treated in the normal way human beings expect.  Nooooo…it’s all about “RESPECT.”  And this is why jurors need gang “experts” to explain things to them.  Because we’re not just talking about Aretha Franklin’s “R-E-S-P-E-C-T” here.  (However, Aretha is African-American, so you should say she’s “probably” a gang member if you are asked.)

At any rate, gang members don’t want “just a little bit.”  They don’t just want to be treated right.  It’s not like it is with every other person on the face of this planet.  With gang members, they want to beat the crap out of everyone to “earn” some respect.  Make sure the jurors know that “everyone” means them (the jurors), too.

What’s important is to make sure the jury knows that normal human emotions don’t apply when evaluating gang member behavior.

Rule #2: A gang member actually doesn’t do anything just for himself.  Everything — and I mean everything — the gang member does is “for the benefit of his criminal street gang.”

So if it looks like a gang member was jealous or immature and got into a fight with someone because he thought they were flirting with his girlfriend or because they looked at mad-dogged him, the jury must understand that isn’t really the reason.  That looks too much like how ordinary jealous or immature human beings react under those circumstances.  That involves normal human emotions.  The reasons you want the jury to hear are all aimed at showing he was trying to benefit a criminal street gang, or that he was earning respect for the gang.

Did he kick a dog because it yelped and startled him when he accidentally stepped on its tail?  No! Weren’t you listening?!  That might be a normal immature human reaction.  This dude kicked the dog to earn respect and to benefit a criminal street gang.  If he let people think that he wouldn’t enforce the rules on respect in this instance, the next thing you know, he’d be a laughingstock and gang members would come from as far away as New Zealand just to beat him down and laugh at him.

Rule #3: This is similar to Rule #2, but more personal and comprehensive.  You must get the jury to subsume the personality, activities, thoughts, beliefs and anything else about the gang member into the gang itself.  Remember!  Gang members are not human beings.  They are part of a collective, like the Borg.  Only worse.  If one of them is caught carrying a concealed weapon, your job is to teach the jury how every gang member within a 250-mile radius knew that gang member had it and actually personally possessed that gun, also.  This way, all the jury has to decide is that Gang Member A possessed a gun to convict Gang Member B for burglarizing a house.  Yes, yes, yes; that doesn’t make sense.  Look, do you want to be a gang cop, or not?

Now if you do your job right, this works even though Gang Member B never heard of Gang Member A.  (If you do your job wrong, you will be assigned to desk duty in Firebaugh.  (Your first job will be to find yourself a desk.))

This rule is particularly important because when it comes time to discuss things like the truly nasty (and you will make sure they’re nasty and explicated to the jurors in gory detail) “primary activities” of the gang, the jury will recognize this is actually supposed to be evidence about the character of the gang member sitting at the defense table in your case, now.

Rule #4: When the prosecutor asks you a question, he will probably deliberately lead you.  (This is permissible when questioning “expert” witnesses, at least in California.  Because we believe experts are so knowledgeable about what they do that they would not know how to answer a question unless the question itself contained the answer the jury needs to hear.  That’s why we call them “experts.”)

Pay attention and be sure to follow the prosecutor’s lead.  Remember that your answers should be tailored for maximum prejudice.  The best way to do this will be to simply parrot back the words of the prosecutor.  However, if the prosecutor screws up, you may have to enhance or build on the leading question.

For example, gang members do not “look at” or “stare at” people; they “mad-dog” them.  This will give you the ability to follow up with an explanation of “mad-dogging” and to tell the jury that it’s a deliberate provocation, which shows the gang member is guilty of whatever you say he’s guilty of.  If the jury just thinks the gang member was looking at someone, they might not understand that the other person was justified in attacking the gang member and that the gang member was not justified in fighting back.  They might think the other guy should be on trial instead.  Thus, they might acquit the gang member of an assault or attempted murder.

Rule #5: Gang members don’t have nicknames.  They have monikers.  This shows how evil they are.  For example, I knew a white guy once we called “LK,” short for “Lady Killer.”  (He was a big flirt.)  This was a nickname.  One way you can tell is that I mentioned he was a white guy.  (With certain limited exceptions that are beyond the scope of this article, white guys can’t be gang members because their gangs aren’t formed specifically to commit crimes, whereas all non-white gangs are obviously formed specifically to commit crimes.) If the dude was not white, there’s a good chance that “Lady Killer” would be a moniker and you would tell the jury that “Lady Killer” shows that he’s a violence-prone misogynist whose favorite hobby includes murdering innocent women.  Like the ones on the jury.

Rule #6: Gang members mostly sit around doing nothing, drinking, partying and so on.  However, you must never admit these are their primary activities.  Nope.  Their primary activities include murder, robbery, assaults and drive-by shootings.  If you have a good memory and want to be creative, you can try to learn a couple more crimes from Penal Code section 186.22(e).  But don’t.  The other crimes might not prejudice the jurors as much.

And prejudice is the name of the game here.  Gang X doesn’t just murder lots of people.  You want to talk about how the gang member walked into the house, found a man in a full-body cast recuperating on the couch in the living room and splattered his brains all across the drapes.  Then he turned and shot an unarmed woman right through the eyeball, while her twin 5-year-old daughters screamed and ran from the room.  The little girls, being naïve and innocent little girls, thought they could hide by ducking their heads under the pillows on mom’s bed.  The pillows helped muffle the sound when the gang member pushed the end of the pistol into it and pulled the trigger.  (This is exactly the way one FBI agent told a jury about a so-called “predicate crime” allegedly committed by a gang member my client had never met, because they lived in completely different areas of the state and were members of what the agent described as separate “sets” of what the agent said was the same gang.  If anything, I’ve made it less gory.)

Oh, and if some stupid defense attorney tries the trick of asking you why, if murder is the primary activity of the 4,000-plus-members (or maybe it’s 5,000 or 6,000) of the Bulldogs gang, there aren’t more murders?  Use that opportunity to laud the great work of your fellow officers.

