Santa Barbara Lawyer

A Letter to the Santa Barbara News Press about the "Crime Blotter"

noreply@blogger.com (sbcrimlawyer) — Thu, 26 Jan 2012 20:31:00 +0000

While I compliment the Santa Barbara News Press for running news stories this last year that upset the powers-that-be of this town - in new and different ways - I have a criticism. And, it is a criticism of many small town newspapers/news-websites I have read over the years. In fact, I have leveled the same criticism at the Daily Nexus (UCSB's newspaper "of record") before. A reader in today's "Letter to the Editor" section of the News Press stated my criticism better than I will ever be able to. I would link to the letter, but the Santa Barbara News Press doesn't make that possible as they don't have a website that is free and open to the non-subscribing public. So, I'll paraphrase the letter and spread further the good message that 'Crime Blotters' are typically pure pro-police propaganda that masquerades as news. Much of what's printed in such blurbs is not at all newsworthy. And, what they don't tell you is that cops decide what to present and they actually write the prose. And, you guessed it, each and every blotter advances their agenda in the following not so transparent ways:

1. There's crime in this town (read: you are under threat).
2. Cops are nearly always successful at solving those crimes (read: you need us to deal with this threat).
3. So called "criminals" are stupid, drunk and/or evil. (read: they're anything but our relatives, neighbors...in fact, they're really not people at all but rather allegorical figurines representing what we hate about our own human vices and weaknesses)
4. Cops are ALWAYS portrayed as mild-mannered Ubermenches (or "supermen"), as conceived by Friedrich Nietzche, just doing an honest job and having to put up with a lot of nonsense from the general public. I won't say the latter part of that isn't generally the case but ALWAYS... really??

Strikingly absent from these blotters are stories about police officers arresting the wrong person, not solving the crime, causing a car accident, discharging their weapon accidentally, tasering someone without good cause, losing their cool (which often goes along with doing or saying something inappropriate or stupid), hitting on an arrestee, not really doing much of anything... ok, you get it. In other words, there is no balance in these in these "news" stories. They are, in fact, completely one sided and yet are not presented overtly as an advertisement nor propaganda. They carry with them the weight and credibility of the newspaper or website in/on-which they are are published. They are, at best, "info-tainment" as a lot of the blurbs are presented with a sense of humor (or at least a cop's sense of humor). It's really not that funny that someone was either the victim of a crime and/or that someone suffered a humiliating experience of being arrested and taken to jail. What these propaganda messages cause is a corruption of our justice system. Because of them, members of the public (e.g., potential jurors) form opinions about the way things are out there based on this form of misinformation. They are not at all receptive to defendants and their defenses. The presumption of innocence is hence rendered a joke. The joke is of course on all of us. We who live in a society where the odds are stacked heavily against the criminal defendant, where law enforcement enjoys impunity for their misdeeds and an undeserved degree of credibility, will sorely regret it when it is one of us (or our loved one) who is falsely accused of a crime. Trust me on that.

MLK Day: No better way to observe it.

noreply@blogger.com (sbcrimlawyer) — Wed, 18 Jan 2012 06:12:00 +0000

This is a must read for anyone with a passion for social justice as well as a means of developing one.

Letter from Birmingham Jail

16 April 1963

My Dear Fellow Clergymen:

While confined here in the Birmingham city jail, I came across your recent statement calling my present activities "unwise and untimely." Seldom do I pause to answer criticism of my work and ideas. If I sought to answer all the criticisms that cross my desk, my secretaries would have little time for anything other than such correspondence in the course of the day, and I would have no time for constructive work. But since I feel that you are men of genuine good will and that your criticisms are sincerely set forth, I want to try to answer your statement in what I hope will be patient and reasonable terms.

I think I should indicate why I am here in Birmingham, since you have been influenced by the view which argues against "outsiders coming in." I have the honor of serving as president of the Southern Christian Leadership Conference, an organization operating in every southern state, with headquarters in Atlanta, Georgia. We have some eighty five affiliated organizations across the South, and one of them is the Alabama Christian Movement for Human Rights. Frequently we share staff, educational and financial resources with our affiliates. Several months ago the affiliate here in Birmingham asked us to be on call to engage in a nonviolent direct action program if such were deemed necessary. We readily consented, and when the hour came we lived up to our promise. So I, along with several members of my staff, am here because I was invited here. I am here because I have organizational ties here.

But more basically, I am in Birmingham because injustice is here. Just as the prophets of the eighth century B.C. left their villages and carried their "thus saith the Lord" far beyond the boundaries of their home towns, and just as the Apostle Paul left his village of Tarsus and carried the gospel of Jesus Christ to the far corners of the Greco Roman world, so am I compelled to carry the gospel of freedom beyond my own home town. Like Paul, I must constantly respond to the Macedonian call for aid.

Moreover, I am cognizant of the interrelatedness of all communities and states. I cannot sit idly by in Atlanta and not be concerned about what happens in Birmingham. Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly. Never again can we afford to live with the narrow, provincial "outside agitator" idea. Anyone who lives inside the United States can never be considered an outsider anywhere within its bounds.

You deplore the demonstrations taking place in Birmingham. But your statement, I am sorry to say, fails to express a similar concern for the conditions that brought about the demonstrations. I am sure that none of you would want to rest content with the superficial kind of social analysis that deals merely with effects and does not grapple with underlying causes. It is unfortunate that demonstrations are taking place in Birmingham, but it is even more unfortunate that the city's white power structure left the Negro community with no alternative.

In any nonviolent campaign there are four basic steps: collection of the facts to determine whether injustices exist; negotiation; self purification; and direct action. We have gone through all these steps in Birmingham. There can be no gainsaying the fact that racial injustice engulfs this community. Birmingham is probably the most thoroughly segregated city in the United States. Its ugly record of brutality is widely known. Negroes have experienced grossly unjust treatment in the courts. There have been more unsolved bombings of Negro homes and churches in Birmingham than in any other city in the nation. These are the hard, brutal facts of the case. On the basis of these conditions, Negro leaders sought to negotiate with the city fathers. But the latter consistently refused to engage in good faith negotiation.

Then, last September, came the opportunity to talk with leaders of Birmingham's economic community. In the course of the negotiations, certain promises were made by the merchants--for example, to remove the stores' humiliating racial signs. On the basis of these promises, the Reverend Fred Shuttlesworth and the leaders of the Alabama Christian Movement for Human Rights agreed to a moratorium on all demonstrations. As the weeks and months went by, we realized that we were the victims of a broken promise. A few signs, briefly removed, returned; the others remained. As in so many past experiences, our hopes had been blasted, and the shadow of deep disappointment settled upon us. We had no alternative except to prepare for direct action, whereby we would present our very bodies as a means of laying our case before the conscience of the local and the national community. Mindful of the difficulties involved, we decided to undertake a process of self purification. We began a series of workshops on nonviolence, and we repeatedly asked ourselves: "Are you able to accept blows without retaliating?" "Are you able to endure the ordeal of jail?" We decided to schedule our direct action program for the Easter season, realizing that except for Christmas, this is the main shopping period of the year. Knowing that a strong economic-withdrawal program would be the by product of direct action, we felt that this would be the best time to bring pressure to bear on the merchants for the needed change.

Then it occurred to us that Birmingham's mayoral election was coming up in March, and we speedily decided to postpone action until after election day. When we discovered that the Commissioner of Public Safety, Eugene "Bull" Connor, had piled up enough votes to be in the run off, we decided again to postpone action until the day after the run off so that the demonstrations could not be used to cloud the issues. Like many others, we waited to see Mr. Connor defeated, and to this end we endured postponement after postponement. Having aided in this community need, we felt that our direct action program could be delayed no longer.

You may well ask: "Why direct action? Why sit ins, marches and so forth? Isn't negotiation a better path?" You are quite right in calling for negotiation. Indeed, this is the very purpose of direct action. Nonviolent direct action seeks to create such a crisis and foster such a tension that a community which has constantly refused to negotiate is forced to confront the issue. It seeks so to dramatize the issue that it can no longer be ignored. My citing the creation of tension as part of the work of the nonviolent resister may sound rather shocking. But I must confess that I am not afraid of the word "tension." I have earnestly opposed violent tension, but there is a type of constructive, nonviolent tension which is necessary for growth. Just as Socrates felt that it was necessary to create a tension in the mind so that individuals could rise from the bondage of myths and half truths to the unfettered realm of creative analysis and objective appraisal, so must we see the need for nonviolent gadflies to create the kind of tension in society that will help men rise from the dark depths of prejudice and racism to the majestic heights of understanding and brotherhood. The purpose of our direct action program is to create a situation so crisis packed that it will inevitably open the door to negotiation. I therefore concur with you in your call for negotiation. Too long has our beloved Southland been bogged down in a tragic effort to live in monologue rather than dialogue.

