Probable Cause

Defense attorneys — and on rare occasions even prosecutors or judges — frequently bemoan the fact that those meant to enforce our laws do not always play fair.  We complain about things like police states. We complain about things like the loss of civil liberties, including the right to a fair trial. We complain about the gradual erosion of the United States Constitution and the fact that the so-called “parchment barriers”¹ therein contained against the abuses of the government which that document constituted are, these days, less strong even than that.

Most people, however, upon hearing this think, “Ahhh…those damn defense attorneys.  Always coddling criminals.” (more…)

1. James Madison, one of the Founders of the United States, once argued against a “Bill of Rights” because he felt it was a “parchment barrier” against abuses by a government.  Sometimes, I think that if he’d won out, we might be better off; Jefferson felt that “[t]he tree of liberty must be refreshed from time to time, with the blood of patriots and tyrants.”  Jefferson said this blood was liberty’s “natural manure” and said, “God forbid we should ever be twenty years without such a rebellion.” [↩]

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 is a legitimate exercise of his power. But I digress…

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