I know, I know.  That doesn’t really explain how there aren’t as many murders as you’d expect with thousands of people out there each of whose primary activity is murder, but nothing else you say makes sense either.  Trust me, the jury won’t think about that.  If jurors actually did think about these things themselves, you’d never be on the stand in the first place.

Rule #7: Finally — and this is really important, especially if the crimes of the gang you’re hanging on this defendant weren’t gory enough (see Rules #3 and #6 above) — don’t get bored and start to drift off after you’ve done all the above.  Listen carefully for the prosecutor’s wrap-up on your testimony.  It will go something like this:  “In your expert opinion, were these crimes committed for the benefit of a criminal street gang?”  There’s only one answer.  And it’s not “yes.”  Well, not just “yes.”  The correct answer is: “Yes.  In my expert opinion, these crimes were committed for the benefit of a criminal street gang.“  Because unless you tell the jury this, they might try to figure it out on their own.  And they might not go along with the prosecutor if they start to actually look at the evidence instead of just taking your word for it.  So remind them that you are the expert and you think the defendant is guilty.

Okay.  Now you’re ready to play.

Or, rather, you would be.  If you only had a badge.

A fellow criminal defense attorney, a woman I consider to be a very close and dear friend, lost her three youngest daughters this weekend.

Brenda Hook’s world was shattered this weekend when she went from having a household noisy with children to a household devoid of them.

I have never had children. So I cannot actually understand the loss of even one child. I can nevertheless feel the deep pain and anguish of a mother — my friend — crying and wailing “my babies! my babies!” Even though I have no frame of reference for this level of pain, it wants to render me in pieces. How much more painful must it be to be Brenda. Three beautiful, vibrant, well-liked, energetic bundles of life gone in a moment, without even a decent chance to say goodbye.

Brenda will never see her babies again. Not even to bid them “goodbye.”  Even if there were caskets, they would of necessity be closed.

The tears of those who attended the candlelight vigil at the home will eventually dry.  With time, the help of her faith, her husband and her friends, Brenda’s may, too.

I’m sure that at the moment, Brenda considers this a sadder fact of life: she — Brenda — must somehow go on. And that brings me to do something I’ve never done before. I’ve certainly never done it — nor ever expected to do it — on this blog.

If, having heard Brenda’s story, you are willing to assist her with the massive expenses that her loss entails, I encourage you to continue reading.  Amy Guerra sent out the following email, which contains details on how all of us can help Brenda and Patrick, her husband.

As you may know on Friday, May 22nd, a very good friend, classmate and coworker of ours suffered the unfathomable loss of her three youngest daughters, who were killed when their small Cessna plane crashed just ½ mile from the Fallon Airport. Their father was the pilot. Those that know Brenda, and even those that didn’t, have been asking how they can help. There are several ways.

There are two trust funds set up in the girls’ name to assist Brenda with funeral expenses, travel expenses (to Fallon), etc.

Ciummo & Associates (Brenda’s employer) set up the “Hook Children Memorial Fund” set at the Central Valley Community Bank in Madera. The other one was set up by the family at Central Valley Community Bank and is called the “Brenda C. Hook Memorial Fund.”

There are two branches here in Fresno:

Central Valley Community Bank
Main Branch
600 Pollasky Avenue
Clovis, CA 93612
Phone: (559) 323-3480

Central Valley Community Bank
Herndon & Fowler Branch
1795 Herndon Avenue #101
Clovis, CA 93611
Phone: (559) 323-2200

Some friends and I have put together a website to honor her children.

One of Brenda and her family’s greatest needs right now is support. Please visit the website to leave messages for her, to post memories of the girls (for those of you who knew them), to view pictures and to light a candle. At some time, the notes and messages on the website will be made into a keepsake book for the girl’s family.

Please forward this message if you are able… we hope to have plenty of comments to substantiate a large book.

The Memorial Website:
http://kaitlyn-rachel-and-mackenzie-hook.memory-of.com

A link to one of the many news stories covering the girls’ tragic accident:
http://www.foxnews.com/story/0,2933,521499,00.html

Finally, let me say a few words about Patrick.

Right now much of the attention has been focused on Brenda.  And that’s completely understandable as she is a mother who has suffered a terrible loss.  Patrick, too, has suffered a loss.  Patrick frequently cared for the girls, helping them to get ready for school as well as helping Brenda get off to her work as an attorney.  And, at night, when Brenda frequently had to put in long hours in the office after a long day in court, Patrick helped gather everyone together and got everyone fed. As Amy Guerra, another great friend of family noted,

I saw the way those girls treated him — they loved him as much as any person can love another person.

And in all the commotion, Patrick has not only had the unenviable task of trying to console his wife, but of orchestrating the comings and goings of extended family and other people in and out, reporters coming and going, well-wishers, frequent telephonic inquiries, etc., thus shielding Brenda and helping to give her time and space to grieve.

In all this, Patrick has had to put his own feelings on hold for now.

Patrick, when things calm down enough, you and I are going to sit together in my backyard, throw back a beer or two…or however many we feel the need for.  And there, when everyone else has been taken care of and has spent at least a good portion of their grief,  we, hidden by the trees and mistaken for cats caught in a lawn mower — we’re going to wail our hearts out and flood the lawn with our own tears.

In 1968, the United States Supreme Court said,

This inestimable right of personal security belongs as much to the citizen on the streets of our cities as to the homeowner closeted in his study to dispose of his secret affairs. For, as this Court has always recognized,

No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.

(Terry v. Ohio, 392 U.S. 1, 8-9, 88 S.Ct. 1868 (1968), quoting Union Pac. R. Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734 (1891).)

But as Bill O’Reilly would say, “That’s what the people who are paid for hating America want you to think.”

According to O’Reilly, “once riddled with violent crime, New York is now largely safe, thanks to aggressive policing.”  The police in New York are “proactive” about crime, stopping it before it occurs.  O’Reilly goes on to point out that “thousands of lives have been saved.”  Sounds pretty good! I want to know more about this “proactive” policing!

