Doris Daudy, a woman of approximately 38 years old, was walking north on Maroa toward her home just north of the Tower District.  Her purse was slung over one shoulder, her arms wrapped around grocery bags.  She never minded the walk; it was just a few blocks.  And although there was an occasional purse-snatching in the area, she’d walked this route for years without problems and felt perfectly safe.

Sam cut across the lawn at the end of the block, hoping to save himself a few seconds, and accidentally ran smack into Doris, knocking her to the ground.  Her groceries flew out of the bag, which miraculously was not ripped, and her purse spilled open.

Sam immediately began apologizing.  “I’m so sorry, ma’am!  I’m so very sorry!,” he said as he helped Doris to her feet.  “It’s just that I’m late for work and if I don’t get there on time my boss is going to fire me for sure!”

Doris knew the gut-wrenching feeling that went with not being able to make the bills because she or her husband were temporarily unemployed.  And she wasn’t really hurt.  She assured Sam that everything was fine as she started to collect her groceries and put them back into the back.  For his part, Sam was scrambling to help pick up her things, frantically stuffing spilled items back into her purse and worrying about how much later he was going to be now.  But he couldn’t run off without making sure she was okay.

Sam handed Doris her purse, continuing to apologize and brushing some leaves off Doris’s shoulder.

“Go on,” Doris said.  “I’m fine.  Really.  You don’t want to lose your job.”

Until a while after Doris got home, neither Sam nor Doris realized that when her purse spilled open, her wallet fell into the storm drain.

When Doris realized her wallet was missing, she didn’t really believe Sam had taken it.  She didn’t know Sam, but he had seemed so apologetic and nice.  But her husband insisted that she call the police.

“What else could have happened to it?,” he asked.

                                        * * * * *

Officer Steve “Stumper” Stevens was familiar with many people in the Tower District.  After getting Doris’s story and a description, he immediately knew who Sam was and went to his workplace to question him about “the assault on Doris and the theft of her wallet.”  Of course, he didn’t actually use these words with Sam.  Officer Stevens was smarter than that.

Officer Stevens asked Sam if he knew Doris.  Sam and Doris had not exchanged names and Sam didn’t know her, so he immediately confirmed Officer Stevens’ suspicions when he denied knowing Doris.

“Do you recall knocking a woman down earlier near Maroa and Floradora?,” Stevens asked.

“Oh.  Oh, uhm, that.”  Sam was caught off-guard.  Why would a police officer come to talk to him about accidentally knocking someone down?  The woman had assured him she was alright.  He made sure of it before he left her!  “Yes,” Sam said.

“And did you have her purse?,” Stevens asked.

“Well, uh, yes.  I helped pick everything up and gave it back to her.”

“What happened to the wallet?” Stevens asked.

“The wallet?”

“Yes, the wallet.  Did you give her back her wallet?”

“Uh…I…well…I must have.  I just picked everything up, put it in the purse and gave it back to her.  I was trying to help!”  Sam was nervous.  Officer Stevens wasn’t just asking questions.  It sounded like the officer didn’t believe him.  He seemed to think Sam had stolen the lady’s wallet.  For his part, Sam was stumped.  He knew he didn’t steal anything.  So when Officer Stevens told him he had the right to remain silent, the right to have an attorney and — as he would later tell his Public Defender — “whatever else he said,” all he could think is that he wanted to do whatever it took to convince the officer he had not done anything.

After “mirandizing” Sam, Officer Stevens ran through the questions again.  Sam gave the same story as before.  Officer Stevens told Sam he was arresting him for robbery.

“Robbery!”  Sam’s head was spinning.  “But I didn’t do anything!  I swear I didn’t take that lady’s wallet!”

                                        * * * * *

Sam’s public defender, Shirley Singer, sat across from Sam at the Juvenile Justice Campus where he was being held.  At the perfunctory detention hearing three days earlier, the District Attorney had argued that Sam was “a danger to the community” because he had “viciously” knocked “a helpless middle-aged woman, her arms full of groceries,” to the ground before stealing her wallet.  The judge agreed this behavior was egregious.  As far as the judge was concerned, Sam was “a danger to himself or to the community” and he was ordered detained.  A trial confirmation date was set.  Shirley was here to discuss “the facts of the case,” including the police report.

As Shirley read the report, she noted that, at least according to Officer Stevens, Sam had “admitted” to knocking “the victim” to the ground and taking her purse.  Sam had also “admitted” that he did not return the wallet.

“That’s not what I said!”  Sam was upset.  Shirley didn’t know whether to believe him or not.  She knew, however, that it actually did not matter.  Ultimately, if this was what the police report said, Shirley knew this was likely to be the testimony of the officer.  Sam’s denial of an admission was going to look self-serving.

