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When the Bough Breaks

It has now been a week since two New York police officers were senselessly murdered in their cars by a mentally-ill individual.

“Today two of New York’s finest were shot and killed with no warning, no provocation,” Mr. Bratton said at Woodhull Hospital in Williamsburg, where the officers were declared dead. “They were, quite simply, assassinated — targeted for their uniform and for the responsibility they embraced to keep the people of this city safe.”

I may disagree with Police Commissioner William J. Bratton – perhaps to the point of disagreeing with him over the motive for the murders – but I know of no sane person who would disagree that this was nothing short of cowardly, cold-blooded murder.

I have deliberately held off writing about this sooner for a number of reasons. The primary reason is that I want to figure out the best way to say what’s on my mind, and to try to do so in a way that won’t be misinterpreted by people taking up other positions than that I hold. I’ve seen a lot of rhetoric, mostly heated, over the last week. I do not want to join that, though I admit that in the tussle of some online conversations, it is difficult to stay focused amongst the Stupid being flung about by people of all, shall we say, “persuasions.” (Though no one seems to really be persuadable; our minds are all made up.)

I hope the thoughts I express in this post will make people think as much as they’ve had me thinking over the last week.

In a sense, this post has been brewing for some time. You see, my profession frequently puts me in the position of fighting police officers. That’s not my job, mind you. My job – frequently misunderstood by both foe, and friend, alike – is to so challenge the government’s case against my client, whoevermy client may be, that if my client is convicted, there will be no reasonable doubt that my client has actually done what my client had allegedly done.

It’s not an accident that the last phrases there use “has…had.” Prior to a jury (or a judge, depending on the circumstances) deciding my client’s guilt, the allegations against him are just that: allegations. Only after a conviction, if any, are they proven charges.

In a perfect world, I would never be fighting police officers. Police officers would come to the stand to testify, having made an arrest based upon probable cause, and they would tell the truth regarding that probable cause, and all the facts of which they were aware surrounding the allegations against my client. My job would be to test their statements; yes, to challenge them. But a challenge is not a fight; it is a probing set of questions aimed to ensure that there is no mistake, no misunderstanding, no accidental reading of guilt into innocence. There are a lot of reasons why a police officer might be mistaken, and such mistakes do not necessarily require a nefarious motivation on the part of the officer. Schemas, scripts, stereotypes all have their part to play, as do confirmation bias, biased assimilation, and any number of other less obvious psychological motivators of which criminal defense lawyers must be aware, and try to uncover where they may exist.

Unfortunately, not all police officers see things the same way that I see them. By that, I mean not all officers agree that they come to the stand to tell the truth regarding probable cause, and all the facts of which they are aware surrounding the allegations against my client. Too many police officers come to the stand believing that they do so in order to ensure my client is convicted of the crimes that the officers – or by that time, more accurately, the prosecutor – alleges they have committed. Nor do they understand what my job is.

For that latter failure, I cannot really blame them. I know there are criminal defense attorneys who do not see their work as I see mine. They may engage in unethical behaviors, just as some police officers do. And sometimes, the mindset of a criminal defense attorney doing what criminal defense attorneys are supposed to do can look a lot like criminal defense attorneys trying, unethically, to game the system in ways inappropriate.

Even good guys can sometimes look like bad guys when it comes to challenging police officers – or being a defendant in a criminal case.

More benignly, and perhaps more importantly, people who are challenged, and their challengers, can frequently degenerate into something worse, as many online discussions clearly demonstrate. I am no more immune from this danger than are police officers, however much I do try to keep my eyes open for it in a courtroom.

And so, too often, I end up fighting police officers. I may be fighting them because they don’t want to answer my questions. I may be fighting them because I know they’re testilying. I may be fighting them because they bungled the case from the start, falsely targeted my client, and now won’t stop even when faced with clear and contrary evidence. But I end up fighting them, rather than merely serving my part in the crucible of adversarial testing.

In addition to the above, I am a blogger (obviously). Scott Greenfield, whose name must be mentioned in every post I write, might prefer the term “blawger.” Aside from never having liked that term – much like Scott disliked the term “tweet,” until his recent near-conversion from using “twit” – I don’t see all my posts as being about “law,” strictly speaking. Many, like this one, are about social issues. Sure, the law may be implicated, tangentially-related, but in reality this post is not so much about the law as it is about the place of the police in our society, and our duty to challenge them when they step out of line, even if they, too, occasionally suffer losses. Dead citizens are no less important than dead officers. And calls for a coup against those elected by the people because two cops have been shot by a sick person demonstrate their own sickness.

