I haven’t written for long enough that the last few days I’ve been jonesin’.
The problem isn’t that I haven’t had anything to write about. Quite the contrary: I’ve had too much to write about. The problem is that what I’ve had to write about made me so angry that I decided to try to cool down a bit first.
Well, I think the line has finally been crossed. Tonight I’m going to start looking into what it takes to purchase a gun or two.
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…)
Yesterday, I was sitting in court waiting for a case to be called when I became aware that the accused minor in custody was in the process of making an admission to a crime.
What caught my attention is the nature of the crime.
A judge whom I consider a good man — and who I believe I would be pleased to call my friend if ever that were possible — nevertheless lost his temper with me recently during an off-the-record discussion. The subject of the discussion and the way the court lost its temper is why I had to write this post.
Two things should be noted before I “get into it.” First, whether the court or anyone else believes me on this, I’m writing this because a driving force in my life is the Jewish concept of tikkun olam. In other words, I want to work cooperatively to leave the world a better place than it was when I arrived. If I can’t do it cooperatively, though, I will nevertheless work to do it.
The second thing is the corollary to that desire: I’m not writing this to further anger the judge (though given the court’s refusal to give serious consideration to this issue, that may be a sadly unavoidable side effect of my comments). Rather, I wish to explain what I was unable to say due to the chilling effect of the court’s reaction to my off-the-record comment — and to the fact that others had started to filter into the courtroom. I’m hopeful — since I know some judges read my blog — that this post might help explain why it is the right for the court to change its position on this one issue, and why it should be ashamed if it does not.
So what were we talking about? And what did I say that so enraged one of the few judges I would love to be able to call my friend?
It’s amazing how often history reports itself in things both small and large.
I recently ran across one of the small things in this passage from Sinclair Lewis’s It Can’t Happen Here:
“Remember our war hysteria, when we called sauerkraut ‘Liberty cabbage’ and somebody actually proposed calling German measles ‘Liberty measles’?” (Sinclair Lewis, It Can’t Happen Here (2005 ed.) p. 17, originally published in 1935.)
Can I interest you in some “freedom fries”?
A reader from India left a comment here stating, among other things,
Am very impressed with citizens['] rights in your country….I should say cops in our country take us for a ride and just twist things as per their whims [a]n[d] fancies as we have no clue of our rights.
There is a saying in the legal community that “hard cases create bad law.” When I was young, whenever I would explain my behavior as contingency planning based on the possibility that something might happen, my father had a saying of his own. In response to my “if this happened” or “if that happened” reasoning, he would state the following maxim:
If worms carried shotguns, robins wouldn’t eat them.
Not infrequently, as a child engaged in excessive contingency planning, I found this response nothing short of irritating. As a rational adult attorney, I have found myself quoting this maxim with some regularity.
Officially, the basic rule in the United States of America is still that “searches conducted outside the judicial process, without prior approval by 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, 2009 Daily Journal D.A.R. 5611 (2009).)
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.”
Over on my other blog — I maintain FresnoCriminalDefense.com as my website and blog relating to more regional issues specific to my Fresno criminal defense office — I had the chance to respond to one of my readers who complained, among other things, that I was not being fair to law enforcement officers because I made allusions to the similarities between them and the enforcers of totalitarianism in Nazi Germany.
The timing could not have been more perfect.
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