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When The Pot Calls The Kettle...

Eric Essman, a self-described left-wing radical, has recently posted several comments on my blog taking exception to my characterizations of Fresno Police Chief Jerry Dyer and claiming I’m being unfair to the police. I want to address the issues raised in his various comments in this blog entry instead of appending individual responses to each comment because, among other things, I hope it will clarify exactly the points I was making in the posts which were attacked — points which I feel may be lost by the distraction the discussion in those comments and my responses to them may create.

Besides, even as I write this, Mr. Essman is posting more comments on other articles I’ve written, making similar points to his prior comments. (I get it, Mr. Essman: you like the police and you don’t care much for what I’m saying. I got that after the second comment. By the sixth, it became overkill. Feel free to take a breather.)

Secondarily, I will be correcting attributions of thoughts, beliefs and attitudes to me which I do not hold and clarifying what I do actually think on those issues.

Lastly, I thought doing this would make a “regular comment” too long and since Mr. Essman’s comments follow two different posts and may come to span more at the rate he’s moving, I’ll hopefully just be able to shift everything here, to one place.

Besides, it saves me trying to write a long response and still being left looking for a topic about which to blog today.

Before I go on, let me state more boldly what I believed to be the point of the various posts to which Mr. Essman takes exception. My point was that certain statements made by Fresno’s Police Chief Jerry Dyer are self-serving and hypocritical. I believe that Dyer’s comments and actions which “inspired” (so to speak) my articles suggest one approach to dealing with “ordinary citizens” and another approach to dealing with police officers under similar circumstances. I hoped that by pointing out the hypocrisy, I would, by extension, cause other people who hold similar views to consider a readjustment for themselves. That may be a task doomed to failure, but if I gave up without trying just because I thought people would not listen, well, I wouldn’t be much of a defense attorney now, would I?

I have occasionally attempted to make my point through the use of religious allusions and metaphors partly because Jerry Dyer has made a big point in our community of his religious beliefs and practices and partly because I live in what has sometimes been described as “the Bible Belt of California.” I also hearken back to blog articles from long ago on a blog I used to maintain which were part of a category I called “Balaam’s Ass.” Based on my own repetitive reading of both the Christian and Jewish texts known as “scriptures,” I have my own take on how someone claiming to embrace the principles therein should act. I make no apologies for expressing myopinions on my blog.

Nevertheless, mocking Dyer’s religion is not my intent. Pointing out the hypocrisy of his comments is my intent. Suggesting that his view regarding accused police officers should be extended to all accused persons is my intent. Arguing that based upon his stated religious views and his own personal experiences he should be more inclined to apply the same standards to “ordinary citizens” accused of crimes that he clearly wishes us to apply to police officers accused of crimes is my intent; in other words, he should be less quick to act as if others who have been arrested, who may have been falsely accused, are guilty before there has even been a trial.

Or, as I read once somewhere,

Judge not, that you be not judged. For with what judgment you judge, you will be judged; and with the measure you use, it will be measured back to you. (Matthew 7:1-2.)

In his initial comment to this blog, Mr. Essman attempted to portray himself as being open-minded, or even-handed, or something along those lines. Apparently believing it would show that he was definitely not biased in Jerry Dyer’s favor, Mr. Essman went so far as to say that he was “[e]ven to the left of most green [sic] party members.” (I am not inside Mr. Essman’s head, so I’m not sure I’m right that he meant this to show his lack of bias. Applying Gricean theories of categorical implicature, it appears to be a logical inference.)

Since then, he’s told me that I’m lying about my own representations regarding why I’ve said certain things; told me that I have some kind of duty to reveal evidence which I’ve never once claimed to have (a bizarre statement even if I had such evidence); ignored comments I’ve made that don’t fit what he wants to say; missed the point I was making; and appeared, more than once, to accuse me of making gratuitous personal attacks upon Jerry Dyer.

