Why, then, do I “defend criminals”?

First off — this is that ugly idealism again raising its head — I don’t buy into the idea that I defend criminals.  Wh-? Huh?

“But you’re a criminal defense attorney!,” you shout.  (You do know I can’t actually hear you, by the way, don’t you?)

At any rate, yes, I’m a “criminal defense attorney.”  I didn’t pick the moniker.  It’s what we who defend people who have been accused of committing crimes are called.  So I don’t defend criminals; I defend people accused of committing crimes.

“Words.  Words.  Mere words,” you say.  I really can’t hear you.  I hope you know that.  I’m just assuming, based on conversations with actual people, that this is what you’re saying.

Increasingly, though, these are not “mere words.”  If they ever were.  Mere words would be things like “innocent unless proven guilty,” or “the burden of proof is on the prosecution.”  Reality is that, increasingly, innocent people actually do get arrested, charged with crimes, sometimes have trials, and too often go to jail.  Or prison. Or worse.

Estimates of the number of innocent people in prison vary. Justice Scalia — against all reason — estimates it to be “less than three-hundredths of a percent — 0.027 percent, to be exact.”

Me — but, remember, I’m an idealist — I think even 0.027 percent is an outrageous shame.  I’m not the world’s greatest mathematician (that’s one reason I became a lawyer), but with 7.3 million citizens in the U.S. prisons system in 2007,¹ I estimate that’s getting close to a couple-thousand innocent people whose lives have been stolen.  (For you, “Justice” Scalia, that’s 1,971.)

You want to be one of those people and tell me that’s not bad; mistakes happen; you can’t make an omelet without breaking a few eggs?

Besides, I think that number is clearly wrong. The number assumes that Scalia and the people upon whom he relied are correct about the percentage of innocents in prison.

The authors of Convicted But Innocent: Wrongful Conviction and Public Policy (1996) think a conservative estimate is closer to 0.5%, which based on calculations using 1990’s numbers yields around 10,000 innocent people wrongfully convicted.  And they believe the number is actually quite a bit higher.  And in 1990, there were half as many people in prison as there are today, so the actual number using their calculations today would be 20,000 innocents in America’s prisons.

The estimate discussed in Convicted But Innocent is based on asking judges and prosecutors what they think the number is.  Not exactly the most scientific method for making such determinations.  After all, judges and prosecutors tend to be biased in favor of believing that those convicted accused of a crime were guilty.  The authors themselves say that if more public defenders were asked, the number would be higher.

Also,

Samuel Gross, a University of Michigan law professor, has calculated that 2.3 percent of all prisoners sentenced to death between 1973 and 1989 have been exonerated and freed. His research suggests that the vast majority in fact did not commit the crimes and an unknown number of innocents have not yet been exonerated.²

Another study, based on death row inmates, shows that since 1977 five-hundred-and-fifty-three have been executed, while eighty were released from death row after being found innocent.

For every seven executed, one innocent person is freed — an “error rate” of more than twelve (12) percent. In the State of Illinois, 12 people have been executed since 1977 while 13 have been released after proving their innocence — an error rate of 52 percent.³

The Truth & Justice Foundation notes that estimates for wrongful convictions range all the way from a low of 3 to a high of 15%.

Whatever the number, it’s growing.

The length of sentences is growing, too.  In 2004,

One out of every 11 persons in the federal and state prison systems in the US [was] serving a life sentence, four times the number of “lifers” in 1984.⁴

Watson’s article is an eye-opening read.  Among other things, it notes that 60 percent of California’s “three strikes” cases involve non-violent offenses — property offenses, such as the theft of $153 of videotapes — resulting in sentences of 25 years to life.  Then there are the victims of domestic abuse, those who finally snap and kill the men who repeatedly beat them: they get beaten a lot less now that as many as 2,000 of them are serving life sentences.

Let’s not even consider that our “tough on crime” stance has us shutting down mental health facilities, then incarcerating most mentally-ill individuals such that — again going off Watson’s 2004 numbers — one in every five lifers and one in every six “general population” prisoners are mentally ill.

