Thankfully, Ray McEdward of Madera provides a shining example that being able to read does not a lawyer make.

Earlier this month, I wrote about Arizona’s law ostensibly aimed at indocumentados, the less-offensive term for people in the United States without papers, or the legal right to be here.  Since then, a number of people have stopped by to misunderstand the post and drop their own asinine comments.  Some of them are just stupid; others are bigots.

No, that’s not necessarily redundant.  The categories frequently overlap, but being a citizen of the State of Stupid does not bestow automatic dual-citizenship rights in the Republic of Bigotry.  Or vice versa.

Nor have I ever claimed that wishing to do something about people present in the United States without proper authority makes one a member of either group.  A person can believe in immigration laws and wish to see them enforced without being stupid, without being a bigot.  It’s just that overlap thing again.

And I think McEdward’s letter provides a perfect example of how and why discussions on this issue have been problematic.

I don’t know McEdward.  Never met him.  Don’t know if I’d like or dislike him if I ever did meet him.  So I’m not saying he’s part of any of the groups I’ve discussed above.

Although I strongly suspect he’s not an indocumentado.

What I do know about McEdward is that he wrote a Letter to the Editor of the Fresno Bee, which was published today.  The letter appears to berate those who have criticized Arizona’s law by pointing out — incorrectly — that California has a similar law on the books.

With all the attention being focused on Arizona and its recent legislation, I wonder how many Californians are aware of section 834(b) [sic] of the California penal Code. (Ray McEdward, “Violating California law?” in Letters to the Editor (May 28, 2010) The Fresno Bee, B4, col. 5.)

Not to make too much of it, but there being no such section, I think Mr. McEdward is referring to California Penal Code section 834b.  This is not an uncommon mistake, though: I not infrequently demur to Complaints filed in criminal court by prosecutors who can’t read, either.  And prosecutors are allegedly real attorneys.

Less forgivable, however, is the failure to understand the text of 834b, and then to write as if the section states something which it clearly does not.  Subsection (a) of Penal Code section 834b, for example, clearly delimits the scope of the entire “lengthy” code section:

Every law enforcement agency in California shall fully cooperate with the United States Immigration and Naturalization Service regarding any person who is arrested if he or she is suspected of being present in the United States in violation of federal immigration laws.

Here — at least as to interpreting McEdward’s letter — things get a little dicey.  He appears to believe that “mayors and council members of California’s ‘Sanctuary Cities’ are in violation of the Penal Code.”  He doesn’t explain why, but based on a reading of the entire letter, it appears that it’s because they’ve criticized Arizona.

I think.

As I said, it’s not at all clear.  I’m going to invoke the Gricean Maxim of Relation in conversational implicature to assume he thinks there’s a connection between his reference to Arizona, to section 834b, and to the alleged malfeasance of mayors and council members of California’s “Sanctuary Cities.”  From that, I gather that he either thinks that by criticizing Arizona, the mayors are breaking the law, or, at the very least, that he is saying — in some unexplained way which makes the Arizona reference merely superfluous — that they are breaking the law.

Hopefully, he is merely exercising his own right to free speech and not giving out legal advice to mayors, council members, or those he hopes will act to file charges against them.  Besides the latter being illegal if he’s not a lawyer, he’s just wrong.

As a practicing lawyer in Fresno, Tulare, Kings and sometimes even Madera counties, I can assure you that California’s law enforcement agencies cooperate just fine with the United States Immigration and Naturalization Service.  In fact, if you want to see just how quickly they’ll arrange deportation, tell them that a critical defense witness is an indocumentado.

Again, given the ambiguities of McEdward’s letter, it’s not clear, but — if the reference to Arizona in his letter means anything — I think the part he misses involves at least one critical distinction between the California law and the Arizona law.

California’s law requires that law enforcement cooperate with Immigration and Naturalization regarding people who have been arrested if the arrested person is suspected of being present in the United States in violation of immigration laws.  The Arizona law, as originally written, required police to determine immigration status based on “reasonable suspicion during any lawful contact.”  A “lawful contact” would include — as one Phoenix, Arizona police officer who sued the State argued — ordinary encounters on the street between police and others.  The Arizona law has since been modified.

In any event, I strongly suspect that McEdward might have been trying to be funny.  It’s hard to believe that he really thought “mayors and council members of California’s ‘Sanctuary Cities’” were engaged in “[a]ny legislative, administrative, or other action…to prevent or limit the cooperation required by subdivision (a)” of California’s Penal Code by criticizing, or even by sanctioning Arizona through breaking off economic ties (e.g., by not engaging in business with them).

First of all, Arizona is not the U.S. Immigration and Naturalization Service.  Secondly, “mayors and council members” are not “law enforcement agencies.”  Thirdly, the requirements of Arizona’s law are different enough from what California’s Penal Code § 834b requires that even if “mayors and council members” were “law enforcement agencies,” their acts are not violative of 834b’s prohibition.  Neither passing resolutions, nor even performing specific acts, to cut financial ties with Arizona are acts which prevent or limit law enforcement — either in California or Arizona — from cooperating with the Immigration and Naturalization Department (which, incidentally, no longer exists).