Shirley knew that the judge was likely to accept the word of the police officer over that of Sam, the only other witness to the conversation.

After all, why would the officer lie?  Sam’s denial of the admission was self-serving.  But there was no way the officer’s assertion that Sam had admitted this crime to him was.

But, hey, this is just a story, right?  Things like this don’t really happen.  So go ahead, talk to the police.  Help yourself to a conviction.

Or you can watch this video of a police officer explaining why there’s nothing you can do to help yourself, once a police officer starts to question you.

And no, it’s not that the police are prejudiced and immediately suspect, stop and harass African-American males for being in the wrong place, any time.

The story, of course, is about a respected Harvard professor named Henry Louis Gates, Jr.  By now, many of you may already know that upon returning from a trip, Professor Gates and a friend, who made the mistake of being of the same race as Professor Gates, had some difficulty getting into the Professor’s house.  A witness to the event, concerned about the possibility that something was amiss, called 911.

This poor woman has apparently been pilloried for the call.  But as she did not recognize the people involved, I see no reason to take her to task for looking out for the neighbors by making the call.

“Why?,” you ask.  “Why should she call just because black people were forcing a door open to get into the house?”  After all, she’s just a racist for thinking that two black men being on the porch, forcing open the door, were breaking and entering.  The neighbor was concerned about the fact that someone was possibly breaking into a house.  Would that we all had neighbors who watched out for our homes.

“But she’s a RACIST!,” the bloggers scribble.  Or type.  I mean, I was going to say “scream,” but that doesn’t work much better than “scribble” when talking about blogs.

That proposition is possible, though somewhat doubtful.  During the 911 call, according to the Chronicle story, the neighbor, Lucia Whalen, only mentioned race when pressed by the dispatcher to describe the men.  And then she described one as possibly looking Hispanic, but stated she did not see the other well enough to describe him at all.

But it’s not the alleged racism (of either the 911 caller or the officer) that I find interesting in this story.  Here’s what makes this interesting enough to get onto my blog; here’s the thing that happens every day which does not get more than a mention in the story:

The officer who arrested Gates, Sgt. James Crowley, said in his police report that he talked to Whalen soon after he arrived at Gates’ home.  “She went on to tell me that she observed what appeared to be two black males with backpacks on the porch,” Crowley wrote in his report.  (Russell Contreras, “Gates 911 tape raises more issues in case” (July 28, 2009) San Francisco Chronicle, A8, col. 3-4, above fold (online version here).)

Only she didn’t.

Whalen’s attorney, Wendy Murphy, said her client never mentioned the men’s race to Crowley…. (Contreras, supra.)

If I had a couple thousand dollars for every time a client, or a witness in a client’s case, told me that they did not say what the police report said they said, I’d be a lot less worried about how I was ever going to retire.

Police officers routinely write police reports that contain statements suspects and witnesses deny having made.  And when I say “routinely,” I mean “in every case I’ve ever worked and in every case where police reports are involved that my colleagues have told me about.”  In fact, this happens with statements written by probation officers trying to jail someone, as well.

And no, folks, it’s not just because they’re guilty.  We might be able to accept that with respect to some of my clients.  It doesn’t work so well with witnesses.  Not infrequently, the misquoted witnesses have no connection to my client, other than that they were witnesses in the case that resulted in charges against my client.

Some of these police reports contain pretty unbelievable things, yet the officers swear by them.  In court. Under oath.  No matter what anyone else says.  Even when officers are reporting not what they saw themselves, but what someone else saw, it’s always the other witnesses — the real witnesses — who are liars.

If you stop and think about it, does it really make sense that so many people (the vast majority of my clients, if you believe the police) invite officers into their homes without warrants and allow them to search? If you had tons of illegal substances in your home — I know you’d never do that, but if you did — would you willingly consent to have the police search your house without a warrant?

Some of these clients, admittedly, have committed crimes.  After all, I’m a defense attorney.  And I’m not so unrealistic as to think that I make my living only by defending innocent people.  Yet it amazes me that these “guilty” people will pay thousands (or tens of thousands) to defend themselves after they supposedly invited the police into the house for a consensual search, even though they knew they had tons of incriminating evidence sitting in plain view.

How do you explain this?  I mean, okay, maybe some people might think the police won’t find their hidden stash.  But how do you explain a police report that says my client invited officers in for a search when a couple hundred pounds of marijuana are supposedly in plain sight?  Or there is a growing operation in the house (hard to hide even from the most cursory of searches).

And then, after having invited these officers in, the client suddenly decides to spend every penny they have on defending themselves against the charges?