One of the basic points in your statement is that the action that I and my associates have taken in Birmingham is untimely. Some have asked: "Why didn't you give the new city administration time to act?" The only answer that I can give to this query is that the new Birmingham administration must be prodded about as much as the outgoing one, before it will act. We are sadly mistaken if we feel that the election of Albert Boutwell as mayor will bring the millennium to Birmingham. While Mr. Boutwell is a much more gentle person than Mr. Connor, they are both segregationists, dedicated to maintenance of the status quo. I have hope that Mr. Boutwell will be reasonable enough to see the futility of massive resistance to desegregation. But he will not see this without pressure from devotees of civil rights. My friends, I must say to you that we have not made a single gain in civil rights without determined legal and nonviolent pressure. Lamentably, it is an historical fact that privileged groups seldom give up their privileges voluntarily. Individuals may see the moral light and voluntarily give up their unjust posture; but, as Reinhold Niebuhr has reminded us, groups tend to be more immoral than individuals.

We know through painful experience that freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed. Frankly, I have yet to engage in a direct action campaign that was "well timed" in the view of those who have not suffered unduly from the disease of segregation. For years now I have heard the word "Wait!" It rings in the ear of every Negro with piercing familiarity. This "Wait" has almost always meant "Never." We must come to see, with one of our distinguished jurists, that "justice too long delayed is justice denied."

We have waited for more than 340 years for our constitutional and God given rights. The nations of Asia and Africa are moving with jetlike speed toward gaining political independence, but we still creep at horse and buggy pace toward gaining a cup of coffee at a lunch counter. Perhaps it is easy for those who have never felt the stinging darts of segregation to say, "Wait." But when you have seen vicious mobs lynch your mothers and fathers at will and drown your sisters and brothers at whim; when you have seen hate filled policemen curse, kick and even kill your black brothers and sisters; when you see the vast majority of your twenty million Negro brothers smothering in an airtight cage of poverty in the midst of an affluent society; when you suddenly find your tongue twisted and your speech stammering as you seek to explain to your six year old daughter why she can't go to the public amusement park that has just been advertised on television, and see tears welling up in her eyes when she is told that Funtown is closed to colored children, and see ominous clouds of inferiority beginning to form in her little mental sky, and see her beginning to distort her personality by developing an unconscious bitterness toward white people; when you have to concoct an answer for a five year old son who is asking: "Daddy, why do white people treat colored people so mean?"; when you take a cross county drive and find it necessary to sleep night after night in the uncomfortable corners of your automobile because no motel will accept you; when you are humiliated day in and day out by nagging signs reading "white" and "colored"; when your first name becomes "nigger," your middle name becomes "boy" (however old you are) and your last name becomes "John," and your wife and mother are never given the respected title "Mrs."; when you are harried by day and haunted by night by the fact that you are a Negro, living constantly at tiptoe stance, never quite knowing what to expect next, and are plagued with inner fears and outer resentments; when you are forever fighting a degenerating sense of "nobodiness"--then you will understand why we find it difficult to wait. There comes a time when the cup of endurance runs over, and men are no longer willing to be plunged into the abyss of despair. I hope, sirs, you can understand our legitimate and unavoidable impatience. You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court's decision of 1954 outlawing segregation in the public schools, at first glance it may seem rather paradoxical for us consciously to break laws. One may well ask: "How can you advocate breaking some laws and obeying others?" The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that "an unjust law is no law at all."

Now, what is the difference between the two? How does one determine whether a law is just or unjust? A just law is a man made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distorts the soul and damages the personality. It gives the segregator a false sense of superiority and the segregated a false sense of inferiority. Segregation, to use the terminology of the Jewish philosopher Martin Buber, substitutes an "I it" relationship for an "I thou" relationship and ends up relegating persons to the status of things. Hence segregation is not only politically, economically and sociologically unsound, it is morally wrong and sinful. Paul Tillich has said that sin is separation. Is not segregation an existential expression of man's tragic separation, his awful estrangement, his terrible sinfulness? Thus it is that I can urge men to obey the 1954 decision of the Supreme Court, for it is morally right; and I can urge them to disobey segregation ordinances, for they are morally wrong.

Let us consider a more concrete example of just and unjust laws. An unjust law is a code that a numerical or power majority group compels a minority group to obey but does not make binding on itself. This is difference made legal. By the same token, a just law is a code that a majority compels a minority to follow and that it is willing to follow itself. This is sameness made legal. Let me give another explanation. A law is unjust if it is inflicted on a minority that, as a result of being denied the right to vote, had no part in enacting or devising the law. Who can say that the legislature of Alabama which set up that state's segregation laws was democratically elected? Throughout Alabama all sorts of devious methods are used to prevent Negroes from becoming registered voters, and there are some counties in which, even though Negroes constitute a majority of the population, not a single Negro is registered. Can any law enacted under such circumstances be considered democratically structured?

Sometimes a law is just on its face and unjust in its application. For instance, I have been arrested on a charge of parading without a permit. Now, there is nothing wrong in having an ordinance which requires a permit for a parade. But such an ordinance becomes unjust when it is used to maintain segregation and to deny citizens the First-Amendment privilege of peaceful assembly and protest.

I hope you are able to see the distinction I am trying to point out. In no sense do I advocate evading or defying the law, as would the rabid segregationist. That would lead to anarchy. One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.

Of course, there is nothing new about this kind of civil disobedience. It was evidenced sublimely in the refusal of Shadrach, Meshach and Abednego to obey the laws of Nebuchadnezzar, on the ground that a higher moral law was at stake. It was practiced superbly by the early Christians, who were willing to face hungry lions and the excruciating pain of chopping blocks rather than submit to certain unjust laws of the Roman Empire. To a degree, academic freedom is a reality today because Socrates practiced civil disobedience. In our own nation, the Boston Tea Party represented a massive act of civil disobedience.

We should never forget that everything Adolf Hitler did in Germany was "legal" and everything the Hungarian freedom fighters did in Hungary was "illegal." It was "illegal" to aid and comfort a Jew in Hitler's Germany. Even so, I am sure that, had I lived in Germany at the time, I would have aided and comforted my Jewish brothers. If today I lived in a Communist country where certain principles dear to the Christian faith are suppressed, I would openly advocate disobeying that country's antireligious laws.

I must make two honest confessions to you, my Christian and Jewish brothers. First, I must confess that over the past few years I have been gravely disappointed with the white moderate. I have almost reached the regrettable conclusion that the Negro's great stumbling block in his stride toward freedom is not the White Citizen's Counciler or the Ku Klux Klanner, but the white moderate, who is more devoted to "order" than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice; who constantly says: "I agree with you in the goal you seek, but I cannot agree with your methods of direct action"; who paternalistically believes he can set the timetable for another man's freedom; who lives by a mythical concept of time and who constantly advises the Negro to wait for a "more convenient season." Shallow understanding from people of good will is more frustrating than absolute misunderstanding from people of ill will. Lukewarm acceptance is much more bewildering than outright rejection.

I had hoped that the white moderate would understand that law and order exist for the purpose of establishing justice and that when they fail in this purpose they become the dangerously structured dams that block the flow of social progress. I had hoped that the white moderate would understand that the present tension in the South is a necessary phase of the transition from an obnoxious negative peace, in which the Negro passively accepted his unjust plight, to a substantive and positive peace, in which all men will respect the dignity and worth of human personality. Actually, we who engage in nonviolent direct action are not the creators of tension. We merely bring to the surface the hidden tension that is already alive. We bring it out in the open, where it can be seen and dealt with. Like a boil that can never be cured so long as it is covered up but must be opened with all its ugliness to the natural medicines of air and light, injustice must be exposed, with all the tension its exposure creates, to the light of human conscience and the air of national opinion before it can be cured.

In your statement you assert that our actions, even though peaceful, must be condemned because they precipitate violence. But is this a logical assertion? Isn't this like condemning a robbed man because his possession of money precipitated the evil act of robbery? Isn't this like condemning Socrates because his unswerving commitment to truth and his philosophical inquiries precipitated the act by the misguided populace in which they made him drink hemlock? Isn't this like condemning Jesus because his unique God consciousness and never ceasing devotion to God's will precipitated the evil act of crucifixion? We must come to see that, as the federal courts have consistently affirmed, it is wrong to urge an individual to cease his efforts to gain his basic constitutional rights because the quest may precipitate violence. Society must protect the robbed and punish the robber. I had also hoped that the white moderate would reject the myth concerning time in relation to the struggle for freedom. I have just received a letter from a white brother in Texas. He writes: "All Christians know that the colored people will receive equal rights eventually, but it is possible that you are in too great a religious hurry. It has taken Christianity almost two thousand years to accomplish what it has. The teachings of Christ take time to come to earth." Such an attitude stems from a tragic misconception of time, from the strangely irrational notion that there is something in the very flow of time that will inevitably cure all ills. Actually, time itself is neutral; it can be used either destructively or constructively. More and more I feel that the people of ill will have used time much more effectively than have the people of good will. We will have to repent in this generation not merely for the hateful words and actions of the bad people but for the appalling silence of the good people. Human progress never rolls in on wheels of inevitability; it comes through the tireless efforts of men willing to be co workers with God, and without this hard work, time itself becomes an ally of the forces of social stagnation. We must use time creatively, in the knowledge that the time is always ripe to do right. Now is the time to make real the promise of democracy and transform our pending national elegy into a creative psalm of brotherhood. Now is the time to lift our national policy from the quicksand of racial injustice to the solid rock of human dignity.