As it turns out, “proactive policing to stop crime before it occurs” means “if we see someone on the street and we’re not busy with something else, we’ll stop ‘em, frisk ‘em, question ‘em.”  About nine out of every ten of them will be completely innocent of any crimes; they’re just minding their own business, going about their ordinary daily lives; those nice docile submitizens will be allowed to continue on their way.  They shouldn’t really mind that, should they, if they have nothing to hide?

Meanwhile, thanks to the cooperation of those nine out of ten, New York — and AmeriKa! — will be a safer place.

How will we decide which of the people we see walking down the street to stop?  Well, apparently one of the major pieces of criteria is skin color.  African-Americans are stopped much more frequently than white.

“What do you want from us?,” O’Reilly seems to ask.  “Sixty-nine percent of New York City violent crime victims, describe their assailants as ‘black.’”  Only “five percent are described by the victims as ‘white.’”  So, again, “what do you want from us?”

It’s hard to believe O’Reilly actually says this, but he says, “If you’re investigating and trying to stop crimes, to whom would you be talking?”

BLACK PEOPLE! I mean, come on!

There are a couple of problems here, of course, not the least of which is the constitutionally-endorsed belief that

It [a public stop and frisk of a citizen] is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.  (Terry v. Ohio, supra, 392 U.S. at 17.)

The second is the implication that because just over two-thirds of victims report (sometimes mistakenly) that their assailants were black, the overwhelming majority of the 151,000 people stopped in the first three months of 2009 should be, too.  Makes sense, doesn’t it?  A disproportional representation among the accused seems to me like it should justify impugning an entire class of people, ninety percent of whom will be found to be completely innocent once they are publicly stopped, frisked and interrogated.

To add insult to…well, um…insult, O’Reilly sandwiches his complaint about those people hating America by objecting to these stops in between his complaints about the government risking the lives of our soldiers by releasing images of prisoner abuse at Guantanamo.  And in exactly the same way that the government risks the lives of these soldiers by releasing the photos, so do the haters of America who object to stopping African-Americans for no good reason endanger the lives of those of us at home.

Americans, our problem isn’t Black Terrorists.  It’s the Black Plague of neo-conservatism that threatens us.  Innocent African-Americans and their supporters who object to these unreasonable searches and seizures — yes, I know, when the police stop people walking down the street and refuse to let them go about their business unmolested for a period of time, we prefer to call that a “detention” — anyway, innocent African-Americans and their supporters who object to these unreasonable searches and “detentions” aren’t what we should fear.

The ones we should fear are the “clear-thinking Americans” who seem to believe that by being a proponent of the foundational principles of our nation, the rest of us are “hating America.”

The timing could not have been more perfect.

This morning, thanks to a tweet from @ScottGreenfield, who re-tweeted it from @radleybalko, I encountered yet another similarity between trends in the United States of America and the totalitarian regime of Hitler in an article about a new Boy Scout Explorer program.  It seems that we’re preparing our children to goose-step their way to the Fourth Reich.

Sort of.

The children pictured with the article are clearly not Aryan.  They actually look a little more like dark-haired Hitler than the adored Aryan archetype.  Nevertheless, they are dressed to kill in their 21st-century Stoßtruppen wardrobe with matching automatic weaponry. And Hitler’s accolades regarding those of true German blood are echoed in the words of A.J. Lowenthal, a sheriff’s deputy in Imperial County.  (Imperial County.  How appropriate is that?)

This is about being a true-blooded American guy and girl.

Yep.  That’s what we need more of: True-bloods.  Not those namby-pamby Constitution-hugging liberal muggles like…um…like me, I guess.

Every time I — or others who see the same thing — try to raise the alarm on this, those who don’t see it begin to howl.  So first and foremost let me state, as I have so many times before, what I am not saying here.  I am not saying that the United States of America is currently a totalitarian state that looks in every respect like Nazi Germany.  I am not saying that we must completely abolish our police forces in order to avoid becoming Nazis.  I am not saying all — or even a significantly large portion of — our law enforcement officers are jack-booted thugs anxiously awaiting their opportunity to strip us of our constitutional rights.

For one thing, that’s what we have judges for.

What I am saying is basically what I said yesterday elsewhere: Nazi Germany did not spring fully-formed and fully-armed from the brow of Hitler.  Prior to the takeover of the government by Hitler, the Germans had a constitution not altogether unlike our own in the civil liberties that it “guaranteed.”  When the National Socialist German Workers Party (the Nazis) took over the government, they secured their dictatorial grip over the country by rescinding habeas corpus and other civil liberties.

Sound familiar?  In 2006, the United States Congress moved against habeas corpus.  Of course, it was only verboten for the “unlawful enemy combatant engaged in hostilities or having supported hostilities against the United States.” So who really cares?

But, uh…who gets to decide what an unlawful enemy combatant is?  If American citizens — say perhaps gang members? — engage in hostilities against law enforcement officers of the United States, are they “unlawful enemy combatants,” “street terrorists” to whom habeas corpus should not apply?  Could this be why California’s most well-known piece of anti-gang legislation is known as the “Street Terrorism Enforcement and Prevention Act”?  Could we stop obstreperous criminal defense attorneys like me by arguing that we support hostilities against the United States because of things like writing this blog article and encouraging resistance against laws we feel violate the Constitution?

Not today, certainly.  Not yet.  But though many people — including many criminal defense attorneys — refuse to recognize it, our civil liberties are, with increasing alacrity, being eroded, or outright abolished.  I know this is not appreciated or understood by the majority, but when we suspend the Fourth Amendment at the courthouse door, this is an impingement on our civil liberties.  It does not matter that the reason is “safety.”

The judiciary has a special role to play in regulating the state’s power to search and seize.  Judicial resistance to the writs of assistance had been strong [in the late 1700s], even after the Townshend Acts extended the jurisdiction of colonial courts.  (Andrew E. Taslitz, Reconstructing the Fourth Amendment: A History of Search and Seizure, 1789-1868
(2006), p. 61.)