Meanwhile, the conservative Cato Institute reports:

The amount of money that American taxpayers spend on prisons has never been greater, and the fraction of the American population held in prison has tripled during the last 15 years, as has national prison capacity. Yet the expected punishment of violent criminals has declined, and violent crime flourishes at intolerably high levels. The seeming paradox of more prisons and less punishment for violent criminals, which means less public safety, is explained by the war on drugs. That war has gravely undermined the ability of America’s penal institutions to protect the public. As prisons are filled beyond capacity with nonviolent “drug criminals” (many of them first offenders), violent repeat offenders are pushed out the prison doors early, or never imprisoned in the first place.⁵

Alright.  Alright.  Let me stop beating the dead horse.  We have large numbers of innocent people in our prisons.  I blame our society’s increasing tendency to favor “victim’s rights” over the necessary goal of our justice system — the determination of whether an accused person is guilty, or not guilty.  But I’ll set that observation aside for another day.

We have innocent people in prison.  What shall we do if and when we find them?

Well, it depends.

According to the 9th Circuit Court of Appeals, if we find them in time — that is, before the artificial boundary created by Congress in 1996, which undid a couple hundred years (at least) of precedent — maybe they can go free.

But if they missed the boundary?  If — although they are actually innocent of the crime for which they were convicted – they are unable to prove their innocence until after the time limit for an appeal or writ has passed?

Well, fuck ‘em. Let ‘em rot in prison.

At least, that’s what the 9th Circuit Court of Appeal — allegedly the most liberal of circuits in the United States — has to say.

And that, my friend, is nothing short of criminal.

1. The prisons system includes people in prison, jail, probation and parole.
2. Sheldon Archer, “There are Thousands of Innocent People in American Prisons” (29 June 2010) ArticleBlast, available at http://www.articleblast.com/Laws_and_Legal/Criminal_Law/There_are_Thousands_of_Innocent_People_in_American_Prisons/.
3. Roger Roots, “How Often Does The Criminal Justice System Get It Wrong?” (February 5, 2001) available at http://www.caught.net/innoc.htm.
4. Debra Watson, “Huge rise in prisoners serving life sentence in the US” (26 May 2004) International Committee of the Fourth International.
5. David B. Kopel, “Prison Blues: How America’s Foolish Sentencing Policies Endanger Public Safety” (May 17, 1994) Cato Institute.

Most people, however, upon hearing this think, “Ahhh…those damn defense attorneys.  Always coddling criminals.” The truth is that we don’t coddle criminals.  Granted, we usually — though not always — end up defending criminals.  After all, the police don’t get it wrong every time.  (But potential jurors should keep in mind, please, that until you’ve heard all the evidence, you don’t know which of my clients are criminals and which are innocent, though accused.)

However, you’ll find that most — and by “most” I mean “nearly all” — criminal defense attorneys dislike the idea of lawlessness and people getting away with committing crimes just as much as anyone else.  Contrary to what appears to be popular belief, we don’t want to see anyone raped — child, woman, or man — and we don’t want to see anyone killed, robbed, left the victim of domestic violence, or suffering in any other way from an unlawful act.

At the same time, though, there is something we fear at least as much; maybe more.  And that is this. The story is from 2006, but I recently saw it on Jonathan Turley’s Res Ipsa Loquitur blog. I considered whether to use it to make my point, because of its age; I was concerned that some might call it an aberration.

Although the vast majority of people targeted illegally by the police are non-whites, New York’s infamous “stop-and-frisk” policy has resulted in 287,218 white people enjoying the NYPD’s unjustified and humiliating attention.  Let’s be clear about something:  I am not saying it is of no concern that 2,511,243 non-white people were also stopped.  But too often it seems that unless white people suffer the indignities I describe below, it doesn’t matter.  Complaints from me and other defense attorneys, as I noted above, are deemed to be (at best) hyperbole.

Ultimately, I’m trying to warn you — yes, you, “dear reader” — that the problem is growing.  It’s not just “bad guys.”  It’s not just “those people.”  As the numbers from New York and the story below indicate, it can happen to you.

The link that caught my attention and caused me to write this post goes to a story about a couple of people who visited Baltimore City for a ballgame.

According to the story, the couple came from out of town and they became lost after leaving the ballpark to go home.  Their concerns melted away when they spotted what they thought was a police officer, one “Natalie Preston.”  After all, to this couple, both of whose parents are police officers, trusted the police.  They knew the police to be “the good guys,” ever ready to fulfill their roles as public servants and to assist citizens.

