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.”

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.

There’s a common thread here.

How Bad Things Get Done by Good People

In the case of the woman above, friends who knew us asked, after the eight-year relationship ended, how I could stay with “such a horrible person” so long and why I didn’t leave sooner.  The answer is that she wasn’t a horrible person.  As I explained to my friends, it wasn’t her: it was the dynamic of our relationship.  Over time — who really knows why? — she developed a habit of feeling and acting a certain way towards me.  You might think I did something to earn this, that I deserved it, but I’m pretty sure I did not.  I was a pretty great guy myself, or so people who knew me said.

My high school friend committed the act of vandalism while with a group of others — some of them may have been great guys, too, but I didn’t know them enough to say — and later was ashamed of his own behavior.

You may not think the deputy district attorneys fit what I’m describing here. And if I were only talking about the temporary insanity that goes along with group-think, I’d probably agree.  Yet the attitudes and opinions of the DDAs are reinforced by the offices in which they work and the people with whom they spend a lot of time.

Theirs is an institutionalized and fossilized group-think; backed by policy.  (Their actions and attitudes are also informed by other phenomena: oversimplification and hasty generalization.  That, however, is a topic for another article.)  As with other examples of group-think, what happens depends on the specific characteristics of the group.  There is no doubt that the mileau of the Fresno District Attorney’s office differs quite a bit from that of the Dallas County District Attorney’s.¹

And as Judge Katherine Lucero, a supervising judge of the Santa Clara County Juvenile Dependency Court can tell you, who is in charge can make a big difference in the approach a particular group of prosecuting attorneys take towards the public they purportedly serve.

Treating Clients & DDAs as Individuals

My constant fight with individual members of the DA’s office is to remind them that each of my clients are unique, that each of my clients is an individual.  Institutionalized group-think makes that a challenge.

The job of a DDA is not to obtain convictions, but to seek justice.²  While the law attempts to ensure some predictability and evenhandedness to the dispensation of justice, the fact is that real justice requires an individual assessment of each offender.  It’s in vogue these days to treat all accused persons as criminals equally worthy of disdain, contempt and a lack of respect for them as human beings and to keep that attitude in mind when deciding whether or not to plea bargain.  Part of my job is to counteract this tendency.

Ironically, the reason this doesn’t always work is because the DA’s office doesn’t just fail to treat accused persons as individuals: it fails to treat its own DDAs as individuals. If the stories some DDAs tell are true, many of them are not allowed to do what their own investigation and understanding of the case tells them they should do. They’re not allowed to act upon the case “in the interest of justice.” Whether the case should have been filed, or not — and in more than a few cases, it flat out should not have been filed at all — it’s the conviction rate that counts. In the California Rules of Court, Rule 4.112(a) actually requires that,

1. All trial counsel must appear and be prepared to discuss the case and determine whether the case can be disposed of without trial;
2. The prosecuting attorney must have authority to dispose of the case….

Yet Fresno County District Attorney Elizabeth Egan appears incapable of recognizing that appropriate dismissals or “deals” demonstrate that her office makes sound evaluations and realizes that some cases, in the interest of justice, should be dismissed. Instead, she appears to believe that dismissing or making a more fair disposition under the individual circumstances is tantamount to being “soft on crime.”^3,4

The Detrimental Effect of Group-Think on Justice

From conversations with DDAs, I think this reticence about allowing prosecuting DDAs to plea bargain comes from a misplaced assumption that proper consideration was given to the case prior to filing the charges. Yet prior to the involvement of a defense attorney, the DA’s office, supplied with the one side of the story presented by law enforcement and any alleged victims, may not have had all the information to make an appropriate judgment. That, after all, is why our system presumes people to be innocent until proven guilty. And it is why our Constitution and sometimes our courts require the prosecution’s case to “survive the crucible of meaningful adversarial testing.”⁵

It is not uncommon to try to settle a case with a DDA who cannot make the determination as to a possible disposition without first taking it back to their supervisor.  Not only does this result in a delay in the disposition of the case (and, incidentally, increased cost to public and private resources not limited to potentially unnecessarily prolonged contribution by the client to jail overcrowding), it is contrary to the rules of court.  It sometimes results in rejection of a defense offer of settlement by someone who might not have the necessary input from defense counsel that could cause the supervising DA to recognize the defense offer has merit.

Institutionalized Group-Think Hurts Everyone, Not Just Those Accused of Committing Crimes

The institutionalization of group-think has a significant negative impact on our justice system.  First, the District Attorney’s office is afraid to do its job as required by Justice and the Constitution because of public attitudes which do not differentiate among individual crimes or criminals.  This societal group-think leads to the District Attorney’s fear of appearing soft on crime if they treat accused persons as individuals and take into account information supplied by the defense to arrive at a more fair disposition. This societal failure to discriminate — shared by some DAs and DDAs — combines with a policy that ignores the California Rules of Court by denying individual DDAs to negotiate settlements on an individualized basis.