Either the police report contains lies, or the officers planted evidence after the fact: that’s how you explain it.  The reason this doesn’t make sense is because it just doesn’t happen this way.  Like the officer who, two years after a crime, suddenly remembers the critical admission the client made — the one that seals the case against him, which the officer never wrote in his report — it’s made up.  The officer wrote what he wrote because it would help to either justify an act the officer should not have done, or to convince someone that the accused person is guilty.

This practice makes a mockery of our trials.  Witnesses testify differently than the officers’ reports?  And in a way that seems to help the defense?  No problem.  We’ll have the police officer testify about what the person supposedly said.  If it differs from what the witness says, well, this is only because the witness is a liar.  Want proof?  If what he or she says is even slightly helpful to the defense, the witness is lying and you, the juror, must accept the officer’s explanation for what the witness really saw.

You can bet your butt that if Henry Gates, Jr., were actually to be prosecuted after his arrest, the witness would have had to withstand the prosecution asking her why she “changed” her story between the time she told the officer “two black males with backpacks” were involved and the time she would be testifying that she did not tell the officer that.  When she was done, the prosecutor would put the officer on the stand and the focus of any questions to him would have been aimed at showing that the witness was— God only knows why — lying now.

But police officers are human beings.  It shouldn’t be hard to understand that sometimes they lie.  This usually happens because it does not matter to the officer if what he or she writes is true because the ends justify the means.  The officer has taken another bad person off the streets and it doesn’t matter to him, or to a lot of other people, how it’s done.  The officers know that many jurors will agree with them.  At the very least, those that don’t will trust the officers to be honest and testify truthfully.  So the officers are fairly sure they can get away with testiLying.

The problem with this is that when the government’s agents begin breaking the laws in order to catch lawbreakers, the law no longer has any meaning.  Rather than the rule of law, it becomes the rule of man.  The strongest, the biggest force, the one in power decides what’s true and what will be done about it; not the law.

Let’s face it, people — and potential jurors — many, if not most, of our laws are only the law because we say they are.  There’s nothing inherently wrong with growing, buying, owning, or using marijuana.  There’s no real reason that a fist fight between two kids at school needs to be charged as a felony, as opposed to being handled by the principal at the school.  (At the very least, it could be charged as a misdemeanor.)  It’s not a law of nature we’re dealing with most of the time, but a prescription of society.  We call these laws because they are meant to apply equally to all citizens, whether they wear uniforms, or not.

If anything does count as a natural law, it would be the law that says the ends do not justify the means; the law that says lying, or otherwise breaking our laws, is wrong even if it’s done to catch the bad guys.

Yet the society that prescribes our non-natural laws against drugs, speeding, and a whole host of other crimes, also prescribes that government must follow certain procedures in ferreting out lawbreakers.  These procedures have evolved over hundreds of years of experience those who went before us had with out-of-control government and officers who don’t know the proper limits of their powers.

We need to stop giving lawbreakers a pass just because they’re wearing uniforms.  However well-intentioned they may be, the road to hell, right up to the very gates, is paved with good intentions.

Either all our laws matter, or none of them do.

More often what I see is people who become uncomfortable after I tell them to stop talking to others.  In particular, I want them to stop talking to the police.  That’s when I tend to hear, “But won’t I look guilty?”

And my response to them is the same as Brian’s response to people who think they’ll look guilty just by hiring an attorney: “No.  You already look guilty.”

And that’s just one of the reasons innocent people need lawyers.

The main page of my website contains a link to Officer George Bruch of the Virginia Beach police department, talking about why people should not talk to the police.  As he notes near the beginning of his lecture, “People are inherently honest.  And that’s their biggest downfall.”

Officer Bruch appears to be like most people: inherently honest.  Officer Bruch states,

I have my job.  My job is to develop probable cause.  Develop a good case.  A great case is a case with a confession.  Get it to the commonwealth’s attorney, so that they can prosecute the case with little, if any, effort.

And he goes on to point out,

The defense attorney’s job, is to hope that they get to their client before I do, and make sure they don’t talk to me.  No matter what.

Now this has nothing to do with whether or not a person is innocent.  As Officer Bruch also admits,

Say you wanted to go into a boxing match.  Hundred dollars if you win.  You’ve never boxed before.  You have to face somebody who is an Olympic boxer.  You’re going to lose. If you’re going to face somebody who has been interviewing people for, in my case, 28 years, you’re going to lose.

Officer Bruch goes on to indicate that this is different if someone is actually really innocent.  But he points out that he tries not to bring innocent people into the interrogation room.  To stress that point, he even says it again at the end of his lecture, after he’s told you some of the ways he and other officers trick people into saying (and doing) things that help get them convicted.