The biggest problem of all, though, is not McEdward’s misunderstanding.  After all, presumably, he is a “mere” ciudadano who is also apparently not an attorney.  The bigger problem is that too many of our lawmakers similarly lack any knowledge or understanding of law, which is one reason we’re having so much trouble coming up with laws that effectively address the issues with which we are concerned.

But, hey, if anyone can remove an appendix, who needs doctors?  If anyone can understand laws and legal issues, why should we care if our leaders have any training in, or even any rudimentary knowledge of, law?

The article itself was basically just a reprint of one that was supposed to appear in the Wall Street Journal on June 6, 2008.  It was a user comment that struck me more and inspired this post.

I don’t normally write about non-criminal law issues, but since this involved a sheriff picking and choosing what duties to perform, it seemed an acceptable fit here.

The commenter praised the sheriff because even though what the sheriff did was “against the law,” it was the morally right thing to do.  At least, it was the morally right thing to do in that commenter’s opinion.

I disagree.  At least I think I disagree.  (Keep reading!)

So when I read the comment praising the sheriff, I started to post the following comment in response, but then decided that since my comment was getting a little long, and since that post was so old, and since my current briefing schedule has temporarily interfered with my completing a blog article for this blog, I’d post it here instead.  Hopefully, it will inspire some fresh commentary, because (when I stop and think about it), I’m not 100% sure how I feel about this myself!

This is what concerned me and what I started to post:

Does that mean you think the law does not matter?

I agree that it would be great to find a way to help people keep their homes.  However, approving of the sheriff’s refusal to enforce existing law just because you like the result is bad precedent.

What will you do when he decides — based on his own moral code — to refuse to enforce laws that you think are good?  What will you do if he decides to take away some of your rights, because they get in the way of what he wants to do?

Because that’s exactly what he’s done here: he’s taken away the rights of those who paid for the property.  Remember, when you buy a house, the bank actually pays for it.  You then pay the bank back.  If you don’t pay the bank back, you’ve taken their money.  If the sheriff refuses to evict you and sell the property, he’s a government agent endorsing an improper taking contrary to the Fifth Amendment.

In fact, it’s even worse, because he’s not really taking private property for public use; he’s merely endorsing your theft of property.  One can argue he’s taking private property from one party (the bank) for private use by another (you).

Frankly, I believe banks need to be better regulated so that they cannot take advantage of people who don’t always understand the long-term consequences of their acceptance of the kinds of loans the banks give them.

But a sheriff who decides which laws to enforce and which not to enforce is no sheriff at all.  He is, in essence, no better than a criminal, ignoring the rule of law.

When the law is “wrong” and hurts people, the law should be changed by the legislature; not because the sheriff decided to ignore it.

Now, mind you, I’m not unaware — as I believe I pointed out above — that it’s a real shame what’s happening to people in the current market, with the economy and housing going the way it is right now.  My own house is “upside-down,” as they say.

I’m also aware that the Adjustable Mortgage Rate (ARM) type of loan that many people (including me, by the way) bought into is the cause of many a default when the rates zoom skyward.

Something should be done about this.  From what I understand, the last run of defaults is about to be repeated in a new wave this coming year when several people (myself included!) will see their ARMs kick in.

But that “something” is not for a sheriff to take it upon himself to decide that he won’t perform his duties — to decide that it’s okay for banks to be stiffed — because homeowners are suffering.

I hope banks do end up losing out for their refusal to help fix a mess they helped create.  (People like me who made misjudgments about how these loans would play out helped, too.  And we are losing out, believe me!)

But, again, I’m not at all sure that the answer is a sheriff who refuses to do what his job requires.

Now that I’ve said that, though, let me throw this out there:  What if sheriffs throughout the land had refused to endorse “Jim Crow” laws in the last century?  That would have been a moral thing, right?  But it would also have been contrary to law, right?  And it’s the duty of sheriffs — as with all law enforcement officers — to uphold the law, right?

The water is a little murkier now.

I can’t even completely argue that the situation is different here because the foreclosure problem just has to do with people losing their homes — it’s a property question — and “Jim Crow” laws weren’t.  But weren’t they, to some extent at least, property laws?  White bigots wanted to bar African-Americans from access to their property.  White bigots wanted to choose to whom they would provide services.  White bigots, having power, wanted to use the power to their own advantage and to the disadvantage of non-whites.

How is that different from what the banks want to do now?

But if — as I do strongly believe — it would have been acceptable for sheriffs to refuse to enforce “Jim Crow” laws, why is it not acceptable for sheriffs to refuse to force people from “their” homes and sell them on behalf of the banks who actually own them?

I don’t have an answer.  It’s definitely something for me to mull over.  My fear is that saying it’s alright for a sheriff to pick and choose which laws to follow — and how — is contrary to the rule of law and ultimately hurtful to us.  The Benevolent Fascist is no more welcome in my world than The Nasty Fascist.  Today, the duty the sheriff refuses to perform is enforcing laws pertaining to mortgage contracts, foreclosures and sales of foreclosed homes.  Tomorrow, might not it be our civil rights?