You speak of our activity in Birmingham as extreme. At first I was rather disappointed that fellow clergymen would see my nonviolent efforts as those of an extremist. I began thinking about the fact that I stand in the middle of two opposing forces in the Negro community. One is a force of complacency, made up in part of Negroes who, as a result of long years of oppression, are so drained of self respect and a sense of "somebodiness" that they have adjusted to segregation; and in part of a few middle-class Negroes who, because of a degree of academic and economic security and because in some ways they profit by segregation, have become insensitive to the problems of the masses. The other force is one of bitterness and hatred, and it comes perilously close to advocating violence. It is expressed in the various black nationalist groups that are springing up across the nation, the largest and best known being Elijah Muhammad's Muslim movement. Nourished by the Negro's frustration over the continued existence of racial discrimination, this movement is made up of people who have lost faith in America, who have absolutely repudiated Christianity, and who have concluded that the white man is an incorrigible "devil."

I have tried to stand between these two forces, saying that we need emulate neither the "do nothingism" of the complacent nor the hatred and despair of the black nationalist. For there is the more excellent way of love and nonviolent protest. I am grateful to God that, through the influence of the Negro church, the way of nonviolence became an integral part of our struggle. If this philosophy had not emerged, by now many streets of the South would, I am convinced, be flowing with blood. And I am further convinced that if our white brothers dismiss as "rabble rousers" and "outside agitators" those of us who employ nonviolent direct action, and if they refuse to support our nonviolent efforts, millions of Negroes will, out of frustration and despair, seek solace and security in black nationalist ideologies--a development that would inevitably lead to a frightening racial nightmare.

Oppressed people cannot remain oppressed forever. The yearning for freedom eventually manifests itself, and that is what has happened to the American Negro. Something within has reminded him of his birthright of freedom, and something without has reminded him that it can be gained. Consciously or unconsciously, he has been caught up by the Zeitgeist, and with his black brothers of Africa and his brown and yellow brothers of Asia, South America and the Caribbean, the United States Negro is moving with a sense of great urgency toward the promised land of racial justice. If one recognizes this vital urge that has engulfed the Negro community, one should readily understand why public demonstrations are taking place. The Negro has many pent up resentments and latent frustrations, and he must release them. So let him march; let him make prayer pilgrimages to the city hall; let him go on freedom rides -and try to understand why he must do so. If his repressed emotions are not released in nonviolent ways, they will seek expression through violence; this is not a threat but a fact of history. So I have not said to my people: "Get rid of your discontent." Rather, I have tried to say that this normal and healthy discontent can be channeled into the creative outlet of nonviolent direct action. And now this approach is being termed extremist. But though I was initially disappointed at being categorized as an extremist, as I continued to think about the matter I gradually gained a measure of satisfaction from the label. Was not Jesus an extremist for love: "Love your enemies, bless them that curse you, do good to them that hate you, and pray for them which despitefully use you, and persecute you." Was not Amos an extremist for justice: "Let justice roll down like waters and righteousness like an ever flowing stream." Was not Paul an extremist for the Christian gospel: "I bear in my body the marks of the Lord Jesus." Was not Martin Luther an extremist: "Here I stand; I cannot do otherwise, so help me God." And John Bunyan: "I will stay in jail to the end of my days before I make a butchery of my conscience." And Abraham Lincoln: "This nation cannot survive half slave and half free." And Thomas Jefferson: "We hold these truths to be self evident, that all men are created equal . . ." So the question is not whether we will be extremists, but what kind of extremists we will be. Will we be extremists for hate or for love? Will we be extremists for the preservation of injustice or for the extension of justice? In that dramatic scene on Calvary's hill three men were crucified. We must never forget that all three were crucified for the same crime--the crime of extremism. Two were extremists for immorality, and thus fell below their environment. The other, Jesus Christ, was an extremist for love, truth and goodness, and thereby rose above his environment. Perhaps the South, the nation and the world are in dire need of creative extremists.

I had hoped that the white moderate would see this need. Perhaps I was too optimistic; perhaps I expected too much. I suppose I should have realized that few members of the oppressor race can understand the deep groans and passionate yearnings of the oppressed race, and still fewer have the vision to see that injustice must be rooted out by strong, persistent and determined action. I am thankful, however, that some of our white brothers in the South have grasped the meaning of this social revolution and committed themselves to it. They are still all too few in quantity, but they are big in quality. Some -such as Ralph McGill, Lillian Smith, Harry Golden, James McBride Dabbs, Ann Braden and Sarah Patton Boyle--have written about our struggle in eloquent and prophetic terms. Others have marched with us down nameless streets of the South. They have languished in filthy, roach infested jails, suffering the abuse and brutality of policemen who view them as "dirty nigger-lovers." Unlike so many of their moderate brothers and sisters, they have recognized the urgency of the moment and sensed the need for powerful "action" antidotes to combat the disease of segregation. Let me take note of my other major disappointment. I have been so greatly disappointed with the white church and its leadership. Of course, there are some notable exceptions. I am not unmindful of the fact that each of you has taken some significant stands on this issue. I commend you, Reverend Stallings, for your Christian stand on this past Sunday, in welcoming Negroes to your worship service on a nonsegregated basis. I commend the Catholic leaders of this state for integrating Spring Hill College several years ago.

But despite these notable exceptions, I must honestly reiterate that I have been disappointed with the church. I do not say this as one of those negative critics who can always find something wrong with the church. I say this as a minister of the gospel, who loves the church; who was nurtured in its bosom; who has been sustained by its spiritual blessings and who will remain true to it as long as the cord of life shall lengthen.

When I was suddenly catapulted into the leadership of the bus protest in Montgomery, Alabama, a few years ago, I felt we would be supported by the white church. I felt that the white ministers, priests and rabbis of the South would be among our strongest allies. Instead, some have been outright opponents, refusing to understand the freedom movement and misrepresenting its leaders; all too many others have been more cautious than courageous and have remained silent behind the anesthetizing security of stained glass windows.

In spite of my shattered dreams, I came to Birmingham with the hope that the white religious leadership of this community would see the justice of our cause and, with deep moral concern, would serve as the channel through which our just grievances could reach the power structure. I had hoped that each of you would understand. But again I have been disappointed.

I have heard numerous southern religious leaders admonish their worshipers to comply with a desegregation decision because it is the law, but I have longed to hear white ministers declare: "Follow this decree because integration is morally right and because the Negro is your brother." In the midst of blatant injustices inflicted upon the Negro, I have watched white churchmen stand on the sideline and mouth pious irrelevancies and sanctimonious trivialities. In the midst of a mighty struggle to rid our nation of racial and economic injustice, I have heard many ministers say: "Those are social issues, with which the gospel has no real concern." And I have watched many churches commit themselves to a completely other worldly religion which makes a strange, un-Biblical distinction between body and soul, between the sacred and the secular.

I have traveled the length and breadth of Alabama, Mississippi and all the other southern states. On sweltering summer days and crisp autumn mornings I have looked at the South's beautiful churches with their lofty spires pointing heavenward. I have beheld the impressive outlines of her massive religious education buildings. Over and over I have found myself asking: "What kind of people worship here? Who is their God? Where were their voices when the lips of Governor Barnett dripped with words of interposition and nullification? Where were they when Governor Wallace gave a clarion call for defiance and hatred? Where were their voices of support when bruised and weary Negro men and women decided to rise from the dark dungeons of complacency to the bright hills of creative protest?"

Yes, these questions are still in my mind. In deep disappointment I have wept over the laxity of the church. But be assured that my tears have been tears of love. There can be no deep disappointment where there is not deep love. Yes, I love the church. How could I do otherwise? I am in the rather unique position of being the son, the grandson and the great grandson of preachers. Yes, I see the church as the body of Christ. But, oh! How we have blemished and scarred that body through social neglect and through fear of being nonconformists.

There was a time when the church was very powerful--in the time when the early Christians rejoiced at being deemed worthy to suffer for what they believed. In those days the church was not merely a thermometer that recorded the ideas and principles of popular opinion; it was a thermostat that transformed the mores of society. Whenever the early Christians entered a town, the people in power became disturbed and immediately sought to convict the Christians for being "disturbers of the peace" and "outside agitators."' But the Christians pressed on, in the conviction that they were "a colony of heaven," called to obey God rather than man. Small in number, they were big in commitment. They were too God-intoxicated to be "astronomically intimidated." By their effort and example they brought an end to such ancient evils as infanticide and gladiatorial contests. Things are different now. So often the contemporary church is a weak, ineffectual voice with an uncertain sound. So often it is an archdefender of the status quo. Far from being disturbed by the presence of the church, the power structure of the average community is consoled by the church's silent--and often even vocal--sanction of things as they are.

But the judgment of God is upon the church as never before. If today's church does not recapture the sacrificial spirit of the early church, it will lose its authenticity, forfeit the loyalty of millions, and be dismissed as an irrelevant social club with no meaning for the twentieth century. Every day I meet young people whose disappointment with the church has turned into outright disgust.