But my blogging is something I bring up because it, too, puts me in a position of appearing to be one who fights the police. Because this is a criminal defense lawyer’s blog, I am seldom – possibly never, but I am not going back through all my posts to check – in the position of lauding police officers. Most of the time, I am pointing out what police officers are doing wrong, or arguing that police officers have too much power, or complaining that our current power structures more closely resemble a police state than a constitutional republic.

It can look like I hate all police officers. Indeed, more than one person reading my words online – whether here, on Twitter, or on Facebook – has made that accusation.

That is not true, but my occasionally saying that it is not true doesn’t stop true believers believing it. For awhile, whenever I would write a post about malicious miscreants in blue, I would throw in that “not all police officers” did, or do, whatever it was about which I was writing. But I don’t usually say that, because intelligent people should understand that a complaint about some cops is not a complaint about all cops. As Radley Balko put it, in the context of the backlash against protesters after the recent killing of the two NYPD officers,

Or, it shouldn’t be.

The fact of the matter is that we need police officers. I don’t think we need them as much as they, or some others might think we need them. After all, in my town they spend as much time harassing people of color as doing just about anything else. White people reading the news think the police are geniuses because after some “unknown assailant” commits a crime, the police manage to track him down to a particular house, where SWAT, or some similar militarized unit, either takes him into custody, or, increasingly, kills him. I gather that’s the same elsewhere. But it doesn’t take a genius cop to find a bad guy in a minority neighborhood if they go door-to-door, stormtrooper-style, as if the United States did not have a Constitution. If they did, in white neighborhoods, what I know they do in non-white neighborhoods, the problem of police overreach would have been solved a long time ago. Too many times, they aren’t even after an “unknown assailant.” They’re just after someone they’ve labeled – rightly or wrongly, makes no difference to them – a “gang member.”

Meanwhile, if I call them about an actual crime committed against me, the chances are that they’re not going to have time for me; I’ll get, at best, a referral to an online form. At worst, calling the police has only served to make a bad situation even more bad.

And though I may wonder how to go on thinking there are good police officers, when there are so many bad police officers, I read enough to realize that even good police officers are powerless against the bad ones.

Even older police officers –especially those retired, so that many of them never were part of the new militarized police –see problems:

Eric Adams, the Brooklyn borough president and a former police captain, said, “We need to use the pain that all of us are experiencing and turn it into purpose.” He added that “calling for reform is not a call for harm of police officers.”

That is the very reason why we need to continue protesting. When even the police have trouble dealing with the bad apples amongst them, then we cannot quietly sit down, shut up, and simply obey. You can blindly go about proclaiming your allegiance to the police, insisting that there is no real problem only if you are willfully blind. The number of shootings by police officers – justified only by police officers, and those who refuse to hold them accountable – is quite simply outrageous. In a free society, families should not have to give their black children specialized training that no family has to give to white children, in the hopes that those children will make it home at night. That this training is too often ineffective because a cowardly cop feared that, without committing manslaughter, or murder, he or she was not going to make it home that night is just unacceptable.

Numbers don’t lie, however much people may wish to recalibrate them by spinning a new narrative as to their cause. The situation is so bad that even black police officers fear white cops. At some point, you just have to look at this, and realize that something other than threatening coups, or arguing for total submission of the populace – or at least the black portion of it – something must be done.

Gideon once posted a dialog which points out why,

William Roper: So, now you give the Devil the benefit of law!

Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?

William Roper: Yes, I’d cut down every law in England to do that!

Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!

I’ve said on many occasions that the reason the police cannot be above the law, and cannot be allowed to annoy, arrest, beat, and kill people without benefit of trial, is because in that kind of world, there really is no law. The law applies to all of us, or it ends up applying to none of us. As any significant study of history would show, “we, the People,” will only tolerate such injustices for so long.

After that comes chaos. It’s not just “good cops,” or even “bad cops,” who are at risk. Our failure to return to a rule of law, rather than a rule at the whim of individual police officers, is sooner-or-later detrimental to every individual.

Or, to put it in other words:

Rock-a-bye baby, on the treetop,
When the wind blows, the cradle will rock,
When the bough breaks, the cradle will fall,
And down will come baby, cradle and all.

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