It is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail.

The quote is attributed to Abraham Maslow and I have neither a reason to doubt that, nor consider it important enough to look up.

I don’t know if it’s original with him, but, not to be outdone, San Francisco writer, speaker and broadcaster Merlin Mann, recently tweeted:

When your only tool is a hammer, every problem looks like a reason to buy a way nicer hammer.

Both statements have applicability to the rather funny story — which also highlights a problem — that I write about today.

Sometimes, when Norm Pattis is apparently feeling down, he writes very insightful blog posts about it.

Me, I tend to go quiescent.

The ideas don’t stop coming: I just lose the energy I need to write the posts.  I stew on some of the ideas a little, but I am overwhelmed at the idea of shouting into the wind.  Too often, it feels like spitting into the wind.

And we all know how useful that is.  (If you don’t yet know, then here’s an assignment: the next time it’s real windy, walk outside and spit into the wind.  It will give you a chance to feel like a defense lawyer.)

In this post, though, I’m not (really) going to talk about that.  Instead, I’m going to talk about the one thing that somehow manages to keep me going, which is the idea that someone has to keep standing up and pointing out when stupid stuff like this happens, that it’s actually no joke.

I don’t know how long the link will stay active, so I’ll just go ahead and tell you: it’s a story about a kid riding his bicycle past a park where, allegedly, he saw what he thought were hundreds of marijuana plants growing.  Right there in the middle of the park. It looked just like this:

This isn't marijuana. It's not even close. Well, okay: both are weeds.

The police were called.  They dutifully showed up, spent about an hour pulling up 400 plants — and apparently bragging to the press about what a large haul of pot they got — before taking the “pot” back to their office and running tests.  The tests, of course, showed that their weed was not “weed.”

For those who don’t know, “weed” looks like this:

This is not horsemint. It doesn't even look like horsemint. I don't know if you should smoke it.

Right now, Fresno is having a problem with its budget.  Mayor Swearingen was suggesting we try to save money by forcing citizens to take over tree-trimming duties, for which the city has traditionally hired professionals.

Frankly, I’m all for it.

I’m just going to call the cops and report a bunch of marijuana trees growing up around the utility poles in my neighborhood.

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.

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.

The Fresno Bee the other day contained several stories concerning what is increasingly nothing more than a gang of uniformed criminals. The first story I remember concerned a Marysville police officer who stopped a woman for driving without a seatbelt. Apparently, the officer suspected that the woman was hiding the seatbelt in her ass, because he authorized another officer to strip her and do a body cavity search. Right there. On the side of the road. While cars were going by. So far, I’ve been unable to verify whether the officer actually said, “Constitution schmonstitution, check her ass for hidden seatbelts!”

But this is just one such story.

The truth of the matter is that police officers these days increasingly commit crimes. Over the three days it took me to complete this article, each time I opened the Bee, there was another story about an abuse of power by a police officer. The even more amazing and even sadder truth is that most officers who abuse their power, or even commit crimes, never get caught.¹ Unless someone happens to be present with a video camera, the only way you or I could ever know about what happened is if someone who was there tells us about it. But who was there? The police officer and non-police-officer witnesses.

The first hurdle to getting at the truth is that police officers have the power to arrest people. When an officer does something wrong, however, he does not arrest himself. He arrests the victim of the crime. In California, when the citizen has committed no crime at all, the officer will usually charge him with a violation of Penal Code section 148 (resisting, delaying, or obstructing an officer). To the officer, it does not matter that you were resisting because what he or she was doing is wrong. Even if there are other witnesses, it will be the word of the police officer against those witnesses. This is where the second, and most important hurdle is encountered: Nearly always, judges and juries will take the word of one police officer over the word of 100 citizens.

The problem is, police officers are just human beings. They are given immense amounts of power. They can arrest people. They not infrequently beat people. And they carry guns. As Lord Acton, writing to a friend in 1887 said,

I cannot accept your canon that we are to judge Pope and King unlike other men with a favourable presumption that they did no wrong. If there is any presumption, it is the other way, against the holders of power, increasing as the power increases. Historic responsibility has to make up for the want of legal responsibility. Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men.²

The question is, knowing what we know, why do we allow this to happen? Or do we really not know this?

I don’t know the answer to these questions. What I do know is that if you find yourself facing a cop behaving badly, do what you can to survive the encounter. If you are successful, your eyes will have been opened and you should file a complaint and also contact your legislative representatives to encourage laws limiting the abuse of power by officers.

Unless, of course, you don’t mind stripping and submitting to body cavity searches along the side of the road.

1. Not all abuses of power are technically crimes. An officer can overstep his authority and behave abusively toward a citizen without actually breaking the law. Just because something is not against the law does not mean it is something which is acceptable.
2. See the section titled “Lord Acton’s Dictum” in the Wikipedia article “John Dalberg-Acton, 1st Baron Acton” found at http://en.wikipedia.org/ wiki/John_Dalberg-Acton,_1st_Baron_Acton#.22Lord_Acton.27s_dictum.22 (last visited August 6, 2008).