In the end, we all lose. Not only is justice delayed justice denied, but “justice” applied without recognition of individual differences amongst accused persons can result in longer incarceration periods than necessary in many circumstances. The increased burden on already-overpopulated jails and prisons impairs our ability to fund other needed services, while simultaneously inviting the federal government to put California prisons into receivership.

It would help if District Attorney Elizabeth Egan and other higher-level supervisors within her department would remember their duty to justice, rather than being concerned about special interest groups who might make a fuss at election time.

Ms. Egan’s job is not to obtain convictions, but to seek justice. (People v. Fuller (1982) 136 Cal.App.3d 403, 424 [186 Cal.Rptr. 283]["prosecutor represents the state and has a high duty, actually and in appearance, to seek justice, not merely convictions"].)

1. With respect to Egan’s excuses, the real reason Fresno’s conviction rate is so low has less to do with money than with the fact that the department overcharges those who do commit crimes and wastes resources by charging people who should not be charged at all. The prevailing theory is that to maintain her “tough on crime” image, Egan prefers to charge even weak and unlikely cases. “Let the jury sort it out,” she says. She gets to look tough, but what about the innocent people who, unable to make bail, sit in jail until their case meanders its way through the court to the jury? As for the “more money” issue, in Summer 2007, she added 15 prosecutors to her office; the Public Defender added about two-thirds as many attorneys. If this page and this page — both maintained by the County of Fresno — are correct, there are now more than 300 people in the DA’s office and 132 work for the Public Defender in Fresno County.
2. People v. Fuller (1982) 136 Cal.App.3d 403, 424 [186 Cal.Rptr. 283]["prosecutor represents the state and has a high duty, actually and in appearance, to seek justice, not merely convictions"].
3. And yes, I speak of the evil “plea bargain” without which our system would collapse from its own weight.
4. In fairness to Ms. Egan, this attitude is not limited to her office and is actually driven by a more widespread societal group-think. On the other hand, that’s why we have people whose job it is to know certain things and act upon that knowledge; because uninformed mob rule is a bad thing.
5. People v. Dunkle (2005) 36 Cal. 4th 861, 930 [32 Cal.Rptr.3d 23].

The worst thing you can have is power and lack of knowledge. — psychologist Habsi Kaba.

Last Friday, I was privileged to attend the (Juvenile) Behavioral Health Court Quarterly Meeting in my county.  I was a little surprised to learn that I was the only private practice criminal defense lawyer to take advantage of this opportunity, but that’s a story for another blog article, another time.  Believing this to be a better alternative for some of my juvenile clients than repeated episodes of pointless incarceration which merely exacerbates their conditions, I wanted to learn more about how the behavioral court worked.

One of the first, saddest, and most difficult things I learned of concerns the struggle the Behavioral Health Court has just to survive.

The United States, but California in particular, has a penchant for punishment — no matter the costs.  Yet we recoil from rehabilitation, despite the savings, because “it costs too much.”

“I don’t care.  Lock ‘em up and throw away the key,” say many of my friends.  I was quite disturbed recently to learn that even one of my friends in the Public Defender’s office feels this way.

And it’s difficult to find an appropriate response, because (so far) none of the people I’ve run into who hold these views base their opinions on anything connected with the real world, or even logic.  The attitudes are emotionally driven, or based upon unexamined assumptions.

This is particularly troubling when it comes to juveniles — children — who come into contact with law enforcement.  As the most recent data shows, that amounts to around 80,000 children per day. According to that same article, as many as 80 percent — eighty-percent! — of these children suffer from a recognizable mental health disorder, while others estimate the number anywhere between 65 to 70 percent with diagnosable disorders.  Twenty-five percent have disorders so severe as to impact their ability to function.

No matter how you slice it, that’s a lot of kids.

In most cases, because their mental illnesses are going undiagnosed, we’re essentially trying to get these kids to do what is physiologically impossible, and then punishing them when they fail to comply.  No small part of the problem is that many who should be helping these kids don’t understand the problem; they don’t see juvenile offender behavior as a mental health problem.

This is true, though, even for children who are not diagnosed with actual mental health issues.

“There’s been so much neurological research and outcome research into juveniles in the last 20 years that shows how powerful rehabilitation can be for a young person whose brain is still developing,” said Carol Chodroff, advocacy director of Human Rights Watch’s U.S. program in Washington, D.C. “People are starting to realize that it works, that it saves money and kids, and that’s why this bill is so important.” (Editorial, “Rehabilitating juvenile justice” (July 14, 2008) San Francisco Chronicle (online).)

The bottom line on that we need to remember the old cliche: “Our children are our future.”  All children. The costs of programs — like some kind of a “behavioral” court — to rehabilitate them, whether they are actually mentally ill or not, is significantly less than what we will spend otherwise, both monetarily and in terms of human suffering.