Or is this just a cloaked slippery slope argument?

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”? 

There’s a situation that’s been brewing for quite some time in Maricopa County, Arizona.  Although more than one of my friends have blogged about it, including Scott Greenfield (criminal defense attorney in New York, New York), Brian Tannebaum (criminal defense attorney in Miami, Florida) and, particularly, Mark Bennett (criminal defense attorney in Houston, Texas), I’ve found myself wanting to delve a little deeper before tossing my hat into the ring.

Aside from my usual tendency to over-prepare for things, I think the reason is because early on I saw the connection between this and my beliefs about how police states are born.  (Some) People I’ve talked to about this scoff, but I believe we’re living in a nascent — maybe “prenatal” — police state in America right now.

And I wanted to dig into this a little more; not just to discuss Maricopa.  I wanted to show exactly why Maricopa and Chief Arpaio are so scary. 

Police states, as I’ve said before, don’t spring into existence fully-formed, as Athena did from the forehead of Zeus. 

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.” 

Seen in this light, Maricopa is just another step in the transformation from the rule of law to the rule of man.  It is a demonstration of fertility.

Once started down the path — once fertilization occurs – a symbiosis develops.  The erosion of the rule of law is accentuated by the nascency — the beginnings — of the police state. 

By the time the average person recognizes that a police state exists, it is too late.  The police state has grown up enough to survive outside the womb.  The rule of law is gone.

People don’t think about this much.  Perhaps it’s because the so-called Godwin’s Law teaches that the minute you start to compare something or someone to Hitler and the Nazis, you’ve lost your argument.  That’s usually — perhaps nearly always — true.  But it cannot be always true because if it were, that would mean that there never can be anything that can compare in any way, shape, or form, to Hitler and the Nazis. 

To believe that is not only stupid, it is the most surefire way to ensure that another Hitler, another Nazi Party, another repressive regime will “surprise” us.  By refusing to consider how free democratic republics — such as pre-Nazi Germany was — turn into fascist dictatorships, we leave ourselves wide open to them.  It’s like ignoring the obviously gravid woman and being surprised when her child is born.  What?  Did you think she was just fat? 

The rule of law began taking hits almost from the time the Founders of the United States initially embraced it.  The desire to control others, which is a necessary (but not sufficient) precursor to fascism, is not at all an abnormal desire.  I’m not immune from it, however much I’d like to think I am, and neither are you.

Nor is the push to control always wrong.  Nobody — and that includes me — wants to live in a completely anarchic society.  No one — and that includes me — wants to see those who murder, rape, steal, or otherwise harm society freely roaming the streets, plying their illicit “trades.” 

Unfortunately, it is here, where we are weakest and most emotional, that the Joe Arpaios of the world find purchase on our souls. 

On a day in late October, suddenly striking in every city and village and back-hill hide-out, the Corpos ended all crime in America forever, so titanic a feat that it was mentioned in the London Times.  Seventy thousand selected Minute Men, working in combination with town and state police officers, all under the chiefs of the government secret service, arrested every known or faintly suspected criminal in the country.  They were tried under court-martial procedure; one in ten was shot immediately, four in ten were given prison sentences, three in ten released as innocent…and two in ten taken in the M.M.’s as inspectors.

There were protests that at least six in ten had been innocent, but this was adequately answered by [President of the United States] Windrip’s courageous statement: “The way to stop crime is to stop it!”

The next day, Medary Cole crowed at Doremus, “Sometimes I’ve felt like criticizing certain features of Corpo policy, but did you see what the Chief [as they called the President] did to the gangsters and racketeers? Wonderful! I’ve told you right along what this country’s needed is a firm hand like Windrip’s.  No shilly-shallying about that fellow!  He saw that the way to stop crime was to just go out adn stop it!”  (Sinclair Lewis, It Can’t Happen Here (2005 ed.) pp. 206-207, originally published in 1935.)

With this — the illegal acts which “ended all crime in America forever” — the fascist President Windrip of Sinclair Lewis’s It Can’t Happen Here temporarily beat down the concerns of ordinary Americans for what fascist tendencies he had already exhibited.  Maricopa County residents — including, amazingly and shockingly, an attorney — approve of Arpaio’s actions and seem unperturbed by what they actually signify.  Arizonans — not just those living in Maricopa County — are similarly pleased with Sheriff Arpaio for his attitude toward “criminals.”  Nor is Arpaio himself apologetic for his obvious abuses of power. 

Nevermind that Arpaio’s tactics have brought widespread criticism from Jewish groups such as the Anti-Defamation League and the American Jewish Committee (who well-recognize what happens when fascism goes unanswered), as well as the Arizona Ecumenical Council (a Christian group of churches) and the much-reviled protector of civil liberties, the ACLU.

This is how police states are born!  These Arizonans and all who share their opinion about Arpaio are why it can happen here!  As Doremus Jessup, the “hero” of Sinclair Lewis’s book noted:

“The tyranny of this dictatorship isn’t primarily the fault of Big Business, nor of the demagogues who do their dirty work.  It’s the fault of Doremus Jessup!  Of all the conscientious, respectable, lazy-minded Doremus Jessups who have let the demagogues wriggle in, without fierce enough protest.

