RHDefense: The Law Office of Rick Horowitz
Home of Probable Cause: The Legal Blog with the Really Low Standard of Review
The last couple of days, I’ve been pondering something Jeff Gamso wrote, at least partly as a response to a comment I made on his blog. As with a lot of Jeff’s stuff, it’s taking me longer to consider than most things I read. I like that. I like that Jeff makes me think. Too many people in the world don’t seem to spend enough time thinking, or helping others think, these days.
Take these two cops, for instance.
Last night, after a conversation with another attorney about politics, the direction the country is taking, and how the attitudes developing drive law enforcement and the distortions we see in the criminal “justice” system, I published a blog post.
Don’t look for it: I’ve de-published it.
The post was a wonderfully fulfilling piece of venting.
I woke several times in the night, however, thinking about it and considering that it might not be what I wanted for my blog.
What I want for my blog is to use it to explain and to show that what is happening in the world of criminal “justice” is not at all what you — and I’m hoping by “you” that I’m targeting ordinary people; not just attorneys; not just the choir — really want.
When I was growing up, every kid knew this jingle:
Liar, liar,
Pants on fire.
Hanging from a telephone wire.
Nevertheless, on September 21, 2010, Chicago Police Officer Sylshina London did what literally hundreds of police officers do every year in the United States: she helped convict someone by lying to a jury.
The practice — far, far, far more common than the average American could possibly imagine — is so widespread that it even has a name: Testilying. And I’ve written about a number of times, particularly in my article of the same name.
I can’t prove that testilying has become more common than it was in the past — part of the problem with testilying is that it’s frequently difficult or impossible to prove — but it certainly appears that officers are increasingly willing to lie. It is possible that the phenomenon has always been more widespread than I knew before I became an attorney, but even older officers with whom I’ve spoken seem to think it has become more accepted among younger officers.
In any event, it certainly is endemic to the system these days.
I think the reason so many officers lie is, to put it simply, because they believe they can. It’s part of the same ethic I was discussing yesterday, when I talked about officers who ignore the rights of the People because they can, because of the “I am the Law around here” attitude. It’s the same thing that causes police officers generally to ignore the Law’s applicability to them in all things, large or small. (How many times have you seen a police officer speeding, without lights or siren? How many times have you noticed them weaving in and out of traffic, again, without sirens or lights? I even once saw an officer sitting at a red light who, without sirens or lights, proceeded through the light after sitting for a few seconds. At least he looked both ways first. Wish I could do that without fear of a ticket!)
The problem with testilying goes beyond the possibility that innocent people might be convicted. It goes beyond sending someone to jail, or prison, and saddling them with a criminal record. Our system, ostensibly about justice (despite what some attorneys believe, it is referred to as the criminal justice system), depends upon fairness in the procedures used to convict even those who are guilty.
Our society continues to support lying police officers because we don’t see them for what they are: destroyers of justice. In a word, they are criminals. More than that, they are the worst sort of criminals, because their lies destroy that which is basic to a free society.
Think about it. A thief, a robber, even a murderer, takes something from a few individuals. Seldom, however, does their crime actually impact the core structures of our society. A lying police officer, though, tears at the very fabric that makes society possible. Without a system that society can trust to “dispense justice,” or “maintain order,” or “redress grievances” in a fair and honest manner, there is no social contract.
This is because, when officers lie in court, there is no Rule of Law. As the Wikipedia article just linked notes:
The rule of law is a legal maxim that provides that no person is above the law, that no one can be punished by the state except for a breach of the law, and that no one can be convicted of breaching the law except in the manner set forth by the law itself. The rule of law stands in contrast to the idea that the leader is above the law, a feature of Roman law, Nazi law, and certain other legal systems.
When a police officer lies in the courtroom, he is putting himself above the law; an individual is potentially being punished not for a breach of the law, but because the officer doesn’t want him to go unpunished; and the individual is not punished in the manner set forth by the law, which requires an examination of testimony which is supposed to be truthful (remember the Oath: to tell the Truth, the whole Truth?).
The ubiquitousness of cameras is, for some people, beginning to bring to light the lies of police officers, as it did with Officer London’s testilying. This is one reason police officers are fighting so hard to make it illegal for ordinary citizens — we the People – to record what they do. Even news reporters are not safe.
Fortunately, some courts are finding such laws a violation of the United States Constitution.
But we need to go farther than simply recognizing the rights of citizens to tape officers. Jurors need to seriously take to heart the questions asked of them when they go in for jury duty: will you give more weight to the words of a police officer just because he wears a uniform? Many times, jurors will tell you that they won’t. Ironically, the truth (cops aren’t the only ones who lie!) is that usually the uniformed police officer is believed over other witnesses, no matter how unlikely the officer’s version — no matter how many other witnesses’ testimony contradicts the police version.
Sadly, when police are the liars, it’s usually the innocent who are burned.
These days, I have a hard time blogging. For the most part, it seems a pointless exercise — at least, it seems pointless to do the kind of blogging that changes minds and convinces people that we really do need to examine our lives, our attitudes, and our public policy, to understand how we might return to being the great nation we once were — and now only fool ourselves into thinking we still are.
Oh, sure, we’re still a strong country, if strength is measured by how many of our people can kill multiples of someone else’s people before a few of ours must die.
But our kids — and let’s remember, most of our soldiers dying are our kids — didn’t enlist in an effort to show the rest of the world who the real bad assholes badasses of the world are.
At least, I hope that’s not why we have veterans.
One of the more frustrating things about being a criminal defense lawyer is that you get to see how sausage is made justice is undone on a daily basis. Ordinary people don’t see the great breadth of daily and banal violations of due process and other basic constitutional protections now epidemic in the United States.
But it does have repercussions….
Over at Military Underdog, a site I just heard about recently, Eric Mayer posts a couple of Penn & Teller videos about the Criminal Justice System. Apparently, Penn & Teller have some kind of video series called “Bullshit.” (Insert Dave Barry here: “I’m not making this up.”)
Nothing, of course, goes together like our criminal “justice” system and bullshit.
The video, which is split into two parts, is amazing in a number of ways. If I could get people to watch just one video about the criminal justice system, these would be it.
Even so, the video only tells part of the story.
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.
The Law Office of Rick Horowitz provides criminal defense services
in Fresno, Tulare, Kings, Kern, Madera and Merced Counties.
Whatever the Market Will Bear
The phrase “whatever the market will bear” is typically used in economic discussions. Primarily, when discussing how fees for various products or services are set you’ll hear the phrase offered as some explanation for what is really exploitation of the market. It only works well in a non-competitive environment. Adam Smith, the pioneer of political economy who authored An Inquiry Into the Nature and Causes of the Wealth of Nations,
would have considered the type of power — and unrestrained greed — that supports the idea of “whatever the market will bear” as a thing too terrible to imagine.
But then, Smith was passionate about liberty, reason, and free speech. He was a classical liberal, a believer in “natural liberty”, but not quite the free-wheeling laissez-faire libertarian those who frequently co-opt his theories apparently believe him to be.
Smith believed there was a danger in too much concentration of power which naturally occurs on the side of businesses and the rich in an unregulated environment. There are some interesting parallels between Smith’s concerns about the collusive nature of business interests and the problem of our dying Constitution and the consequent perversion of our criminal justice system.
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