Perhaps I have once again been too optimistic. Is organized religion too inextricably bound to the status quo to save our nation and the world? Perhaps I must turn my faith to the inner spiritual church, the church within the church, as the true ekklesia and the hope of the world. But again I am thankful to God that some noble souls from the ranks of organized religion have broken loose from the paralyzing chains of conformity and joined us as active partners in the struggle for freedom. They have left their secure congregations and walked the streets of Albany, Georgia, with us. They have gone down the highways of the South on tortuous rides for freedom. Yes, they have gone to jail with us. Some have been dismissed from their churches, have lost the support of their bishops and fellow ministers. But they have acted in the faith that right defeated is stronger than evil triumphant. Their witness has been the spiritual salt that has preserved the true meaning of the gospel in these troubled times. They have carved a tunnel of hope through the dark mountain of disappointment. I hope the church as a whole will meet the challenge of this decisive hour. But even if the church does not come to the aid of justice, I have no despair about the future. I have no fear about the outcome of our struggle in Birmingham, even if our motives are at present misunderstood. We will reach the goal of freedom in Birmingham and all over the nation, because the goal of America is freedom. Abused and scorned though we may be, our destiny is tied up with America's destiny. Before the pilgrims landed at Plymouth, we were here. Before the pen of Jefferson etched the majestic words of the Declaration of Independence across the pages of history, we were here. For more than two centuries our forebears labored in this country without wages; they made cotton king; they built the homes of their masters while suffering gross injustice and shameful humiliation -and yet out of a bottomless vitality they continued to thrive and develop. If the inexpressible cruelties of slavery could not stop us, the opposition we now face will surely fail. We will win our freedom because the sacred heritage of our nation and the eternal will of God are embodied in our echoing demands. Before closing I feel impelled to mention one other point in your statement that has troubled me profoundly. You warmly commended the Birmingham police force for keeping "order" and "preventing violence." I doubt that you would have so warmly commended the police force if you had seen its dogs sinking their teeth into unarmed, nonviolent Negroes. I doubt that you would so quickly commend the policemen if you were to observe their ugly and inhumane treatment of Negroes here in the city jail; if you were to watch them push and curse old Negro women and young Negro girls; if you were to see them slap and kick old Negro men and young boys; if you were to observe them, as they did on two occasions, refuse to give us food because we wanted to sing our grace together. I cannot join you in your praise of the Birmingham police department.

It is true that the police have exercised a degree of discipline in handling the demonstrators. In this sense they have conducted themselves rather "nonviolently" in public. But for what purpose? To preserve the evil system of segregation. Over the past few years I have consistently preached that nonviolence demands that the means we use must be as pure as the ends we seek. I have tried to make clear that it is wrong to use immoral means to attain moral ends. But now I must affirm that it is just as wrong, or perhaps even more so, to use moral means to preserve immoral ends. Perhaps Mr. Connor and his policemen have been rather nonviolent in public, as was Chief Pritchett in Albany, Georgia, but they have used the moral means of nonviolence to maintain the immoral end of racial injustice. As T. S. Eliot has said: "The last temptation is the greatest treason: To do the right deed for the wrong reason."

I wish you had commended the Negro sit inners and demonstrators of Birmingham for their sublime courage, their willingness to suffer and their amazing discipline in the midst of great provocation. One day the South will recognize its real heroes. They will be the James Merediths, with the noble sense of purpose that enables them to face jeering and hostile mobs, and with the agonizing loneliness that characterizes the life of the pioneer. They will be old, oppressed, battered Negro women, symbolized in a seventy two year old woman in Montgomery, Alabama, who rose up with a sense of dignity and with her people decided not to ride segregated buses, and who responded with ungrammatical profundity to one who inquired about her weariness: "My feets is tired, but my soul is at rest." They will be the young high school and college students, the young ministers of the gospel and a host of their elders, courageously and nonviolently sitting in at lunch counters and willingly going to jail for conscience' sake. One day the South will know that when these disinherited children of God sat down at lunch counters, they were in reality standing up for what is best in the American dream and for the most sacred values in our Judaeo Christian heritage, thereby bringing our nation back to those great wells of democracy which were dug deep by the founding fathers in their formulation of the Constitution and the Declaration of Independence.
Never before have I written so long a letter. I'm afraid it is much too long to take your precious time. I can assure you that it would have been much shorter if I had been writing from a comfortable desk, but what else can one do when he is alone in a narrow jail cell, other than write long letters, think long thoughts and pray long prayers?

If I have said anything in this letter that overstates the truth and indicates an unreasonable impatience, I beg you to forgive me. If I have said anything that understates the truth and indicates my having a patience that allows me to settle for anything less than brotherhood, I beg God to forgive me.

I hope this letter finds you strong in the faith. I also hope that circumstances will soon make it possible for me to meet each of you, not as an integrationist or a civil-rights leader but as a fellow clergyman and a Christian brother. Let us all hope that the dark clouds of racial prejudice will soon pass away and the deep fog of misunderstanding will be lifted from our fear drenched communities, and in some not too distant tomorrow the radiant stars of love and brotherhood will shine over our great nation with all their scintillating beauty.

Yours for the cause of Peace and Brotherhood, Martin Luther King, Jr.
Published in:
King, Martin Luther Jr.

Checkpoint Tonight in Downtown SB

noreply@blogger.com (sbcrimlawyer) — Sun, 08 Jan 2012 19:38:00 +0000

http://www.facebook.com/pages/Santa-Barbara-DUI-Lawyer/301973479839272?v=wall

New California Laws 2012

noreply@blogger.com (sbcrimlawyer) — Sun, 08 Jan 2012 04:21:00 +0000

There were 747 new laws in California enacted in 2011. Even more were enacted in 2012. Here are just a few.

Child Booster Seat Law

The new California Booster Seat Law outlaws parents, guardians, or drivers from transporting on a highway in a motor vehicle any child under 8 years old without securing that child in an appropriate child restraint meeting federal motor vehicle safety standards.

The new California law does contain a provision, however, that a child under 8 years of age who is 4'9" inches in height or taller may use a safety belt rather than a child safety seat or booster seat. Law effective January 1, 2012.

California Handgun Open Carry Law

Open-carry citizen handgun ban. Supported by cops who cannot tell whether openly carried weapons are loaded or not. Violators pay $1,000 plus 6 months in jail (misdemeanor). Gun rights advocates vow to carry rifles and shotguns instead. Californians can still get permits for concealed weapons, though it is increasingly difficult. Law effective January 1, 2012.

California Human Trafficking Law

Enforces mandatory disclosure of efforts that companies take to eradicate slavery and human trafficking from their entire supply chains. Being watched as a prototype of future legislation in other states and nations. Law effective January 1, 2012.

California Gay Bullying Law (Seth's Law)

Combats bullying of gay and lesbian students in public schools by requiring school districts to have a uniform process for dealing with gay bullying complaints. Mandates that school personnel intervene if they witness gay bullying. Law effective July 1, 2012.

LGBT Equality and Equal Access in Higher Education Law

State universities and colleges must create and enforce campus policies protecting LGBTs from harassment and appoint employee contact persons to address on-campus LGBT matters. The law includes community colleges statewide. Law effective 2012.

Domestic Partnership Equality Law

Corrects inequalities between domestic partnerships and heterosexual marriages, including domestic partner health benefits sharing. Law effective 2012.

Protection of Parent-Child Relationships Law

Allows courts to consider the relationship between a child and a non-biological parent when considering child rights cases involving birth parents, adoptive parents, and gay or lesbian guardians. Law effective 2012.

Transgender Non-Discrimination Law

Provides public accommodation and protection in education, housing and employment for gender identity and expression. Law effective 2012.

Transgender Vital Statistics Law

Makes it easier for transgender Californians to get a court petition to change their gender on official documents. Law effective 2012.

LGBT Equal Benefits Law

Requires an employer with a state contract worth more than $100,000 to have non-discrimination policies in place for LGBT workers and their partners. Law effective 2012.

Judicial Applicant and Appointment Demographics Inclusion Law

Includes gender identity and sexual orientation of potential judges into the state's Judicial Applicant Data Report to ensure that state courts are diverse. Law effective 2012.

Gay Divorce Law

Provides that if a gay couple got married in California but lives in a state that won't grant them a divorce, the California court will have jurisdiction to grant them a legal divorce. The case will be filed in the county where the gay couple got married. Law effective January 1, 2012.

California Gay History Law

Governor Jerry Brown signed the Gay History Law, which mandates that school textbooks and social studies include gay, lesbian, bisexual and transgender accomplishments. Law effective January 1, 2012.

Internet Sales Tax

Governor Brown signed into law that out-of-state Internet retailers must collect California sales tax on transactions if the retailer has a presence in the state. Law effective Summer 2012.

California Renters Right to Recycling Law

Apartment building landlords will have to start providing recycling services for 7 million California tenants. Law effective 2012. Read "California Renters Recycling Law".

California Reader Privacy Law

Government and third-party snoops can no longer gather information on Internet users' reading, book shopping or ebook using habits without a legal court order. Read "California Reader Privacy Law".

New California Vehicle Laws 2012

New DUI Law

Section 23579 has been added to the California Vehicle Code, which authorizes courts to revoke a driver's license for 10 years if a person is convicted of three or more DUIs. Motorists may apply for reinstatement of their license with the DMV after five years, if the driver installs an Ignition Interlock Device (IID) in their vehicle.

New Double White Line Law

AB 1105 prohibits vehicles from crossing double parallel solid white lines in California, except where expressly permitted.