Mr. Essman thinks I’m mocking Dyer’s religious faith because I titled the post “Born-Again Defense Evangelist, Police Chief Jerry Dyer.” As I said, mocking his religious faith was not the aim of that title. Mocking his comments about not rushing to judgment when officers in his department were accused of committing crimes was the aim of that title. To that end, I invoked the “Born-Again” phrase. Since Dyer claims to be a Christian and I know that he claims to be a Christian, I cannot know if this title would have occurred to me anyway with certainty. But I believe I would have still used “Born-Again Defense Evangelist” even if Dyer were not a Christian because of the implications the phrase carries concerning radical changes in one’s thinking.

Now, mind you, it is true that I do not think that much of Dyer’s religion based on the information I have about him. But the title was intended to be witty and was chosen by me because the phrase fits what I was criticizing: Dyer’s apparent turn-around on how accused persons should be handled by the press and public.

But perhaps Mr. Essman, like other commenters to my various blog posts who have explained how I think, knows more about my thought processes than I do. Mr. Essman states he is not psychic enough to be “inside the mind of Mr. Dyer,” but he has no problem explaining what’s really going on inside my mind even after I deny that he has it right.

Mr. Essman also takes me to task for my “personal attacks” on Dyer. He’s on a little more solid ground there because it is true that I do not like the Jerry Dyer that I know. (I have never met Dyer. The only things I know about Jerry Dyer come from people I know who know him, from seeing him on TV and from reading about him in the Fresno Bee.) Nevertheless, the statements Mr. Essman takes as “personal attacks” are also not as he portrays them.

For one thing my references to the allegations in his past are intended to highlight that, of all people, Jerry Dyer should be willing to withhold judgment during his press conferences about those who have been accused of crimes. Of all people, Jerry Dyer should be in a position to know what it feels like to be accused and assumed guilty, because to this day there are people who assume his guilt.

And, yes, I admit that I find it plausible to believe Dyer actually did what he was alleged to have done. (Update 2015: As with so many stories that cast a negative light on Dyer, this one has disappeared from the Internet.) Do I know that Dyer is guilty of statutory rape? Nope. Not at all. Never claimed I did. Never claimed to have any evidence of it. I only know that — especially because of attitudes like those expressed by Jerry Dyer which I have criticized — police officers get a free pass that ordinary citizens do not get. So just as Mr. Essman has no problem believing, even after a jury who viewed all the evidence presented to them acquitted him, that O. J. Simpson murdered people, so, too, do I believe it’s possible that Jerry Dyer may have done what he’s alleged to have done, even though he was not convicted of such a crime.

And let’s be clearer about that: It is my opinion that it is possible that the allegations against Dyer are true; I do not know that they are true. And I do not know enough to even say if I believe that they are true. This is why I have never once stated that they are true.

I have primarily, as noted, used the fact that the accusations were made to express my belief that Jerry Dyer should not be so quick to judge others. This is because I believe that if a person has been falsely accused of something so serious, then they, of all people, should not be quick to judge others. That would seem to imply that I at least believe it possible that the allegations are not true. But I don’t know that, either. And I at least once referenced his “past history” in saying that people can change and should be forgiven for past — oh, what shall we call them? — “sins.” My point was that if Dyer did what he had been accused of doing, I don’t think he should never be forgiven for it. (But it might mean he should never have been allowed to be the police chief.)

Bottom line on the question of these past allegations of statutory rape against Jerry Dyer: I have no idea if he did or did not do what he is alleged to have done. I only know that I have used this alleged past of his to make several points about his words and behavior today, regarding people accused of crimes who have not yet been convicted.

Oh, and (again) I also know that whether or not Jerry Dyer was ever convicted — just as Mr. Essman knows that O. J. Simpson not having ever been convicted — does not necessarily tell me that the allegations are false.

(Since I started writing this note earlier today, Mr. Essman has continued to post comments — we’re up to six now — and in his latest he finally got what he originally ignored in my earlier comment to him about someone who likesDyer, but agreed that given the accusations he was not a good choice for police chief. To answer Mr. Essman’s latest post, the view, shared by many people I know, is that certain accusations make a person not an ideal candidate for certain positions. Intelligent people can disagree about this (and do!), but this is one view and I happen to share it. Mr. Essman is at least honest this time when he notes “I assume…[the judge thought] he was indeed guilty of statutory rape.” That’s exactly right, Mr. Essman: You assume. Seems like I’ve heard a saying about that somewhere before. Hopefully this parenthical clears it up: your assumption is incorrect.)