So you can imagine their shock when, upon pulling up to Natalie Preston to ask directions, they were confronted by a hostile individual who told them they’d just run a stop sign.  After receiving the ticket, the Natalie Preston’s response to their request for directions was met with a rebuke:

You found your own way in here, you can find your own way out. ²

Apparently the penalty for running stop signs in Baltimore City is the navigational equivalent of “no soup for you!”

The couple flagged down another person they believed to be an officer to ask for help.  But the Natalie Preston would have none of that — she inserted herself between the officer and the couple, telling them that since she had just refused to give them directions, the officer was not going “to step in front of me and tell you directions if I’m not.”

Did I mention what a friendly place Baltimore City is?

Stunned, Joshua Kelly moved them away from Natalie Preston and the officer, driving 40 feet forward.  There they parked and called Brook’s father — a police officer (remember?) — to get directions.  While they were talking to him, Natalie Preston, who had given them the ticket, and made sure they couldn’t get directions from an officer in Baltimore City, approached, ordered Joshua Kelly (the husband) out of the car, told him to put his hands behind his back, cuffed him and arrested him for “trespassing.”

Apparently, when Natalie Preston says you’re not getting directions, she means from anyone.  Anywhere.  In the world.

“By this time, I was completely in tears,” Brook said. “I said, ‘Ma’am, you know, we just need your help. We are not trying to cause you any trouble. I’m not leaving him here.’ What she did was walk over to my side of the car and said, ‘Ok, we are taking you downtown, too.’” ³

The couple’s car was left unlocked with windows down in the impound lot.  Several items were later discovered to be “missing.”

After eight hours of sleeping on a concrete floor next to a toilet, Joshua Kelly and Llara Brook were released without any charges being filed.

You just gotta love Baltimore City.  Or, at least, Natalie Preston.

But my point is actually larger than Natalie Preston, or even Baltimore City.

I started this article talking about the things criminal defense attorneys complain about.  And most of the time — and by “most” I mean “almost always” — people don’t want to hear our complaints.  After all, as I said, we defend criminals.

And we don’t live in a police state, because in police states, people get stopped all the time for no reason and they have to show papers before being allowed to move on.  That sort of thing doesn’t happen here in the United States.

Maybe in Arizona, but not in the United States.

But Arizona doesn’t count, anyway, because it’s just brown people getting stopped.

Okay.  Okay.  I’m frustrated.  I try to explain to people that police states don’t happen overnight. Even in Nazi Germany, things didn’t happen overnight.  Oh, and can we get one thing out of the way?  I’m not saying the United States is Nazi Germany! Not yet, anyway.  To my knowledge, no significant individual, or group, has suggested rounding up the disfavored in America, putting them into concentration camps, and killing them.  (Joe Arpaio’s disfavored, a.k.a. “prisoners,” don’t count, because even though he somewhat copies the concentration camp model, the deaths he causes are incidental and accidental.)

As I said in a prior article, “How Police States Are Born,”

First, there is the beginning of a gradual, even imperceptible, erosion of “the rule of law.” After all, if the rule of law remains in place, the police state — which is a major tool for “the rule of man” — cannot come into existence.  The erosion of the rule of law prepares the ground for the police state.  If I were to stick to the allusion I made above of pre-natalism, I’d say ”the erosion of the rule of law prepares the womb for the birth of a police state.”

Police states don’t happen in the blink of an eye.  It starts out with the police targeting those we — as a society — don’t concern ourselves with all that much.  The police get used to the unfettered exercise of arbitrary power, though, and the attitudes that allow them to treat those we don’t care about as not deserving of their respect begin a process of institutional accretion.  Soon, the gold shield (and gun) isn’t the only thing that separates “them” from “us.” “They” no longer see “us” as any different from the disfavored: we’re all “civilians.”

A variation on “First they came…” seems particularly apropos:

THEY CAME FIRST for the Criminals,
and I didn’t speak up because I wasn’t a Criminal.

THEN THEY CAME for the Low Lifes,
and I didn’t speak up because I wasn’t a Low Life.

THEN THEY CAME for the Hispanics,
and I didn’t speak up because I wasn’t a Hispanic.

THEN THEY CAME for me,
and by that time no one was left to speak up.

It doesn’t happen in the blink of an eye.

But it does happen.