Now what’s the problem with that scenario?  What does that tell us?  The first thing it tells us is that if the police want to talk to you — if they’ve already decided that they want to question you, or, as Officer Bruch says, bring you into the interview room — they’ve already decided you are not innocent.  And, remember, their job is to “develop probable cause.”

This is an interesting choice of wording.  Officer Bruch didn’t say that his job was to prove probable cause existed.  (In fairness, he would probably respond that that is what he meant, even though it’s not what he said.)  The officer’s job, having already decided that you’re guilty — remember, he wouldn’t have brought you in for questioning if he didn’t already think you were guilty — is to develop, or create, probable cause.  His job is to make the prosecutor’s job easy.

The second thing Officer Bruch’s words tell us is that the police will try to trick you into giving them stuff they can use to get a conviction; they’ll even lie to you.  I’m not going to go into all the “tricks of the trade” that Officer Bruch describes.  You can watch the video for that.  (The video is only 21 minutes long.)

What’s important to notice about this, what’s important to remember, is Officer Bruch’s analogy to the amateur versus professional boxer.  Even if you happen to be a person who gets to talk to the police a lot, don’t make the mistake of thinking you can outsmart them in an interview.  By the time an officer reaches the point where he’s interviewing you, he’s received specialized training in how to interview people. And he’s decided you’re guilty, or he wouldn’t be “interviewing” you.  (Officer Bruch also points out how they prefer the term “interview” when they really mean “interrogation,” because people who are “interviewed” are more willing to talk: “We don’t do interrogations.  That’s a bad, mean, nazi-kind of word.”)

In addition, an officer knows how to write a report to make even innocent statements appear to be “confessions.”  The story I like to tell clients when I’m explaining why they have to stop talking goes like this,

A kid is in a hurry; he’s late for work.  So he’s running down the street just as fast as he can.  He tears around the corner and accidentally runs into a woman with a bag of groceries.  He’s going so fast, she’s knocked to the ground.  Groceries go everywhere.  Her purse comes off her shoulder and falls open.

The kid apologizes profusely.  He’s so sorry.  It was a complete accident.  He helps the woman to her feet and begins picking up her groceries, stuffing things into the bag as fast as he can.  He grabs her purse and begins putting the contents back into it before handing it back to her.  When he’s done, he asks if she’s alright.  She says that she is, and he takes off running.  After all, now he’s really late for work.

Neither the woman nor the kid realized it, but when her purse fell open, her wallet went down into the sewer drain.  Later, the woman realizes her wallet is gone.  She isn’t sure whether the kid stole her wallet — he seemed so nice! — but her husband insists she call the police.

Somehow the officer locates the kid and questions him.  “Tell me what happened,” he says.  The kid explains how he was in a hurry because he was late for work, ran around the corner too fast, didn’t realize the woman was there, accidentally knocked her down, stopped to pick up her things and gave them back to her.  “Did you give back her wallet?,” the officer asks.  “I don’t remember,” the kid replies.  He’s an honest kid.  And he is honestly innocent.  (The wallet went down the storm drain, remember?)  “So you might not have given her wallet back?”  “I don’t remember seeing her wallet,” the kid says. “And you ran away after?,” asks the officer.  “I asked if she was okay.  When she said she was, I took off because I was late for work.”

Good enough.  The innocent kid talked to the police.  He didn’t confess to any crimes.  He was honest.  He just answered the questions the best he could.  And he did not say that he stole the wallet or did anything else wrong.

Here’s what the police report says,

The suspect admitted to assaulting the victim and knocking her to the ground.  Suspect confessed that he ran away and did not return her wallet.

And that’s how the officer will testify.  That’s what a jury will hear.

What about all that other stuff?  And the interview was tape-recorded, wasn’t it?  Here’s Officer Bruch again:

I’ll take it [the interview] off the tape and I’ll have my secretary put it to paper.  Immediately afterwards, I’ll take that tape and I’ll scan it over my magnet, throw it in my box, so I can use it again.  I do not keep the tape.  It is not evidence.  It’s not required to be evidence.  If it’s there for the court, it’s just extra.  You don’t have to have that….  You’ve got the guy [the police officer] right there to tell you what happened.

Only you don’t.  You have the guy right there to tell you what he says happened.  And in the case of our hurried kid, trying not to lose his job, thinking he’s innocent…you have “a confession.”  When the prosecutor asks the officer if the kid told him he returned the wallet, the officer will truthfully testify, “He did not say that.”

And that’s why innocent people need lawyers.

If you’re going to go up against a professional boxer, you should hire your own professional boxer to stand in for you.

Now stop talking.  And call me.