Another “personal attack” to which Mr. Essman takes exception came in my comment made in a response to another Dyer defender. Mr. Essman notes that my comments are “vague to say the least.” He particularly is irritated that I reference “stories,” but “do not tell us what the ‘stories’ are much less give us any supporting evidence for these stories.”

The “stories” to which I refer are stories in the Fresno Bee. Remember, this blog is at FresnoCriminalDefense.com. The articles I write here are intended by me to be regional articles. (I maintain another blog where you may also wish to attack me for my opinions: “Probable Cause: The Legal Blog with the Really Low Standard of Review.”) My comments on this blog assume — particularly when I’m responding to someone who defends a local such as Jerry Dyer — that other people are as familiar with certain facts as I am. But maybe working in a local library doesn’t necessarily mean one reads…the Fresno Bee.

At any rate, the “stories” of racism to which I refer were those which were published locally and which anyone following police affairs in Fresno could reasonably be expected by me to have read.

To those who have not read those stories, I owe no apology for referencing them without repeating them in their entirety herein. I am not a newspaper. I am primarily someone stating my opinion regarding issues of interest (to me, at least) in the local legal community.

I sometimes reference facts, circumstances and happenings that I (apparently mistakenly) think my readers will know about. I will try to be more careful about doing that in the future. (In this case, I could have said, “allegations reported in stories in the Fresno Bee.”) But I don’t intend to write complete self-contained dissertations with a full explanation of all allusions in every blog article I write. (I have enough difficulty getting them out in a timely fashion as it is!)

Finally, let me address Mr. Essman’s irritation over my allusions to Naziism. I did, indeed, make these allusions deliberately.

“Nazi Germany” did not spring fully-formed-and-armored from the forehead of Adolph Hitler. As has been noted in numerous discussions of the history of Nazi Germany, totalitarianism developed slowly and with the “acceptance and acquiescence of good, well[-]meaning and educated people that [sic] allowed it to take hold.”

I see the same thing happening in America today. Will it go down the same path as did Nazi Germany? I seriously doubt it will be the same path. Yet I do believe that the United States of America constituted by our Founders in the famously-named and frequently-ignored or misunderstood “Constitution of the United States” is gone. Probably irretrievably.

Increasingly, we are transformed from a limited government where individual freedom is pre-eminent to limited individuals where the government is pre-eminent. But just as I wouldn’t be much of a defense attorney if I just gave up because no one listened to my calls for equal treatment under the Law, so would I not be much of a defense attorney if I did not try to fight this transformation.

I think a lot about the best way to do this. I haven’t found it. I vacillate between thinking that reasoned argument devoid of emotion might work and thinking that what is happening is so outrageous that I cannot but rageagainst it. I see parallels between the evolution of totalitarianism in pre-Nazi Germany and the evolution of totalitarianism here.

Mr. Essman says,

If they were really as Nazi[-]like as you seem to think you would not have the freedom to pursue the profession you do and would certainly not have the liberty to be writing your blog.

But this is not true. For one thing, Nazi Germany had lawyers. During the evolution of Naziism in Germany, they were increasingly limited in what they were able to do, as the government increasingly ignored the rule of law. Newspapers were still published, although eventually freedom of the press was “suspended.” Again, Nazi Germany did not spring fully-formed and fully-armed from Hitler’s brow. Neither will totalitarianism be able to arise in a democratic republic like the United States overnight.

It begins when, among other things, our increasingly-militarized police forces which are “only following the orders” of judges who no longer recognize constitutional limits on their power gradually strip away more and more of our civil liberties.

And to put the wrap on this article, it becomes ever more dangerous when we hold those police to one standard and “ordinary” citizens to another.

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