Yet in modern times, our judiciary not only participates in stripping us of our rights, it leads the charge! Whether we’re talking about warrantless searches of people, including defense attorneys (but not prosecutors), who enter our courthouses, or warrantless searches by customs officials of laptops owned by Americans returning from outside the country, our courts not only ignore the Constitution, they promulgate rules that directly take away what the Constitution “guaranteed.”

How ironic that around 1773, just a few years before the American colonies declared their independence from the British to eventually become the United States of America,

When customs officials filed a new application [for permission to search Americans] accompanied by a supporting opinion of England’s attorney general, the chief justice insisted that he would grant only particular writs under oath swearing that the customs agent knew or reasonably believed that uncustomed goods would be found in a particular place.  (Taslitz, supra.)

Today’s courts fail to comprehend what our Founders clearly understood:

[G]eneral searches were implicitly seen as insulting because they violated principles of individualized justice.  Arbitrary decisions by executing officers could be limited by warrants specifying when, where, how, and whom they could search and seize.  Yet the growing understanding of what made a warrant specific required more.  The increasingly widespread definition of a “special warrant” was one that was both particular and based on adequate individualized evidence that a particular person had committed a criminal act or that the evidence or fruits of that act were in a particular location.  That principle would limit action by all branches of government, including the judiciary.  (Taslitz, supra, at p. 41 (bold-faced italic emphasis added).)

Eventually, the erosion of civil rights is going to irritate ordinary citizens enough that we will increase our resistance.

Fortunately, when that time comes, the Boy Scouts will be ready to help keep us from crossing the street.

Feelings of the average law enforcement official, district attorney, or juror notwithstanding, it does not follow from this that everyone charged with a crime is guilty of having committed the crime — or even that most are. And remember, Fresno County has a large number of people who are acquitted at trial, even though many people in this area seem to think that “if he is sitting there [in court], he must’ve done something.”

If it were true that everyone arrested was guilty, we’d have absolutely no need of trials.  And, again refusing to take into account the feelings of the average law enforcement official, district attorney, or juror, trials are a necessary component of any system that aims at justice.

Ironically, I have found that it’s often easier to defend guilty people than it is to defend innocent people.  For one thing, guilty people are typically less angry or upset about the fact that there is no justice in our courtrooms these days.  They almost seem to expect it.  But get an innocent person charged with a couple of strikes with the prosecutor offering a plea bargain of a non-strike felony and you’ve got a real problem.

Think about it.  Innocent people do get convicted.  How many stories have you heard about people being exonerated after some incredibly long period of years in prison?  There are hundreds of such stories.  And those are just the innocent people who we later find out were wrongly convicted; what about the ones for which innocence is never discovered?

So you can’t pretend there’s no risk.  You can’t say to yourself, “Well, if the person is innocent, then you’ll probably win at trial.”  It all depends on the evidence.  And if Americans have learned anything about the concept of “spin” in the last couple decades, I hope we can at least recognize that the evidence is going to depend in large part on who is doing the collecting of it.  Again, that’s why we have trials.  We want the evidence subjected to the crucible of adversarial testing.

So if you have an innocent client in the scenario I outlined above, you have a real difficulty.  A guilty client being offered a non-strike felony in place of the right to take a chance on two strikes at trial will probably not give you too much grief over your recommendation that he accept the offer.  An innocent person is going to be wailing and gnashing his or her teeth.  They’re going to want to fight it all the way if they can.

And if you do convince them of the serious risks ahead and as a result, they accept the deal, then you may have trouble sleeping for awhile.

What does this say about our system?  I’m not exactly sure.  I mean, it’s not like I didn’t already know the system had problems.

What am I trying to say by writing about this?  I’m not exactly sure about that, either.  However, I did have a situation recently in which I believed my client was almost certainly innocent.  Almost certainly.  And we were faced with exactly the kind of dilemma I outlined above.  (In fact, it was a little worse, but I don’t want to write the details here.)  My client could fight, take his chances and probably would have ended up convicted, based on the evidence and police reports.  But, as I said, he was almost certainly innocent.

In the end, he and his family decided that it was better to take the offer than to risk the alternative.

I’ve wondered since then if I shouldn’t have pushed them to reject the offer.  But the truth is that if they followed that advice and he was convicted, I would have probably had even more trouble sleeping than I do now.

There are really only two things I can hope writing about this will accomplish:

1. That people who might one day serve on a jury will read this and remember that “defendants” are people who have been accused of a crime, but that being accused doesn’t mean they committed the crime — that’s why we have trials!
2. That maybe there will be some discussion, or at least thinking, about this kind of situation among people who read this note.

I look forward to hearing from you.

Police in Tenaha are accused of committing — quite literally — highway robbery.

One estimate is that in a mere two years, the shakedown of drivers passing through Tenaha has netted the Department $3 million dollars.  If I were bringing in that kind of money, I’d be well on my way to retirement!

Truth is, the only thing that surprises me is the number of people who pass through Tenaha with so much cash in their vehicles.  One couple apparently had $50,000 in cash they were going to use to buy a restaurant.  Frankly, I’d think it wise to use at least a cashier’s check for such a business transaction!

What doesn’t really surprise me is the readiness and regularity with which the Tenaha officers apparently committed their streetside shakedowns.  It doesn’t take much time in the legal field before you realize that the most common “law enforcement” tool is The Shakedown.

And it’s not just police officers who are using it.  Even well-meaning — and I’m one-hundred percent sincere when I call them “well-meaning” — prosecutors and judges engage in the practice on a routine basis.  I’ve had more than one conversation which involved something along the lines of “your client can plead to this, or else this other more serious thing is going to happen.”

For example, a client may have been charged with two “strikes,” but the offer is to allow him to plead to a single non-strike felony.  Evidence for the strikes may be strong enough to believe the prosecution has at least a 50% chance of winning at trial.  Juries being what they are, it doesn’t make sense to go to trial and risk my client being zapped with two strikes, when he could enter a no-contest plea to a non-strike felony.