New Reckless Driving Restricted License Law

AB 520 allows California drivers convicted of reckless driving under Section 23103.5 of the Vehicle Code to apply for a restricted driver's license prior to the completion of their one-year suspension if they meet specific conditions, such as the installation of Ignition Interlock Device in their vehicle.

New DUI Checkpoint Vehicle Impound Law

AB 353 prohibits law enforcement officers from impounding a vehicle for 30 days at a DUI checkpoint if the only offense is failing to hold a valid driver license.

New Laws Already Enforced (2011)

California Male Circumcision Law

Local governments, such as cities and counties, can no longer ban infant male circumcision. Law effective immediately. Read "California Circumcision Law."

California Data Breach Notification Law

When consumer data has been breached, the holder of the data must notify the affected consumers of the occurrence in order to halt identity theft. Read "California Data Breach Notification Law".

California Presidential Primary Law

The presidential primary has officially been moved from February back to June. Read "California Presidential Primary June 5, 2012".

California National Popular Vote Law

All of California's 55 electoral votes will ultimately go to the winner of the popular vote in U.S. presidential elections. Read "California National Popular Vote Law".

Mandatory DMV Organ Donation Answer

The State of California now requires all driver's license and ID applicants to answer YES or NO to whether they want their organs donated. Read "CA Law Forces DMV Organ Donation Answer".

Santa Barbara DUI checkpoints; a misnomer?

noreply@blogger.com (sbcrimlawyer) — Thu, 13 Jan 2011 21:33:00 +0000

Now that the holiday season is behind us, it's time to reflect on Santa Barbara law enforcement agencies' "DUI checkpoints" and, in particular, whether the checkpoints amount to an intelligent use of public funds. First of all, let me clarify that they really aren't strictly DUI checkpoints. Both in name and substance, they are DUI and driver license checkpoints. In California, it is unlawful to have a checkpoint to detect just DUI or just unlicensed drivers. The second point that should be made is that as much as the Santa Barbara law enforcement agencies, as they band together in the "Avoid the 12" campaign praise the checkpoints as an effective deterrent of driving under the influence, they know better than anyone does that the checkpoints are ineffective at detecting DUI drivers as compared with other methods of detection (namely, "saturation patrols"). I won't take the time to cull and study the hard data, but my sense from having read article after article about checkpoints, and from my work as a dui defense lawyer in Santa Barbara for over 10 years, where I regularly study the checkpoint arrest data made available to me by the Santa Barbara District Attorney's Office, is that checkpoints yield, on average, between one and two DUI arrests each. Sometimes they don't arrest anyone for DUI at all. Goose egg. The number of vehicles that pass through any given DUI checkpoint in Santa Barbara is often in the high hundreds or even over 1,000.

So, if DUI (aka DUI/license) checkpoints in Santa Barbara are ineffective at detecting DUI, why have them? Well, that's a fair question to ask local law enforcement. Is the deterrent value really more powerful with a checkpoint than the press releases warning of the checkpoint and reporting the arrest results after the fact? I don't think anyone knows. What one might say is that without the news of a checkpoint, the news media wouldn't publish a press release having to do with DUI and the associated dangers of arrest, accidents, etc. I disagree. The new news media, in the digital age, reports everything that law enforcement puts out there. Edhat, the lead news blog in Santa Barbara, apparently does this without any evaluative/editorial decision-making whatsoever. Santa Barbara Police could send out a press release that the officers issued three parking tickets last Sunday, along with the names of those cited, and Edhat, per their policy (or maybe lack thereof) would probably publish it. The other local news outlets would not necessarily run a story or blurb in reaction to every single SBPD news release, but I don't think, on the whole, the police would say that they are ignored by the local news media when they issue warnings to the local population, in the form of press releases, about the dangers of drinking and driving and their decisions to increase personnel on patrol. I've seen many a story, and blurb, about that.

Pueblo, a local political action group, has spent a lot of time and energy educating the public about what they see as selective enforcement in this realm. A dirty little secret is that Santa Barbara DUI checkpoints are primarily motivated by two things: (1) the infusion of state and federal grant money ear-marked for this purpose and (2) the revenue generated by impounding the vehicles of unlicensed drivers. The fees, fines and proceeds of sale at auction of these vehicles generates a significant amount of revenue for law enforcement, the courts and, yes, the local tow yards. Ever since California started requiring proof of legal status before issuing drivers licenses (back in the 90's), more and more people have been driving while unlicensed in our community. These, of course, are largely the undocumented laborers all around us. They are the gardeners, the housekeepers, chefs, cooks, dishwashers, painters, skilled and unskilled construction workers, and "heavy lifters" out there. They scrounge together what little money they have to put food on their tables and buy jalopies to get to their work sites from Goleta, Hope Ranch, down to Montecito and beyond only to have local law enforcement stage checkpoints that make grand claims about protecting the public through this method. They cite dusty statistics while claiming that unlicensed drivers account for the great majority of traffic accidents to rationalize the economic suffering imposed on undocumented drivers by these checkpoints. They do so in reckless disregard of the fact that these statistics do not reflect the new realities of who make up this bigger than ever population of unlicensed drivers. In fact, there is more than enough reason to suppose that undocumented aliens are more careful drivers than the rest of the population because they are often mortified at the possibility of getting stopped for a minor traffic violation and are, therefore, less likely to commit one. While a licensed driver might get a ticket, an undocumented and, therefore, unlicensed driver might lose their vehicle and, worse yet, be deported and excluded from the U.S. permanently. It's a good time to discuss further the problems posed by DUI Checkpoints and, in particular, the problems they are directed at solving, the problems they don't really solve (but are claimed to) and the problems and injustices (in they eyes of many) that they cause.

Some noteworthy New Laws in California for 2011

noreply@blogger.com (sbcrimlawyer) — Tue, 28 Dec 2010 23:38:00 +0000

Non–Vehicle Code infractions can now be dismissed under PC 1203.4a. This is the remedy commonly known as expungement.
The threshold for felony grand theft increased from $400 to $950.
“Petty theft with a prior” is now, unless the defendant has a strike or sex offense prior, “petty theft with three priors.”
Marijuana possession, less than an ounce, is now an infraction.
Limited immunity from prosecution for certain low-grade alcohol-related offenses granted to persons under the age of 21 who are reporting that they or someone else are in need of medical assistance.

Psst! Who invited the cops?!

noreply@blogger.com (sbcrimlawyer) — Thu, 09 Dec 2010 16:13:00 +0000

Whether you like it or not, the County Board of Supervisors, in faithful service to their curmudgeon constituency, has invited the cops to your next social gathering. I first wrote in opposition to the very controversial "Social Host Ordinance" (SHO) in June of 2008. In spite of the fact that the clear majority of Isla Vistans oppose this ordinance (and maybe that's because it's widely believed that Isla Vista is the only place where the SHO will be enforced with any regularity), it was enacted into law on December 1. As I stated previously, the police in Isla Vista and elsewhere are not without tools to suppress underage drinking. They have numerous statutes at their disposal that enable them to detain people that are in public (or in some cases in the public view) and, at the very least, can seize and pour out the drink with impunity. Most don't stop there, however. The Isla Vista Foot Patrol issues thousands of tickets per year for minor in possession, open container in public, and related law violations. Those under 21 are booked into jail for public intoxication at the drop of a hat. And let's not forget that they were already barging uninvited into apartments and houses in Isla Vista long before the SHO was first proposed. Accounts of frequent and deliberate Fourth Amendment violations by the Isla Vista Foot Patrol are common.

The truth is cops barge in to private spaces because they can get away with it, with or without a SHO. Any true accountability for doing so when the sum total of damages are usually hurt feelings and the replacement value of a beer is and was non-existent. The big difference now is that they will, under color of the SHO, have an easier time holding those accountable who are furnishing alcohol to those under 21 in smaller gatherings. There was never really any difficulty holding the big party throwers (i.e., hosting 10 or more people) accountable for serving alcohol to minors because the cops could either walk through an open door and/or demand to speak to the host in order to enforce a noise violation and the exception to the warrant requirement would sprout up during that encounter. Now what they are able to do, under color of the SHO, is to enter any apartment where there is any noise or other evidence noticeable from the outside that suggests there is a "social gathering" going on inside. That's pretty broad (read "overbroad"). It doesn't have to be a raging party. Two people sharing one beer is a party. They could both be 21 or older but the cops are still, under color of the SHO, allowed to barge in to sniff drinks and check ID's and whatever contraband they see in plain view is fair game. A typical reaction of acceptance of the Government over-reaching might be: 'well, even the cops understand that underage beer consumption and college are synonymous and that they will, therefore, use good judgment on deciding when to enforce this law'. I'm sure most cops will. However, what this law does is enable cops with poor judgment to rampantly intrude into peoples' private spaces in ways that will deter even legal conduct. Giving that much 'unbridled' discretion to a rank and file patrol officer is disfavored by the California Supreme Court and may not otherwise withstand Constitutional scrutiny. For example, according to the holding of the California Appellate Court in People v. Hua, police officers may not enter a dwelling absent a warrant simply because they believe that a non-jailable criminal offense is taking place inside.