“A few months ago I thought the slaughter of the Civil War, and the agitation of the violent Abolitionists who helped bring it on, were evil.  But possibly they had to be violent, because easy-going citizens like me couldn’t be stirred up otherwise.  If our grandfathers had had the alertness and courage to see the evils of slavery and of a government conducted by gentlemen for gentlemen only, there wouldn’t have been any need of agitators and war and blood.

“It’s my sort, the Responsible Citizens who’ve felt ourselves superior because we’ve been well-to-do and what we thought was ‘educated,’ who brought on the Civil War, the French Revolution, and now the Fascist Dictatorship.  It’s I who murdered Rabbi de Verez.  It’s I who persecuted the Jews and the Negroes.  I can blame no Aras Dilley, no Shad Ledue, no Buzz Windrip, but only my own timid soul and drowsy mind.  Forgive, O Lord!” 

(Sinclair Lewis, It Can’t Happen Here (2005 ed.) p. 186, originally published in 1935.)

Hopefully, Maricopa County will turn out to be just another Beer Hall Putsch.  But this does not mean we do not need to be concerned.  Hitler’s push, after all, did not end with the putsch.

That was just the beginning.

It can happen here.

When I was young — and I swear to you that once, I was — I saw a comedy routine by a Christian comedian. I don’t remember many of the details, but I think he was making fun of Christian Scientists because they believed that they could just wish the world to be as they wanted it to be, regardless of reality.

In his routine, he told of a Christian Scientist who stepped off a curb in front of a bus.  He didn’t look both ways first because in keeping with his religious beliefs, if he wanted the road to be clear and his passage safe, that’s what would be.

As he lay there on the gutter, he said, “I didn’t just get hit by no bus!  My left leg bone isn’t sticking out of my right ear!”  Or something like that, followed by uproarious laughter.

Notwithstanding the doctrine of the separation of Church and State, this seemingly ignorant approach to life has served the courts quite well for the last couple of decades.  It’s apparently not meant as a joke; nobody’s laughing; and the courts take this approach with a perfectly straight face.

The Daily Journal — a publication which has the monopoly on the Daily Appellate Report and therefore doesn’t have to answer its phones or talk to anyone if it doesn’t want to, even to let them sign up for services — had a story today that shows how the doctrine works in our system of “law.”  The article, “New Standard for ‘Move-Aways’ in Child Custody Battles,” notes:

Traditionally, a parent seeking to change custody arrangements bears the burden of demonstrating that a “change of circumstances” necessitates the requested change…. Over the last decade, however, several California courts have espoused a more fluid approach, opting not to apply the “change of circumstances” standard.  (Stacy D. Phillips, et al, “New Standard for ‘Move-Aways’ in Child Custody Battles” (October 29, 2009) Daily Journal, p. 6.)

There are procedures for altering the law in a constitutional democracy when the law isn’t working as well as we’d like.  Admittedly, the procedures themselves don’t work very well, because they depend upon the Legislative branch of government, which has largely abandoned its traditional role of legislating in favor of devoting its meager resources to finding ways to get lobbyists to pony up more of the cash Legislators so desperately crave.

Yet, technically-speaking, the law of the land — and thus the law the courts should be following — has the Legislative Branch passing laws while the courts merely apply the laws to the cases before them, or, if the laws are vague, they will provide, in the process of applying the laws to the cases before them, an interpretation of the law.  They will explain the meaning of the Legislature’s law; they (theoretically) won’t make up one out of whole cloth.

Under this system, if the law isn’t working out so well, that’s a bummer: the courts have no authority to change the law.  Changing and repealing laws that aren’t working out, like the job of passing them in the first place, is left to the Legislature.

In California, “the Legislature” arguably includes ordinary citizens with or without much common sense who may or may not be swayed by false or misleading advertising, who have registered to vote, and who then actually do go and vote on disastrous pieces of pseudo-legislation usually sponsored by corporations or churches referenda.

This is how laws get made because in either a republic (i.e., representative democracy) or by mob rule straight-out democracy, those who govern do so only in accordance with the will of the governed.  The United States started out as a republic and has been increasingly evolving towards mob rule a straight-out democracy, with California leading the charge to eliminate the republican form of government.

(Aside: Benjamin Franklin, immediately following the Constitutional Convention in 1787, where the United States Constitution came into being, was asked: “Well Doctor, what have we got, a republic or a monarchy?”  Franklin replied, “A republic if you can keep it.”)

Well, that’s how it’s supposed to be.

In actuality, when a court in California needs a law that doesn’t exist, or doesn’t like the way an existing law is working out, it makes up a new one, or just refuses to follow existing law, or both.  In many such cases, an appellate court then gets a chance to look at the trial court’s decision.  If the appellate court likes what the trial court did, it may also choose to ignore the law, accept a new one made up by the trial court, make up its own new one, or all of the above.