The prosecutor, as I said, means well.  The prosecutor may believe my client is absolutely guilty, but is willing to “give him a break” by making this “generous” offer.

The thing is, faced with Morton’s Fork, even an innocent person would probably take the offer; the tines aren’t exactly the same.

I can’t provide a link for this — one reason I haven’t blogged in awhile is I hate making statements like this where I provide a citation — but I once read that actuaries estimate there are 100,000 innocent people behind bars.  (Actuaries are the people who use statistical analysis to make predictions relied on by others, such as insurance companies, etc.)  I can’t remember if that number was for “innocent people behind bars in California” or “in America.”  I also don’t know how recent that information is, so that number may be low.  As rights aimed at ensuring fair trials decrease and Morton’s Fork situations proliferate, the number surely rises.

Another situation — much less acceptable, but possibly more frequently used — involves police investigations and district attorney’s office investigations where witnesses who are deemed less-than-cooperative are informed that they will become more cooperative (read: will show up and testify to what the police or DA want) or risk losing their children.  Theoretically, Child Protective Services does not work for either the DA or police, but the number of witnesses who have been threatened with losing their children if they don’t do what these folks want are legion.

The Tenaha Police Department, seen in that light, is just more blatant about shakedowns in that they’re obviously abusing their position of authority to do something unacceptable, but they’re just at a more extreme end of the same spectrum.

What they don’t tell you on television is that, increasingly, the attorney appointed to represent you will also be representing possibly as many as 200 other people at the same time.

Meanwhile, Fresno County continues to decrease the number of Public Defenders and necessarily therefore increases the caseload of those poor souls remaining.

How do we reconcile this with the United States Supreme Court having declared that “the right to the aid of counsel is of this fundamental character”?  (Powell v. Alabama (1932) 287 U.S. 45, 68 [53 S.Ct. 55, 77 L.Ed. 158]; Gideon v. Wainwright (1963) 372 U.S. 335, 342-343 [83 S.Ct. 792, 9 L.Ed.2d 799].)  After all, the “this” refers to a legal right that is “fundamental and essential to a fair trial.” (Gideon, supra, 372 U.S. at 342 (emphasis added).)

Yet as California’s First District Court of Appeal noted just last month:

“[I]ndigent defense in the United States remains in a state of crisis, resulting in a system that lacks fundamental fairness and places poor persons at constant risk of wrongful conviction” and…as a result, “the integrity of the criminal justice system is eroded and the legitimacy of criminal convictions is called into question.”  (In re E.S. (2009) 171 Cal.App.4th 1219, 1246 fn 8 [90 Cal.Rptr.3d 564], quoting and citing ABA Standing Com. on Legal Aid & Indigent Defendants, Gideon’s Broken Promise: America’s Continuing Quest for Equal Justice (Dec. 2004) p. 38, emphasis omitted [in opinion].)

The E.S. case is remarkable because it’s the first time of which I’m aware that a California appellate court clearly held that the Sixth Amendment is not satisfied by placing a mushroom in the chair next to a defendant and christening the mushroom an “attorney.”  (I’m not positive, but I think in Kings County, the rule is that, with one exception, the mushrooms must be moldy.)  The Court even cited Strickland v. Washington (1984) 466 U.S. 668, 686 [104 S.Ct. 2052, 80 L.Ed.2d 674] as if Strickland had teeth! Specifically, the Court said, “the right entitles the defendant not to some bare assistance but rather to effective assistance.” (emphasis in original).

As if that were not shocking enough, E.S.’s conviction was reversed!  And the reason for the reversal was, essentially, the caseload of the Public Defender who handled the case.  As the Court noted,

Under the Penal Code, a public defender may not be assigned to represent an indigent defendant in a case in which he or she has a conflict of interest [citation] and a conflict of interest is inevitably created when a public defender is compelled by his or her excessive caseload to choose between the rights of the various indigent defendants he or she is representing. [Citation.]  (In re E.S., supra, 171 Cal.App.4th at 1246 (citations omitted).)

Wow!  Let’s see that again!

[A] conflict of interest is inevitably created when a public defender is compelled by his or her excessive caseload to choose between the rights of the various indigent defendants he or she is representing. [Citation.]  (In re E.S., supra, 171 Cal.App.4th at 1246 (citation omitted; emphasis added).)

Now before you Public Defenders jump down my throat, I have long explained to potential clients that there is nothing wrong with having a Public Defender.  In fact, I’ve gone farther.  I’ve told potential clients that, on average, Public Defenders are better attorneys than private attorneys.  No small part of the reason for that is because Public Defenders work under conditions that give them way more experience “lawyering” in six months than most attorneys get in years.

The problem is, no matter how good an attorney is, there’s a limit to how many simultaneous cases he or she can juggle.  Eventually you reach the point of (rapidly) diminishing returns.  Public Defenders loaded up with more cases in a month than most private attorneys will handle in a year will eventually have so much to do that they simply cannot do it.  Not well, anyway.  The result is that “the constitutional right to the effective assistance of counsel [is] reduced to form without substance.”  (In re E.S., supra, 171 Cal.App.4th at 1248, quoting People v. Ledesma (1987) 43 Cal.3d 171, 217 [233 Cal.Rptr. 404, 729 P.2d 839].)

If rumors I’ve heard the last week are true, the Fresno County Public Defenders’ Office, which in the six months prior to January 2009 lost six percent of its workforce due to budget cuts, is about to lose even more.  One rumor says Public Defenders have been told that ten attorneys — approximately one-eighth of the current number listed on their website — are going to be laid off.  Another rumor mentions seriously significant budget cuts — on top of cuts already made when money was transferred from funding a right deemed “essential to a fair trial” so that even more people could be arrested!

Things are already bad enough without this.  Friends tell me that last week, in one courtroom, a judge was on the phone begging (okay, the actual word used was “yelling”) for Public Defenders so the calendar could move, while District Attorneys — prosecutors! — were filling out “Change of Plea” forms for accused people!  (For those who don’t know, this involves explaining statutory and constitutional rights to the accused person, asking them to give up those rights and getting them to sign, under penalty of perjury, stating that they understood their rights and voluntarily gave them up so they could plead guilty.)