I hereby invite anyone who has a case involving the enforcement of the SHO to contact me and I will consider handling the matter pro bono.

No on Measure S

noreply@blogger.com (sbcrimlawyer) — Fri, 29 Oct 2010 15:00:00 +0000

If we build it, they will fill it. That's the slogan that says it all. Some of you will go into the polls buying into the dogma that we need a new jail. Granted there are some problems with the current situation, but spending tens of millions of dollars to increase, dramatically, the number of jail bunks is not the way to go. As any proud liberal would, I would urge that we spend the same money on the public schools, job training, mental health services and drug rehabilitation. If we did, we wouldn't need to boost our penal system. We would be a better, more productive and more utopian society. We wouldn't have to warehouse our fellow community members, and pretend as though that actually solves any problem. Incarceration may prevent the rare act of violence by a dangerous person, and act as a deterrent of crime for those of us who fear going to jail, but it creates as many problems as it solves. Jail should be a place for violent people who are not mentally ill, and that is a very small population; well beneath the number of jail beds that are currently available. And this is the point: If we have more jail beds to fill, the authorities will fill them up fast; guaranteed. People will be going to jail, and serving longer sentences, for the pettiest of crimes. I used to work in as a public defender in Santa Cruz, a place where there were many more jail beds per capita. There, as compared to Santa Barbara, people frequently went to jail for misdemeanors such as driving on a suspended drivers license for lengthy periods. In other words, the County would do the dirty work for the DMV and take what were very often poor people on their way to work and throw them in the slammer for six months to a year. I don't know about you, but I would rather not pay to house such people. Nor do I particularly want to live in a community where we treat our fellow human being in such a cruel and unforgiving fashion.

If you doubt my motive/agenda at all, consider that when people start facing longer jail sentences, my services will be in much higher demand. I stand to economically benefit if the measure passes. I would rather it didn't.

Quiet, I'm driving!!!

noreply@blogger.com (sbcrimlawyer) — Mon, 01 Feb 2010 16:03:00 +0000

In June of 2008, I issued my "final" warning that the hands-free (i.e., don't drive while talking on the cell phone) law would lead to more traffic stops. Well, that ended up being true. Police officers are handing out lots tickets. What I didn't predict was that traffic accidents would be reduced as the result of it. And, well, to the extent it has been studied, there is no evidence that the law has had any such effect. Maybe that's because there is no evidence that the use of cell phones while driving has led to more serious traffic accidents. To find proof of this, look no further than the number of traffic fatalities in the United States over the last 15 years. This is the same 15 years during which the use of cell phones in moving vehicles went from near zero to nearly everyone. There has been no increase in traffic fatalities per capita. So, who are the gainers from the law? Well, as predicted, Blue Tooth, motorola, and the cell phone industry who saw no decline in sales of phones but a sharp increase in sales of ear-phone type accessories. I, for one, must have purchased about 20 such gizmos in the last few years, and I still can't find one that is altogether convenient. The Government also gains by imposing fines for now unlawful activity. And, let's not forget about the cell phone etiquette police. These are the same folks who wish that talking on a cell phone in a public place at the top of your lungs because the connection is weak (and/or because you are so self-absorbed and inconsiderate that you can't imagine that those around are extremely annoyed) ought to be illegal. Okay, I admit it, I'm one of them. Now the act of driving with a cell phone pressed to your ear, which I admit I did plenty of before it became unlawful, is all the more irritating. When you see someone doing it you can't help be hit with thoughts like, "this person is oblivious to what is going on around them" and a new one, "this person is disregarding the law (at my personal expense!)". These, of course, are the emotional responses to the conduct, but the statistics do not prove that it is anything more than bad manners.

Encouraging?

noreply@blogger.com (sbcrimlawyer) — Fri, 09 Oct 2009 18:22:00 +0000

“We’re looking into reviving the idea of a sobering center in I.V.,” Farr said.

This is a quote of Santa Barbara County Supervisor Doreen Farr that appeared in the Daily Nexus today. I am glad the idea is not completely dead, but I'm not sure that this isn't simply more lip-service favoring the concept intended to passify those of us who feel very strongly that a sobering center is an absolute must. We don't need to watch another few hundred people in IV be deprived of their civil liberties this Fall; not to mention, as the article makes clear, take IV Foot Patrol officers out of service (of IV that is) for the couple of hours that it takes to process a single needless Public Intoxication arrest. Clearly they have better things to do with their time. A sobering center could save the officers thousands of hours in a year in terms of shortening the time it takes to take someone, who is not being a pain in the neck, off the street to a place of safety. It would also save the jail, the court, the d.a., and (yes) me, lots of work. And of great interest to the students and parents of SBCC and UCSB, it would help ensure that the people who are investing big bucks (and lots of time) getting their degrees wouldn't graduate with the sandbag of a criminal conviction (or a record of a booking, for that matter).

As I've written, repeatedly, Penal Code section 647(g) makes a "civil commitment", when feasible, State policy.

Like it or not, more than 90% of UC and SBCC students will drink to excess at least once (if not weekly) during their academic career. This is a societal problem that will take more than punitive tactics by local law enforcement to solve. Criminalizing our most promising societal contributors for socially acceptable (if not appropriate) conduct makes no sense and is arguably against State policy. A sobering center is a viable and practical solution to the public safety, fiscal and civil liberties questions this societal problem raises. It's time for more than lip-service.

Huge win for truth and justice

noreply@blogger.com (sbcrimlawyer) — Fri, 10 Jul 2009 18:30:00 +0000

Yesterday, in a Supreme Court case called People v. McNeal, the California Supreme Court ruled that competent evidence of variability of alcohol vapor in breath to blood alcohol content across the population may be admitted in cases where there is minimal showing of impairment. This has huge ramifications for innocent people. For years I have been telling people the sad story that there is no justice in California for DUI arrestees who happen to produce more alcohol vapor in the breath and were blind to this reality (of course) when they choose the more convenient method of blood alcohol testing: breath (not blood). Driving with any amount of alcohol in your system is to be avoided. However, convicting people 21 and older of misdemeanors who have not actually driven with a .08% BAC or greater, who are not impaired by alcohol, cannot be tolerated. At long last the Supreme Court is on board. Kudos to the brilliant lawyers who brought about this change!

Observation of marijuana use does not justify entry...

noreply@blogger.com (sbcrimlawyer) — Wed, 29 Apr 2009 21:12:00 +0000

A California appellate court recently held that officers violated the 4th Amendment to the United States Constitution where they entered an apartment against the consent of the legal occupant after they smelled a "distinct odor" of burnt marijuana and saw an individual inside putting a pipe to his lips. People v. Hua (2008) 158 Cal.App.4th 1027.

If you find yourself in this predicament, the word to the wise is:

"Just say no [to the cops]". And, as I always do, I will caution anyone who believes that their Constitutional rights are being violated that they can't hope to win a motion to suppress evidence in the field. While being clear about the fact that you are not waiving your Rights is important, nothing about that suggests that you should kick the officer in the shins (or even be impolite to him or her). One audible, intelligible "No Thanks" should suffice. Screaming "no!" repeatedly in anger and/or frustration promises to bring on more unpleasantness and possibly new and different criminal charges. Just submit to their color of authority and wait until your day in court to seek the remedy to which you are entitled.

Be heard, Isla Vistans!

noreply@blogger.com (sbcrimlawyer) — Wed, 08 Apr 2009 23:32:00 +0000

Don't wait until you're in jail to complain about the proposed Social Host Ordinance.

Here's an email in circulation that I will do my part to publicize because I agree with it wholeheartedly:

Help Protect Residents of IV TODAY!

Ask SB County Supervisors to Vote NO on the proposed Social Host Ordinance (i.e. Law)

WHAT: Board of Supervisors Hearing re: proposed Social Host Ordinance
WHEN: Tuesday, April 21, 2009; if you can’t attend, send them an email NOW! (talking points and email addresses below)
WHERE: Board of Supervisors Hearing Room (105 E. Anapamu Street, 4th Floor)
Background:
1. The ordinance is meant to address underage drinking. It would apply county-wide, including in Isla Vista (which already has a similar, but less intrusive, ordinance).
2. Any time at least 5 people are together, and at least 2 are under 21, the gathering can be subject to the ordinance.
3. If a minor at one of these gatherings has alcohol, regardless of whether the host of the event knows or should know the minor has alcohol, the ordinance is violated.
4. When there is a violation, law enforcement can disperse the gathering, and fine anyone who lives at the residence or is responsible for the gathering.
5. Multiple offenders can be held responsible for the cost of law enforcement response, up to $500.
6. A person is a repeat offender, and therefore subject to increased fines, if the ordinance was violated at the same property within 12 months, regardless of whether the violation was from previous tenants or property owners.

WHAT YOU CAN DO:
1. Call and email your Supervisors

2. Pass this email on to as many residents of Santa Barbara County (which includes IV) as you can

3. Attend the 4/21 Board hearing. Call 568-2240 on or after 4/15 to confirm exact time
Urge the Supervisors to:

Vote No on the Proposed Social Host Ordinance

Talking Points:

· The ordinance is a bad idea because it gives law enforcement too much power to unfairly target students who are behaving in a responsible manner.