In the particular case discussed by the Journal article, notwithstanding the trial court’s failure (refusal?) to follow the law,

The court of appeal nonetheless affirms the trial court order, ruling that the mother did not need to show a change of circumstances based on the reasoning that “the [trial] court did not change custody,” but merely changed the parenting plan.  The court of appeal further states that despite the fact that the court gave the mother permission to relocate the child, “the court continued joint custody with a modified co-parenting arrangement.”  The court essentially concluded that changing a 50-50 division of custodial time to a 75-25 division, caused by one parent moving with the child to another state, did not amount to a change in custody, and that therefore, the moving parent was not required to show a change of circumstances.  (Phillips, supra, at 6, citing Niko v. Foreman, 144 Cal.App.4th 344 (2006), alteration in the original.)

The article goes on to note that this case has caused confusion and controversy for three years now and ponders the question of what the court was trying to do and why.  But regardless of what the court was trying to do, what it did do is ignore what it didn’t like about the law as it stood.

Now, when the parties disagree with the actions of an appellate court in California, if the parties have enough money and energy, there is still recourse to the California Supreme Court.

The rule in the California Supreme Court?  If you guessed that it’s the same rule the appellate court follows, you’d be wrong, because the appellate court can’t refuse to hear an appeal, but the Supreme Court can.  So long as the California Supreme Court is happy with the result in the appellate court, or is too busy to correct any abuse of the law at that point in time, the Supremes will refuse to hear the case.

If some other appellate court in a different district of California has upheld the law and the California Supreme Court likes one of the decisions over the other, it may decide to put an end to things by taking the case and publishing an opinion supporting what the Supremes want the law to be.  It might even be what the law had always been.  I mean, they might actually affirm that the law is what the law says it is.  (Hey, anything is possible!)

In Niko, the Supremes refused to hear the case.  This left the holding of the appellate court, which had liked the decision of the trial court, in place.

Now, mind you, the lower courts would not join my analysis of how the law really works in California.  Not at all.  As far as they’re concerned, they did not ignore the law; they did not make new law; they merely “clarified” the law.  Besides, the “changed circumstances” rule was not legislative in the first place.

Wha…huh?!

That’s right.  “The change of circumstances standard is based on the principles of res judicata.”  (Burchard v. Garay, 42 Cal.3d 531, 535 [724 P.2d 486], quoting Sharp, “Modification of Agreement-Based Custody Decrees: Unitary or Dual Standard?” (1982) 68 Va.L.Rev. 1263, 1264, fn. 9.)

So what’s all this poppycock about laws being made by the Legislature and courts are supposed to just apply them?

Well, as I said above, that’s how it’s supposed to work.  As I also noted, that’s not how it really works.

And, probably, it couldn’t really work that way.  After all, the laws passed by the Legislature are incomplete.  They probably could not help but be otherwise, since they are general principles and as such cannot necessarily be directly applied to every case that comes before the courts.  It would probably always be the case that intermediary rules would need to be developed by the courts.

But, for one thing, those rules should — I mean, in our representative democracy and even following mob rule a straight-out democracy, they should — be tied in some way to the actual laws passed by the Legislature or by disastrous pieces of pseudo-legislation usually sponsored by corporations or churches referenda.  And for another, there should be some consistency to them.  At the very least, when the court changes them, the court should admit that they changed them and explain why.

The prime argument against Niko is that it refuses to call a spade a spade.  Let’s face it: when one parent moves to another state with the children of a marriage, how can a court say it is not a change in custody?  How can a 50-50 custodial arrangement that becomes a 75-25 arrangement not reflect a change in custody?  If parents make an end-run around the “change of circumstances” rule by arguing that a move-away merely marks a change in the “parenting plan,” both judicial decisions and custodial arrangements themselves will lack stability and continuity.  (Phillips, supra, at 6.)

So it goes.  When the courts decide they do not like what will happen if they follow the law, there really is just one rule that remains constant: the courts will do as they please, to obtain the result they want.

And not even God can help you if what you want is not what they want.  Because both the comedian and the Christian Scientist he joked about were wrong.  Neither of them could remake the world just by saying they had.

Only the courts have that power.

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.

The crux of the reason for my long-term banishment was that I mentioned the impact the supposed adult — I’ll call him “Jack Merridew” — was having on my ability to perform some of my work and that I suggested continued interference by Merridew might provoke a legal complaint.  And that threw everyone into a tizzy.  I had unknowingly committed the ultimate sin: I “confused RL with IRC”; that is, I ignored the unspoken (and idiotic) belief that “real life” and “Internet Relay Chat” are two separate things.

Today, we know better.  Or do we?

I was reminded of this incident by a discussion on Twitter. An attorney there asked for ideas concerning the proposed invasion of privacy of various members of a digital support group for abused women.  Apparently, he is representing someone who wishes to maintain their right to privacy.  (As a side note, this is one of the main things I like about Twitter: the ability to pose quick questions to others in my field who may be able to provide insights I’ve not come up with myself.)

There was a brief mention of Electronic Data Discovery laws.  But in thinking about the reasons why people who were not involved in the litigation might have a right to have their information protected, the first thought that came to my mind was “why not use arguments from what Jack Merridew used to disdainfully refer to as ‘RL’?”