This is not how justice is administered.  Arresting more people, but providing fewer with the resources to defend themselves, or even to understand what is happening to them, is a recipe for injustice.

As I noted the other day, ours is meant to be an adversarial system.  We believe that the Truth of the case comes out by having competent attorneys “testing” one another’s theories of a case in front of a jury of fair-minded and impartial persons.

But with the proposed budget cuts, particularly when funding is shifted to police agencies, instead of the crucible of adversarial testing, you get the mosh pit of non-adversarial convictions.

On the other hand, maybe that’s part of a master plan for improving District Attorney Beth Egan’s abysmal conviction rate.

A theory can be proved by experiment; but no path leads from experiment to the birth of a theory.

Experiments help us find the answers to problems.  Experiments help us find the Truth, or the closest thing to it.  Without experiments, the world so many of us take for granted today would not exist.

But what does this mean?  What is an experiment?  And why am I, an attorney, writing about it on a legal blog?

Defining Our Terms

Before getting to the “why,” let’s talk a little more about the “what.”

Science is made up of two basic activities: theory and experiment.  Theories try to say how the world is; experiments verify theories, and the subsequent technology can change the world. … From the time of the Scientific Revolution a sort of collective methodology has given free rein to three basic human interests: speculation, calculation, and experimentation.  (Paolo Rossi and Cynthia de Nardi Ipsen, The Birth of Modern Science (2001) Wiley-Blackwell, p. 183.)

Webster’s Third New International Dictionary (2002) defines “theory” variously as “a belief…a judgment, conception, proposition…formed by speculation or deduction or by abstraction and generalization from facts.”  A theory is “a working hypothesis.”  And a “hypothesis” is “a proposition tentatively assumed in order to draw out its logical or empirical consequences and so test its accord with facts that are known or may be determined.”

In short, a hypothesis is a guess and a theory is something not yet proven.

Theories come in varying strengths; that is, although a theory is always “theoretically” capable of being disproved, some theories are based on (or explain, or make sense of) so much evidence as to be considered true and only nutcases or fringe elements doubt them, while others are, as the definition suggests, “formed by speculation” so outrageous that only nutcases or fringe elements believe them.

How do we decide if a theory is believable, or doubtful?  The answer is with experiment, defined by Webster’s as “a test or trial…the process or practice of trying or testing.”

And now we arrive at Law.  The American legal system is “adversarial.”  Our “experiments” are performed in courtrooms, in front of witnesses.  (By that, I actually mean the jury and the public; not the witnesses who testify.)  The courts are where we test our hypotheses and theories concerning cases.

This system is premised on the well-tested principle that truth — as well as fairness — is ‘best discovered by powerful statements on both sides of the question.’”  (Commonwealth v. Rahim (Dock. #SJC-09031 Suffolk Co. Mass 2003) not paginated.)

Or, as the United States Supreme Court put it in 1975:

The very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free. In a criminal trial, which is in the end basically a factfinding process, no aspect of such advocacy could be more important than the opportunity finally to marshal the evidence for each side before submission of the case to judgment.  (Herring v. New York (1975) 422 U.S. 853, 862 [95 S.Ct. 2550, 45 L.Ed.2d 593].)

So far so good.  But why did I feel the need to start this article by talking about scientific theories and experiments?  How does that relate to the practice of law and the administration of justice?

The Search for Truth

The answer is partly that the development of the modern legal system and modern science grew out of the same primordial soup.  Descartes, Bacon, Hume and a whole host of other philosophers were all concerned with developing a foundation and procedures for the ascertainment of Truth (with a capital “T”).

And Truth is exactly what we seek — or at least it is what we should seek — before making monumental decisions affecting the lives of other people. Because in Science the development of hypotheses, experimentation and the pursuit of theories may lead to the creation of new gadgets, greater production of food and, in short, may add to the lives of many; but in Law (at least the Criminal Law with which I’m concerned), we are taking away.

A person charged with a crime often loses their liberty, at least for a period of time.  The more serious the crime, the larger the portion of their life is lost.  In the most serious crimes, we may actually take away the remainder of a person’s life, by life imprisonment or even by killing them.

When we’re going to take away from someone’s life, we should be sure that we are not taking away from the life of an innocent person.

Until we complete a trial — and unfortunately, because we don’t always follow the foundational principles of our legal system, sometimes even after we complete a trial — we can’t really have confidence in this.  Sure, some people will feel confident that the right person was suspected, investigated, arrested, charged and convicted even without a trial that comports with our well-thought-out, historically-based and time-tested principles.  But then, some people believe you can tell the future by reading palms, consulting the Zodiac, or sacrificing chickens.

Several hundred years of experimentation have taught us that our system requires more.

The Hypothesis Shall Not Set You Free

There is a close tie between the ascertainment of Truth in Science and Law — when a crime has been committed, the police do a little bit of looking around.  At some point — usually fairly quickly — they come up with a hypothesis as to what happened and who is responsible.  They pass this information along to the District Attorney’s office.  Someone there looks at it and decides if the hypothesis seems reasonable.  If it does — and, sadly, sometimes even if it doesn’t — charges are filed.  Perhaps a deeper look is taken; a more-targeted investigation uncovers additional evidence to support the hypothesis.

Somewhere in this process, the hypothesis develops into a theory.  The prosecution prepares for trial where the hypothesis, they hope, will be proved.

But because we’ve had hundreds of years of experimenting with the best way to ascertain the Truth, we’ve come to understand that the adoption of a theory is a complicated and tricky thing.  Way back when we’re coming up with hypotheses, the process begins to develop problems.  Ever heard the saying, “When the only tool you have is a hammer, everything begins to look like a nail?”  The same concept applies in developing hypotheses and theories.  The police find a suspect.  They develop a hypothesis.  As it grows into a theory, the search for evidence to support the theory almost always turns into a search for evidence to support the original hypothesis.