By the way, the reason I referred to Natalie Preston by her name throughout this article is that she — like others who abuse their position — does not deserve the title of “Officer.”  The report submitted by Natalie Preston, surprisingly, gives a different version of the story of their encounter.

I know.  It’s hard to believe.

But there’s an interesting intersection — a small, weird, piece of agreement, if you will:

The police report of the circumstances indicates Preston told the couple she would arrest them for trespassing — on a public street lined with public housing units. ⁴

The couple — as I mentioned above — was released from custody without charges.  Joshua was later acquitted of running a stop sign.

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.”
2. “Couple Arrested For Asking For Directions” (May 17, 2006) WBAL-TV.
3. “Couple Arrested For Asking For Directions” (May 17, 2006) WBAL-TV.
4. “Police Report Refutes Lost Couple’s Story” (May 17, 2006) WBAL-TV.

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.

Has the Governor gone soft on crime?

Not infrequently, a case will come to trial which is, shall we say, “lacking in evidence or witnesses.”  When this happens, the prosecution has numerous other “tools” to assist them in making up for the missing evidence.

More often than not, the “tool” will be another prisoner.  A “jailhouse snitch.”

Jailhouse snitches are always, of course, acting out of the goodness of their hearts.  Their compassion for “victims” and their sense of duty and justice is so strong that you can’t help but wonder how they ended up in jail in the first place.  Their trustworthiness, gregariousness, charm, and suaveness are so apparent that every real criminal who comes near them is compelled to confess their darkest secrets.

So it is perhaps surprising for sane people to realize that,

In more than 15% of cases of wrongful conviction overturned by DNA testing, an informant or jailhouse snitch testified against the defendant. Often, statements from people with incentives to testify – particularly incentives that are not disclosed to the jury – are the central evidence in convicting an innocent person.  (“Understand the Causes: Informants/Snitches”, Innocence Project.)

Fortunately for California, Governor Schwarzenegger is a maverick who refuses to be counted among the sane.

Hotly debated legislation by state Sen. Gloria Romero (D-Los Angeles) to prohibit convictions based on the uncorroborated testimony of a jailhouse informant also fell by the wayside. Schwarzenegger explained his veto of SB 1589 by saying that the testimony of in-custody informants is rarely used and that current laws “provide adequate safeguards against its misuse.” (Nancy Vogel, “Schwarzenegger vetoes cosmetic surgery bill” (September 29, 2008) Los Angeles Times.)

Assuming the Governor is correct, this shows just how great the need for SB 1589 is.

Think about it.  According to the Governor, prosecutors seldom secure succor from such snitches.  If that’s true, then SB 1589 would not impact very many cases.  On the other hand, as noted, these “rare” cases result in a substantial number of false convictions.

Governor Schwarzenegger disingenuously states that,

[T]he evaluation of the credibliity of a witness has always been uniquely within the province of the jury.  This bill would usurp the juries’ function by fixing in statute a rule that all in-custody informants have lied before the fact.  (Governor Schwarzeneggar’s letter to the California State Senate vetoing SB 1589.)

That’s not what SB 1589 stated. The bill simply required that in order to obtain a conviction based on the testimony of in-custody informants, there must be corroboration.  A similar rule, which has existed for hundreds of years, “usurps the juries’ function” when it comes to uncorroborated confessions.  It’s called “corpus delicti.” The impetus for that rule, like SB 1589, came after several innocent people were convicted (and executed) for the murders of missing people who later turned out to be very much alive.  (David A. Moran, “In Defense of the Corpus Delicti Rule” (2003) Ohio State Law Journal, pp. 826-827.)

Sadly, we are speedily slipping back to those days.  The rights of the accused are most definitely not in vogue.  But isn’t it about time the pendulum swung back the other way a bit?  There have been 220 exonerations by DNA evidence since 1989.  A wrongly-convicted man in Dallas, Texas, recently became the twentieth person to be exonerated by DNA in that county since 2001.  That’s just one jurisdiction!  Unfortunately, not every case involves DNA. If you count exonerations by other means, there are 360 exonerations since the year 2000 in the United states; that’s 360 we know were innocent, but convicted!

Isn’t it time to return to some of the common sense safeguards our ancestors embraced?  Isn’t it time to stop being soft on those who work to falsely convict the innocent amongst us?  Making convictions easier means making it easier to convict innocent people.

It’s as simple — as easy — as that.

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…

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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