Although many like to think of the Internet as some entirely new frontier, “in reality” it isn’t.  And even if it were, human beings didn’t try to completely reinvent new systems of law from scratch whenever they encountered some “new frontier.”  If they did, the United States legal system would not look as it does today.  We would be missing our rich history in English common law that continues to be felt almost two-and-a-half centuries after the signing of the Declaration of Independence!

Lord Coke is alleged to have said,

He who knoweth the law, and knoweth not the reason thereof, soon forgetteth his superfluous learning. (William Everett Britton and Ralph Stanley Bauer, Cases on Business Law, p. 629 (1922).)

And the renowned Justice Oliver Wendell Holmes, Jr., in his 1897 law review article titled “The Path of Law,” stated that to be a good lawyer you needed, among other things, to:

[F]inally, so far as you can…consider the ends which the several rules seek to accomplish, the reasons why those ends are desired, what is given up to gain them, and whether they are worth the price.  (Oliver Wendell Holmes, Jr., “The Path of the Law” 10 Harvard Law Review 457 (1897). [I cannot give the specific page reference because the copy I found does not include the original pagination.])

Holmes followed this statement with the observation that we (presumably lawyers) don’t work enough with the theoretical underpinnings of law.  And — not that I’m any Oliver Wendell Holmes, Jr. — I have to say that I tend to agree.

Holmes’s point, by the way, did not mean that we ignore other areas, such as historical development.  He did not aim for some kind of pure theoretical study like those of Dworkin or Hart. What he meant was that to really be able to do our jobs as lawyers, we needed to have some understanding of public policy: the aim of the laws that made up our particular practices.  (For this reason, he argued that the study of Roman law, which had been recommended to him when he was younger, was simply a mistake.  Studying Roman law was a waste of time for someone practicing within the American jurisprudential system.)

With respect to the inspiration for this article — the specific questions asked on Twitter — I proposed analogizing from whatever situation might arise in a face-to-face, non-Internet-mediated support group.  A suggestion was made that in that situation, the exchanges are oral and subject to difficulties in reproduction.  In the Internet-mediated group, “it [is] written and preserved.”  The belief was expressed that “It is harder to fight a written document.”  And so the search is on for a rule that would allow the quashing of a subpoena for this written record (presumably a conversation preserved by private bulletin board software).

Holmes would see this as a mistake; a failure of jurisprudential theory.

There is a story of a Vermont justice of the peace before whom a suit was brought by one farmer against another for breaking a churn. The justice took time to consider, and then said that he has looked through the statutes and could find nothing about churns, and gave judgment for the defendant. (Holmes, supra.)

Presumably, if something other than a churn had been broken, judgment could have gone to the plaintiff.

There is a public policy behind the refusal of courts to allow fishing expeditions into the happenings within therapeutic groups.  In California, at least, “psychiatric material is generally undiscoverable prior to trial.”  (People v. Gurule, 28 Cal.4th 557, 593 [123 Cal.Rptr.2d 345; 51 P.3d 224] (2002).)  (At trial, different principles apply. (People v. Hammon, 15 Cal.4th 1117, 1128 [65 Cal.Rptr.2d 1; 938 P.2d 986], citing Davis v. Alaska, 415 U.S. 308 [94 S.Ct. 1105; 39 L.Ed.2d 347].))

In the interest of keeping this article from running to book-length, suffice it to say that there remains an argument over whether or not the discussions on an Internet-mediated support group constitute “psychiatric material.”  Here, too, however, if I were the attorney, I would argue from a Holmesian point of view:  Why is psychiatric material generally undiscoverable prior to trial?  How should that principle be applied to the Internet-mediated support group setting?

A healthy understanding of, and reliance upon, the theory behind the law, rather than churning through a large number of databases looking for a case specific to such settings, where none may exist, goes a long way towards accomplishing the aims of the system.

The Internet, for all the good that it has brought otherwise, is still relatively new and unreliable when it comes to the consistent and competent dissemination of information — time-sensitive or otherwise.

This morning, for example, I received a phone call from a program placement counselor.  I had requested my client be evaluated for in-patient placement before an upcoming hearing.  Several days ago, I emailed the evaluator to inform her the client’s family had paid the evaluation and fee and she should proceed.  Now, I’ve exchanged several emails with this evaluator, so I had no reason to think my email would not be received.  But this morning’s message on my voicemail had her asking me to notify her when the family made its payment so she could get started, since the hearing date is fast approaching.  So, I sent her another email, but (to be safe) I also called her (and was forced to leave a voicemail when I could not reach her).

Meanwhile, on this and another blog I maintain, I daily wade through tons of spam to avoid missing comments people might post in response to my articles.

While looking for an old missing email this evening, I happened to run across a different email, concerning the Pace case.  Although I thank the gods it’s not a case to which I’m assigned, I missed the message because my filters kept it from my Inbox folder!