· Also, because the ordinance allows for holding hosts responsible for law enforcement response costs, people will be discouraged from contacting law enforcement or paramedics when serious incidents occur at parties or other gatherings where alcohol is present.

· Finally, because the County already has sufficient means to dissuade underage drinking through laws already on the books, the ordinance is unnecessary.

1st District: Salud CarbajalPhone: (805) 568-2186E-mail: SupervisorCarbajal@sbcbos1.org
2nd District: Janet Wolf, Vice Chair Phone: (805) 568-2191E-mail: jwolf@sbcbos2.org
3rd District: Doreen FarrPhone: (805) 568-2192 E-mail: dfarr@countyofsb.org
4th District: Joni Gray Lompoc: (805) 737-7700E-mail: jgray@co.santa-barbara.ca.us
5th District: Joseph Centeno, Chair Santa Maria: (805) 346-8400 E-mail: jcenteno@co.santa-barbara.ca.us

So what's the big deal?

noreply@blogger.com (sbcrimlawyer) — Wed, 18 Feb 2009 06:43:00 +0000

Thousands of arrests are made in Isla Vista each year, making it one of California's "high crime" areas. However, a good deal of the arrests have to do with college-aged people ingesting and possessing alcohol, street drugs (e.g., marijuana, cocaine, methamphetamine, ecstasy, psilocybin, LSD, heroin, and more) and prescription medication. Sales, furnishing and transportation of these substances account for a good deal of the more serious arrests. The local jail is over-crowded which creates a perception of leniency due to the fact that there is little or no room for those with minimal criminal history who are facing lower grade charges . Yes, indeed, the jail penalties for this class of offenses, and many others, are not as severe as they are in many (or perhaps most) other jurisdictions AND many people are released back into the community on their own recognizance pending the conclusion of the case. Another factor it seems is that of social acceptance. Yes, it happens to be commonplace to get arrested in Isla Vista. Everybody who has lived in IV has had a friend or a roommate arrested; and all you have to do is walk around on a weekend night on Del Playa and you'll see tons of young clean-seeming college students getting patted down, cuffed, sat on the curb and hauled away by the Foot Patrol. Those same kids will usually be released soon thereafter and then might have to pay a fine and be on probation. So, what's the big deal?

You won't have to go far in Isla Vista to find a young kid (sorry to say it, but it's usually a young man), who has all kinds of opinions of what the larger meaning of it all is and what the recently arrested person should do about it. After all, they will tell you, proudly, that they have already been arrested three times, and look!, they're still standing. They're still in school. They didn't spend any appreciable time in jail. Or, perhaps even more compellingly, they did, but now that they've suffered that terrible fate, they know exactly how to avoid having that happen again should they be arrested again. These folks are akin to what we in the trade refer to as "jailhouse lawyers". The only differences are that these guys are typically out of jail on good behavior (probation) or are out of jail, pending trial, on their own recognizance. A few of them have posted bail. These folks are full of wisdom and know just as much as, if not more than, any smooth-talking lawyer in a cheap suit, right?

Uh, no, wrong.

Whatever the motive - perhaps it's for the same reason a surfer might want to show you the scar from where the shark (okay, harbor seal) bit them - there is a tendency to minimize the longterm significance of an arrest in Isla Vista; a "normalization", if you will. Everyone's doing it. It's a badge of honor. It's how you earn your IV street cred, right?

Uh, no, wrong.

This is the way I look at - and I am not just talking to the population of Isla Vista when I say this: when you get arrested, society is attempting to marginalize you; to render you a criminal. Yes, a criminal. Somehow people think that criminals are the "other" and I, myself, could never be considered a criminal. Perhaps it is the mass media (including the news, TV shows like CSI and Law & Order as well as movies and crime novels) that always give us permission to think that certain people are just not physically capable of being considered criminals. They are just too "nice", "good-natured", "well-raised", "well-off", "good looking" (and yes, i have definitely heard at least one person say, or imply, such an asinine thing), "well-meaning", "white" etc. to ever be considered a criminal, right?

Uh, no, wrong.

Everyone, and I do mean EVERYONE (present company NOT excepted) is inherently capable of being rendered a criminal and it is almost necessarily going to consist of two voluntary acts: (1) the act which made the police think that he or she committed a crime and (2) the act of pleading "guilty" or "no contest" to a criminal charge. It takes seconds to plead to a misdemeanor, and just 20 minutes or so to plead to a felony. Seriously, that's what is happening each and every time the cuffs get slapped on: Society is mounting an attack against your good name. Society is seeking put you in the underclass: The class of persons who have trouble getting taken seriously and who people (particularly little old ladies who live in the suburbs) are afraid to be around. What else? To be a criminal is to have an uphill battle getting a job where you thought you were a shoo-in. Being a criminal means getting rejected from colleges and graduate programs. Being a criminal means that you will likely be denied scholarships, financial aid and perhaps it may even affect your credit score. Being a criminal means that your life will be even more difficult in a tough economy because you WILL have trouble getting a job (no matter what your qualifications). You may have trouble getting a professional license. As a criminal you will have a tougher time finding a place to live as lot of landlords will reject your rental application out of hand. And, perhaps you haven't considered that being a criminal will make it more likely that someone can win a lawsuit against you because you won't be considered a strong witness (considering your criminal history) and that you will have a tougher time bringing a civil claim against someone else for the same reason. Becoming a convicted criminal can greatly diminish, if not destroy, the value of your degree; the degree for which you are working so hard and paying so much. These are things that the "jailhouse lawyer" hasn't told you. So, you ask, what do you do to avoid becoming a criminal? Talk to a criminal defense lawyer.

Bad Cop, No Donut?

noreply@blogger.com (sbcrimlawyer) — Mon, 09 Feb 2009 15:45:00 +0000

Does the recent U.S. Supreme Court decision, Herring v. U.S., signal the end of the "exclusionary rule"? (For those who aren't students of criminal procedure, the "exclusionary rule" is what keeps evidence that was obtained in violation of the U.S. Constitution from being used against a criminal defendant at trial and, if applied, often results in the entire case against them being dismissed).

Perhaps, yes. It is precedent for the idea that the criminal does not necessarily go free where the constable blundered or, as in this case, where the constabulary erred. The warrant upon which Mr. Herring was seized (i.e., "pulled over"), was entered into the computer erroneously, but not in bad faith, by someone other than the officer that pulled him over. Okay, so what? Well, according to the majority, the purpose of the exclusionary rule was to deter intentional misconduct by law enforcement. I guess I agree with that, but here's the point of separation. When we speak of institutions, we can find intent on the part of the higher ups (such as chiefs, and other administrators), or a more nebulous form of intent on behalf of the entire institution where they have failed to put systems in place which will limit the degree of intrusions into the private lives of law abiding people. Not telling police departments, as the Supremes could have, that their failure to develop and implement systems (through software, double-checking by human beings, etc.) to better ensure that information entered into the widely available databases may result in bad guys going free was an opportunity squandered. Incidentally, implementing such systems would also save a lot of valuable law enforcement time by making sure that their time is not wasted barking up the wrong trees. So, everybody could have won: The general public could have won, the police (in a broader sense) could have won, and an occasional undeserving criminal defendant could have won. The latter, according to the ingenious Warren Court, was a worthwhile price to pay for a freer society. The over-arching principals in force are that (1) there is no perfect solution to the problem (and, yes, to my conservative friends who don't know what it's like to be jacked up by cops for no reason, there IS a problem) and (2) that the American values of privacy and freedom that serve to allow us all to live without a rational worry that we will be subjected to the random and otherwise unfettered curiousities of law enforcement are worth sacrificing a small amount of security.

Another discussion that has emerged in the wake of Herring is: "what else might we do to deter police misconduct which violates the U.S. Constitution?". Here are some thoughts:

1. Deprive the offending officer of a paycheck for every violation.
2. Make the offending officer where a patch on his uniform that reads, "I violate people's consitutional rights".
3. Fire the offending officer.
4. Make the offending officer pay money damages to the defendant.
5. Exclude "some" of the illegally obtained evidence. (Hmmm...just the wrapper?)
6. Make the jury aware of the violation and tell them that they may decide to acquit the defendant on that basis. (That might work...maybe...uh, in a marijuana possession case.)

My experience teaches me that prosecutors, judges and cops hate the exclusionary rule so much, that they'll do nearly anything to get around it. What we see in reaction to it are very narrow readings of the rules, and usually a tortured reading of the facts (a very common work-around is to argue that officer didn't actually pull the person over for a dubious legal reason, they pulled them over for a totality of dubious reasons which, altogether, amount to one legal reason) . The less honest police officers will lie to cover up their violation. It's not at all hard to imagine how that happens. If they were lazy about understanding and respecting the Fourth Amendment, who's to say that they won't be just as lazy about understanding and respecting their duty to be honest (when under oath) and otherwise? A rule which does not burden the public safety as much as the "exclusionary rule" might solve this problem. However, would a cop lie to keep his job? Would he lie to avoid public shaming? Would he lie to save money? Would a judge or prosecutor avoid engaging in intellectual dishonesty in order to protect the cop from these various punishments? I say, let's not bother finding out.

New 2009 Public & Traffic Safety Rules

noreply@blogger.com (sbcrimlawyer) — Thu, 08 Jan 2009 21:55:00 +0000

It's that time of year again. New laws.