We know that pursuing one particular theory can make it hard to find the Truth.  (Max Planck once remarked that “a new scientific truth does not triumph by convincing its opponents and making them see the light, but rather because its opponents eventually die, and a new generation grows up that is familiar with it.” (Thomas Kuhn, The Structure of Scientific Revolutions (1964) University of Chicago Press, p. 151.))  Pursuit of the Ptolemaic theory that the Universe rotated around the Earth lead to an incredibly complicated astronomical theory between the second through the sixteenth century.  Eventually, beginning about the sixteenth century, when the observations (evidence) became too difficult to fit into the theory, the Copernican Revolution — part of the Scientific Revolution — began to take over.

The desire to maintain belief in the original Ptolemaic theory was so strong (especially among Christians) that some people were put to death, burned at the stake.  Challenging treasured theories isn’t easy.  Arriving at the Truth sometimes comes at a heavy cost.

Ours is Meant to be an Adversarial System

What we should have learned by now — what our legal system purports to believe — is that the best way to find out the Truth is to have some people explore one theory and some people explore another.  Then we compare the theories to see which seems to better fit the facts, or evidence.

This is the best way to find the Truth in Science; it is the best way to find the Truth in Law.

Someone cue the defense attorney.

[T]he adversarial process protected by the Sixth Amendment requires that the accused have counsel acting in the role of an advocate. The right to the effective assistance of counsel is thus the right of the accused to require the prosecution’s case to survive the crucible of meaningful adversarial testing.  (United States v. Cronic (1984) 466 U.S. 648, 656 [104 S.Ct. 2039, 80 L.Ed.2d 657] (internal citations and internal quotations removed).)

I hear — often enough that I decided to write this article — people asking why I would want to be a defense attorney.  The reason is found in the second phrase of Einstein’s quote with which I started this article.

[N]o path leads from experiment to the birth of a theory.

By the time we get to the level of the experiment, we’re already working off of a particular hypothesis; we already have “a working theory.”  But it’s too easy for us to forget that if what we really seek is the Truth, then trying to disprove a theory is as important as trying to prove it.

And so our criminal justice system, which purportedly aims at finding the Truth, is based on an interesting idea:  Why not assign someone the job of trying to disprove the theory?

The Constitution of the United States, where it addresses criminal prosecutions, was meant to implement this idea.  Our Founders believed in it even more strongly we do.  As the United States Supreme Court noted in 1984:

When a true adversarial criminal trial has been conducted — even if defense counsel may have made demonstrable errors — the kind of testing envisioned by the Sixth Amendment has occurred.  (United States v. Cronic, supra, 466 U.S. at 656.)

Without good defense attorneys (and courts even-handedly enforcing the Law!), however, this cannot happen.  Instead, our trials become show trials, shams, kangaroo courts.

[I]f the process loses its character as a confrontation between adversaries, the constitutional guarantee is violated.  As Judge Wyzanski has written: “While a criminal trial is not a game in which the participants are expected to enter the ring with a near match in skills, neither is it a sacrifice of unarmed prisoners to gladiators.”  (United States v. Cronic, supra, 466 U.S. at 656.)

Why I Do What I Do

The reason I do what I do and the reason we need good defense attorneys is to ensure that we sacrifice neither the Truth, nor unarmed prisoners, to the State’s trained gladiators.

My hope is not that I “help put murderers and rapists back out on the streets,” but that because I do what I do — in the words of Chief Judge Irving R. Kaufman of the United States Court of Appeals for the Second Circuit — “justice will emerge from the forensic duel in the courtroom.”  (Irving R. Kaufman, “Does the Judge Have a Right to Qualified Counsel?” (May 1975) 61 A.B.A. J. 569, vol. 61, p. 570.  [How ironic that Judge Kaufman's main claim to fame is the unjust sentencing of Julius and Ethel Rosenberg to death.])

Final Note

Not infrequently, people reading my articles, or talking to me, get the impression that I “hate” police officers, district attorneys and anyone who tries to take criminals off the streets.  This is not true.  I dislike dishonest officers and prosecutors who lie, distort the Truth, or hide evidence that would help arrive at the Truth, in order to convict my clients.  I don’t hate — or even dislike —the honest police officers and decent prosecutors who serve as necessary a purpose to the system as do I.

I believe in the adversarial system.  And remember that I said that the adversarial system requires able adversaries on both sides, pursuing different theories, and opposing one another.  But being “adversarial” does not require hating the other.  It doesn’t require underhandedness.  It doesn’t require refusing to turn over evidence as required by law.  It doesn’t even necessarily mean not cooperating with the other, when cooperation is appropriate.  (Fleshing this out will have to be left for another article.)

Ideally, I strive to meet Shakespeare’s description as presented in The Taming of the Shrew:

And do as adversaries do in law,
Strive mightily, but eat and drink as friends.

My job, our system of Justice, and the quest for the Truth in criminal cases requires me to be the best and most determined adversary I can be.  It doesn’t require me to “hate” anyone.

The reality is that a number of people are going to feel that they are unimpaired and will get behind the wheel after having imbibed.

These drivers may even be right about being unimpaired: the National Highway Traffic Safety Administration (NHTSA), a branch of the U.S. Department of Transportation, notes that “virtually all drivers are substantially impaired at 0.08 BAC [blood-alcohol concentration].”  (NHTSA State Legislative Fact Sheet 1996.) Not only does this leave some wiggle room even for people at the 0.08% BAC level, the fact remains that people below that level may not be so unimpaired as to be unable to legally drive.

This article is not meant to encourage you to drive when you have been drinking!  The best way to avoid a DUI (driving under the influence) arrest is not to get behind the wheel after you’ve consumed alcohol.

But simply saying, “The safest course is not to drink, then drive” somewhat begs the question.  Clearly even the insanely-MADD members of society cannot expect that anyone who consumes alcohol will never again get behind the wheel of a car.  Sooner or later, the effect of alcohol wears off.