The Pace court stated:

The court acknowledges that Mr. Bridgers,’ Mr. Markel’s, and Ms. Baxter’s [the attorneys who were not notified of the hearing because the court allowed itself to be identified on the Internet as a pornography spammer] absence was not wilful or contumacious. It was, instead, simply negligent because of the manner in which their computer was set up to deal with notices the court issued through its ECF system. While that may explain the absence of plaintiff’s counsel and help to make it somewhat understandable, that is not enough.

And, since “that is not enough,” the court penalized the attorneys by requiring them to pay attorneys’ fees to opposing counsel.

On the one hand, some smug self-righteous and thoughtless individuals might count this as justified on the grounds that the firm responded to its female employees’ complaints by tightening its spam filters when it should not have.  On the other hand, if the law firm had not done this, they will be potentially open to a suit on the basis of creating a hostile work environment for the female employees who complained.  On the other hand — ha! you thought I only had two hands! — the reality is that the courts don’t give a rat’s ass about justice, which requires notice, among other things.  Instead, ironically, they behave more and more as arbitrary, process-oriented, content-blind and unfeeling bits of computer code.  They’re apparently sophisticated enough to hire secretaries who know how to use the Internet (you don’t think the judges themselves actually send email notices to attorneys, do you? half the living judges wouldn’t know how!).  But they’ve never heard of telephones and couldn’t suggest that when the attorneys didn’t show up after an email — EMAIL! — was sent, that someone call the firm so they could send someone to attend the hearing.

What the hell is wrong with you people?  Have we truly reached the point where following imperfect procedures matters more than justice?

Someone, please: shoot me now!

The point is, if the law matters, then you must read and know the law to be an adequate attorney. To be a really good attorney, you must have some theoretical understanding of the law.

As TheAnthroGeek (quoting Leonardo da Vinci) points out, the concept is not new:

He who loves practice without theory is like the sailor who boards ship without a rudder and compass and never knows where he may cast.

You can get pretty far in life — even as a criminal defense attorney — without ever learning the law. One of the more well-known, well-respected and best attorneys in Fresno (may he rest in peace) “readily admitted that his knowledge of the law was not his strength.”¹ And because of overcrowding in the courts, even those few judges who know the law frequently overlook it in order to keep things moving. After all, forcing the State to prove its case can take time, especially in a county where prosecutions are hastily- and sloppily-considered and thrown together.² So long as no one with any power complains, nothing is done.

Nevertheless, even as jaded as I fear I’m becoming — and it only takes one or two encounters with the Fifth Appellate District Court to strip an attorney of the belief laws actually matter — a good knowledge of the law can make a difference.³ This is because the concept of law, if not the laws themselves, still counts as persuasive authority.⁴ For that reason, it seems to me even more important for defense attorneys to keep current on the law. The more knowledgeable and certain the attorney is, the more likely she or he will be able to counter any false statements of law made by the prosecution — and, trust me, the prosecution will make false statements of law, either knowingly, or from ignorance.⁵

The moral of this story? Well, there’s actually more than one. We must work against the increasing tendency of our system to sacrifice substance to status. People with the money and the right social status to hire the right attorney fare better than those who do not have money or social status. As the recent Genesis trial re-demonstrates, who you are matters as much to the outcome of your case what the law says. (I didn’t discuss that in this posting because I’m trying to write shorter articles.) If, however, the laws actually mattered, this tendency would be reduced by retaining lawyers who care enough to learn the law.⁶ There’s probably a political aspect to solving this problem, but I don’t have time to explore that in this article.⁷

Another approach is for attorneys to push back when courts ignore the laws. Yes, it’s harder. Yes, it takes more work. Before you can convince others to follow the law, you must know the law. The better you know the law, the greater the chance you can convince the courts to follow it.

1. Chris Collins, “Noted Attorney Ernest Kinney succumbs to cancer at age 63″ (April 30, 2008) FresnoBee.com formerly found at http://www.fresno bee.com/263/story/566998.html (no longer available as of August 8, 2008, so I guess you’ll have to trust me).
2. District Attorney Elizabeth Egan essentially admitted this. She told the Fresno Bee that the reason the acquittal rate is so high is because the office cannot properly handle their duties — almost half the “least serious” cases are being “lost,” meaning the accused person is found not guilty by a judge or jury. (See Andres Araiza, “Fresno District Attorney Defending Low Trial Conviction” (June 19, 2008) ABC30, found at http://abclocal.go.com/kfsn/story?section=news/local&id=6214072 (last visited August 8, 2008.) ["solution is simple [sic] give her more money”].) By the way, shouldn’t the “least serious” cases be the easiest to handle?
3. Lest someone from the Fifth read this and actually have the sensitivity — and gall — to be offended, you could prevent this by giving reasons (how quaint is that!) when you contradict well-settled law such as that found in People v. Jordan (1990) 217 Cal.App.3d 640, 646 [266 Cal.Rptr. 86]. Postcard denials do not count as “reasons” and provide no confidence that the Court either understands, or is concerned for, the law. In the absence of an opposing brief, there’s not even a hint as to why that California Supreme Court case should not be followed; there is not even the comfort of assuming the Court accepted opposing arguments, because none were submitted.
4. The technical definition of “persuasive authority” is “all primary authority that is not mandatory and all secondary authority.” (John K. Hanft, Legal Research in California (5th ed. 2004) § 1.3, p. 4.) The same text notes that “[p]rimary authority is the law itself….” and “[a]uthority that must be followed is called mandatory authority. Authority that may be followed is persuasive authority. (Id. at §§ 1.2-1.3, pp. 2-3.) These days, the courts pick and choose which law to follow in virtually all cases, making even what it “technically” primary authority merely persuasive. Yet because some courts honestly believe they honor the law, a solid understanding of the law can give a defense attorney a slightly better chance of convincing the court. In other words, as I said, the concept of law — or, more accurately, the concept of the rule of law — still has persuasive power if the attorney’s legal argument is well-grounded in actual laws. It’s no longer the guarantee it should be, but it helps.
5. In one recent trial in which I assisted another attorney, the prosecutor repeatedly argued that Crawford v. Washington (2004) 511 U.S. 36 [124 S.Ct. 1354, 158 L.Ed.2d 177], forbad the introduction of non-hearsay statements the defense wished to introduce. The defense argument was that the statements were not admitted for the truth of the matter asserted and thus were not hearsay. They were offered to show the state of mind of the defendant. The prosecutor told the court that “Those are all barred by Crawford. There’s no evidence here that there’s been some ruling that it’s not barred by Crawford.” As I pointed out to the court, “the California Supreme Court says that Crawford is evidence that there’s been some ruling that it is not barred by Crawford.” (People v. Mendoza (2007) 42 Cal.4th 686, 698 [68 Cal.Rptr.3d 274].) The California Supreme Court actually said these words: “[A]s the high court acknowledged in Crawford, the Sixth Amendment is not implicated by the admission of nonhearsay statements.” (Ibid.) In keeping with what I said above about actual laws now being reduced to persuasive authority only, the judge agreed with the prosecutor. If it were not for the numerous briefs I submitted on the matter, I would chalk this one up to ignorance; because of the briefs, it clearly was a knowing refusal to follow the law.
6. There’s still a lot of leeway for discretion — as there needs to be — even within a properly-functioning system. Thus, in addition to following the law, we need judges who will work within themselves to treat those with less social status similarly to those with more; to treat, for example, someone with a drug problem similarly to someone who abuses their high position to embezzle hundreds of thousands of dollars from taxpayers.
7. I don’t mean — or at least I don’t just mean — rioting in the streets, as Pakistani lawyers did when President Musharraf ignored the rule of law. (See here and here and here.)

When asked what she’d like me to say about her here, she replied,

We’ve been around since 2003, we believe in standards compliant and accessible web sites and Ivan does great graphic artwork. I try to put my English degree to good use (B.A., Trinity Univ., San Antonio, Texas, 1981) by writing solid copy when asked.

Thanks for the help, Joni!

Anyway, as you can see, Probable Cause is well on the way to getting some new skin. I hope to have the design completed and fully integrate it into the rest of the website, complete with its own button, by the end of the week.

And, lastly, a little explanation about “The Really Low Standard of Review.” That subtitle for the Probable Cause blog was chosen for a few reasons.

For one thing, I lost a Petition for a Writ this past week that so far as I or anyone I know can tell, I should not have lost. The Court denied the Petition without explanation in what we call a “postcard” denial.

A “postcard denial” is summary disposition without a rationale—something akin to “The petitioner’s claims are without merit,” or its more tersely worded cousin, “Denied.” Such denials can mask deficient state adjudication, and their confused treatment by the federal courts reflects both divergent conceptions of comity and different
readings of legislative purpose. – Leo Kovarsky, “AEDPA’s (Imaginary) Purposes” (2007) BePress

Frankly, the inexplicable loss on this Petition, particularly without explanation, makes me wonder about the point of being an attorney. From all appearances, the rule of law is dead.

But I’ll address those issues in another post someday. The point here is that when I thought about what happened, I realized that the Standard of Review (and that was one of the topics of the Petition) has dropped even lower than it ever was before. Today, the Standard of Review appears to be: “Do we, the Justices of the Court of Appeal, like the appellant, or do we want him to lose?” If we want him to lose, that’s all that’s required; no amount of settled law or legal reasoning is going to change the result.

Another reason for the choice of subtitle is as a kind of joke on myself. (I mean, other than the one the Court played.) Of all the standards of review — “beyond a reasonable doubt,” “clear and convincing evidence,” etc. — “probable cause” is fairly low. So far as I know, other than “because the Court said so,” the only standard lower than probable cause is “reasonable suspicion.” And, oftentimes, probable cause and reasonable suspicion appear to be the same thing. At any rate, it doesn’t take much to get to probable cause. So the idea here is that, if you’re reading what I write, you don’t have a very high standard for deciding what you’ll spend your time reading!

My only hope is that you’ll find my writing more useful than the Court did with my last Petition.

(And for any potential clients out there, I don’t often lose — maybe that’s why I took this last loss so hard. Hmm…no. I’m pretty sure it was because the Court was wrong, and I hate losing when I’m right.)