This post, then, is written to assist those people who, in good faith, believe they are within their legal rights to drive and want to avoid a drunk driving arrest.

Make Sure Your Car’s Registration Is Current

The first and easiest thing to do to avoid being stopped while driving after drinking (and I promise this is the last time I’m saying this here: I did not say “drunk driving”; I am not intending to encourage drinking and driving) is to make sure that your registration is current.  A number of people who I see accused of drunk driving were originally stopped because a bored patrol officer — or perhaps one patrolling near a bar and looking for excuses to stop people — noticed an expired registration tag.

If you’re driving after drinking and your registration tag has expired, you’re tempting fate.  Don’t do it.

Obey All Traffic Laws

The second thing to remember — and perhaps the most common reason people get stopped and then arrested for a DUI — is to obey all traffic laws.  Don’t speed.  (Don’t drive too slow, either!  Officers sometimes stop people for going below the speed limit.)  Don’t make any turns without signaling; don’t even change lanes without signaling.  Remember that making u-turns in some areas (such as a business district or a marked “no u-turns” area) is illegal.

Make Sure Your Car Meets All Legal Requirements To Be On The Road

My personal feeling is that there are too many police officers on the roads.  This particular tip sort of proves the point.  On more than one occasion, I’ve seen a DUI arrest that started with someone who did not have a front license plate.  Ever get stopped by an officer and sit there as he walks to the front of your car?  He’s checking for the front plate.  If his stop was a “bad stop,” but your front plate is missing, he’ll testi-lie that he noticed that on a foggy, pitch-dark night as he approached you from behind.

Similarly, if your windows are tinted, the officer may testi-lie that he thought maybe they were tinted more than the law allows.  Or maybe your rear turn signal, or brake lights, weren’t working.  Perhaps one of the bulbs was out on your rear license plate.

The point is, if you’ve had a drink before getting behind the wheel, it will be even more important that you know every aspect of your car is in working order and doesn’t violate any legal codes.  If you are stopped by a police officer “just because,” you might win your DUI case based on the stop being unconstitutional.  But if the officer can point out a problem like a burned out headlight or some other defect with your car, the stop will almost certainly be ruled constitutionally-okay, even though the officer couldn’t have known about the defect at the time he made the stop.  (This should not be true, but it often is.)

Don’t Tell the Officer You’ve Been Drinking!

It amazes me the number of people who tell a police officer they’ve been drinking.  Doesn’t anyone watch television?  You have a right to remain silent.  Use it!

You don’t want to lie about it.  Leave lying to the police officers.  But just because you’re not going to lie doesn’t mean you have to answer the question.  While your refusal to answer might make you look suspicious, you don’t have to answer.  My fondest wish is for someone to be mistakenly arrested for DUI, but then have the officer arrest that person for refusing to answer the question.  Seems to me that case would be fun to litigate! And if your case goes to trial, telling the officer you had “one drink” right before he arrested you isn’t going to help.

Don’t Take the Coordination Tests

Once you get stopped, if you’ve had even one recent drink, the officer is almost certainly going to claim he smells alcohol on your breath.  He might say this even if he doesn’t smell alcohol on your breath.  Remember, the officer is allowed to lie to you — and, unofficially, he’s also allowed to lie to the court.

Alcohol itself doesn’t actually even have an odor; the odor comes from whatever drink contained alcohol.  Some non-alcoholic drinks, therefore, could “smell like” alcohol to an officer who will stink up his report by saying he smelled the “odor of alcohol on the suspect’s breath.”

Once he has a hunch you’ve been drinking, the officer is going to ask you to take “field sobriety tests,” also known as FSTs.  “Field Sobriety Tests” is a fancy phrase for “coordination tests”; it just sounds more scientific, so it helps convince juries that the officer has “proof” that you were drinking.  Of course, you were already taking a coordination test before you were stopped: you were driving your car, which requires various types of coordination.  Why give the officer more?

Besides, you’ll almost certainly fail.

“We have no idea how well a sober person can perform on the SFST [field tests]. How does age or gender affect performance? How does fatigue or practice affect performance?” [Spurgeon Cole, a forensic scientist and consultant in Georgia] has written. “Without answers to these basic questions, the SFST remain in the same category as tarot cards.”

Cole did his own study, administering the tests to 21 of his students at Clemson University in South Carolina — none of whom had had a drop of alcohol — and then showing the videotape of their performance to a group of officers. They [sic] officers reported they’d arrest nearly half the students.

“And these people had absolutely zero to drink,” Cole said in an interview. “These tests are absolutely worthless.”  (Brigid Schulte, “DUI Hokeypokey: Police, Lawyers And Scientists Engage in a Clumsy Dance Over the Merits Of Roadside Sobriety Tests” (November 15, 2001) The Washington Post.)

Many people think that they must take the coordination tests.  This is not true.  California has no law (yet) that says you must take the test.  When the officer asks if you’ll take the tests, “Just Say No.”  Without the “test results,” it will be that much harder for the officer to testify he had probable cause to belief you were drinking and driving.

Important Note: California law does not (yet) require that you take the “Field Sobriety Tests.”  However, California law does require you to submit to either a breath or blood test for alcohol, once you have been arrested.  The officer will read you an admonition telling you this.  Refusal to take the breath or blood test (or urine, if neither of the others is available) can increase the penalties if you are convicted of DUI.

The Best Way To Avoid a DUI Arrest Is Not To Drive After Drinking

As I noted above, I’m not encouraging you, or anyone else, to drink and drive.  The best way to avoid a DUI arrest is not to drink and drive.  If you’re unsure whether you’re safe to drive, consider waiting awhile longer before driving.

Remember: the life you save may be your own.

What If You Are Arrested?

So you’ve done everything I suggested and got arrested anyway. Or you were arrested before you read this article. Now what?

I am a criminal defense and DUI attorney practicing primarily in the Fresno, Kings, Tulare and Madera counties. See the article I wrote titled “Last Night I Was Arrested For Drunk Driving” on my regional blog.