As far as traffic safety goes, the legislature has come up with the following new laws:

Text Messaging (SB 28/Simitian) This new law makes it an infraction to write, send, or read text-based communication on an electronic wireless communication device, such as a cell phone, while driving.
DUI Probation License Suspension (AB 1165 Maze) A change in the driving under the influence (DUI) law creates a new authority for DMV to administratively suspend the driver’s license for one year under a zero tolerance standard. The new law authorizes law enforcement to issue a notice of suspension and impound the vehicle of a person who is driving with a blood-alcohol concentration (BAC) of 0.01 percent or greater while on court-ordered post-DUI probation.

(taken almost verbatim form the California DMV's website).

Maybe by 2010 they'll think to specifically prohibit emailing, playing with your iPhone's GPS feature, video games, and taking photos of the marquis which warns against texting while driving...uh, while driving. None of the above, perhaps STILL legal activities, are adviseable, irrespective of the absence of artfully worded legislation and legislative foresight.

More to follow after I assign my law clerk to research Proposition 9 and other laws affecting the public safety and the rights of the accused.

Off topic: Or is it? Trains... Yes, Trains!

noreply@blogger.com (sbcrimlawyer) — Thu, 04 Dec 2008 02:33:00 +0000

Having recently traveled in Germany (a country with a wonderfully developed public transportation network; including an excellent train network), and having spent time with my 4 year old boy (who LOVES trains), I am convinced that trains are the answer to much of what ails us as a society. I'm dead serious. We are a society run amock with cars. Cars are an extremely inefficient, polluting and dangerous way to get around compared to trains. I say this at the risk (admittedly astronomically small) that I may suffer economic losses associated with a massive societal transformation toward mass transit over personal automobiles. Why? Well, because a good deal of my earnings have to do with driving; mostly driving under the influence of intoxicants; principally alcohol. If mass transit were competent to get people home after a night out where they may have tipped at least one too many, then I would suffer a serious economic hit. However, I would be happy to if it meant that our society were to do what Western Europe and parts of Asia have done already; pour money into public transportation and leave our domestic auto industry to either adapt themselves to that, or go bankrupt.
The benefits of a conversion to mass transit over automobiles would be limitless. Less dependence on foreign oil (clearly), less air pollution (clearly), fewer traffic fatalities (clearly), incerased productivity (particularly in today's society where work can get done with a PDA or laptop; not while driving an automobile), and, perhaps, better relations among divergent economic and ethnic groups (as is seen in large cities) due to the fact that people from all walks of life sit and stand side by side, as equals, in close quarters on trains and buses instead of, as here in California, whizzing by one another in their cocoons, never to share space, or a conversation, with someone who is not just like them. What's the downside? Those who love cars and driving would still have the opportunity to do so, in fact the roads would be less congested. Support all bond measures and politicians that move us, and our public funds, in favor of mass transit. We'll be better for it.

Absolutely BRILLIANT planning!

noreply@blogger.com (sbcrimlawyer) — Wed, 29 Oct 2008 17:54:00 +0000

I've got a GREAT idea! Let's cancel our practice of having rows and rows of port-a-potties at the biggest drinking-fest this side of Mardi Gras! Yes, Santa Barbara County authorities have made the stunning choice of not having port-a-potties available for the 20,000+ Halloween revelers that will be milling around Isla Vista, drinking copious amounts of alcoholic beverages, starting tomorrow night. Hmmmm.... What might this lead to? Well, in addition to a lot of very full bladders, it will lead to public urination of epic proportions. And, because some will find relieving themselves on the street, in front of hundreds of spectators, an unacceptable activity, there will be those that will try to do so in private, as in on private property, without permission, and not necessarily in a bathroom. I can imagine fights breaking out over people who have crossed various boundary lines in order to relieve themselves.

This is my foundational post for a forthcoming "I told you so" post next Monday or Tuesday after I hear about how an already out of control event became even more so given all the disorder created by the population of full-bladdered people with no way to correct the problem in a civilized manner.

Absolutely brilliant!

Does "Parental Notification" violate privacy?

noreply@blogger.com (sbcrimlawyer) — Sat, 25 Oct 2008 03:22:00 +0000

UCSB is the only UC campus, but not the only UC, that endeavors to notify parents when a student has gotten in trouble with the police for drinking or doing drugs. More specifically when a UCSB student is either cited or arrested for any alcohol or drug related offense in Isla Vista (not the UCSB campus, interestingly) two letters will be mailed. The first will go the student expressing concern and making mention of counseling resources available. Then, about a week or two later, a second letter will be mailed to the "Permanent Address" of the student informing the presumed Parent/Guardian living there of the fact of the arrest or citation. This, of course, adds a whole other dimension to getting busted. For those of you who try to keep secrets from your parents, take notice that, when you get busted, not only must you be accountable to the Court, but in many cases you might have some explaining to do to your parent as well. Many students have expressed grievances about this "Big Brother" policy in effect, remarking that their misfortunes while out partying are not their parents' business nor concern. Naturally, parents and University officials feel differently. It could very well be that this program serves as a deterrent to the undesirable conduct. Binge drinking and drinking under age can have devastating consequences (separate from, and more serious than, an arrest or citation). It is NOT a violation of your privacy, legally speaking, as the information reported is public record. The University is certainly behaving in an officious way, but it does not amount to an actionable Privacy rights violation where the reported information is both part of the public record and true. Sorry.

To those who want to keep their legal misfortunes private from their parents, please consider that abuse of alcohol and drugs, especially when under age, is a destructive activity. Having said that, as a staunch civil libertarian, and one who generally disapproves of "Big Brother" tactics, I will say this: If you don't want your parents to get the "memo" you can ask to have the "Permanent Address" in your school file removed and/or changed. As an adult (18 years and older), regardless of who is paying your tuition, room and board, etc., the University has no right to force to you to disclose a permanent address, nor the contact information of your parents. Food for thought. My disclaimer, as always, is that the aforementioned alternative to "Big Brother" is that, if you want to be treated as an adult, act like one. Drink responsibly and don't break the law.

Mark your calendar, Isla Vistans!

noreply@blogger.com (sbcrimlawyer) — Fri, 26 Sep 2008 05:29:00 +0000

This year the UCSB Associated Students' Legal Resource Center will host its annual workshop at Embarcadero Hall for those interested in learning how to have a fun, yet safe and arrest free Halloween celebration in Isla Vista this year. The event will take place on October 28, 2008, at 7 p.m. Last year myself and Santa Barbara County Deputy Sheriff Miles Davies shared the stage where we voiced our surprisingly similar persectives on this subject matter with a bright and inquistive audience of prospective Halloween revelers. Also in attendance were attorneys Robin Unander and David Andreasen of UCSB's Legal Resource Center. I heard that not a single one of the attendees got arrested last Halloween; thanks to us. Actually, I have no idea if that's true...

This year the event will include a Halloween costume contest. Prizes will be awarded to the best and scariest costumes as well as to the costume most likely to get you arrested. And, every legitimate contest entrant will receive a gift from the ivlawyer.com store! So, don't miss this great opportunity to show off your costume in a well lit environment of, mostly, sober people.

It promises to be the best annual workshop yet. See you there!

Open letter to Sheriff Bill Brown

noreply@blogger.com (sbcrimlawyer) — Fri, 19 Sep 2008 21:38:00 +0000

Dear Sheriff Brown:

Apart from my concern that more jail space leads to stiffer penalties for petty crime, I congratulate you for getting the job done in terms of securing a $56.3 million grant to construct a new North County Jail. You are keeping your campaign promise, and are doing well to eventually reduce the health and safety hazards presented by having too few beds for the current inmate population at the Santa Barbara County Jail in Goleta.

I will remind you that part of the County Booard of Supervisors' willingness to approve of your plan was based upon your representations that there would be money spent on social programs to address substance abuse and mental illness, the two biggest factors leading to incarceration.

Although it was never promised as part of the plan, I strongly believe that the County of Santa Barbara should install a sobering center in Isla Vista pursuant to Penal Code section 647(g). It is clearly the State's policy to civilly commit individuals who are found to be unsafely inebriated in public, and not to criminalize them. Isla Vista, which claims a huge share of all public intoxication arrests, needs to afford law enforcement the option of a civil commitment. Until that happens, I would urge your agency to follow the spirit of the law (647(g)), by releasing those who are brought to the County Jail on a lone charge of public intoxication pursuant to Penal Code section 849(b), which means that they will not face prosecution. This, in effect, makes the commitment civil, rather than criminal.

Thanks to the MANY who have made our roads safer.

noreply@blogger.com (sbcrimlawyer) — Wed, 03 Sep 2008 04:53:00 +0000

Traffic fatalities are at an all time low. That's great news. I am grateful for the efforts of those who have worked hard to make our roads safer and, yes, counted among them are the men and women of law enforcement. But, let's not exaggerate their contributions, especially when doing so tends to suggest that more aggressive enforcement of traffic laws is the one and only solution to the insurmountable problem presented by the inherent dangerousness of millions of large one to two ton vessels of steel and glass whooshing by each other at high rates of speed with soft-shelled humans inside. Keep in mind that more aggressive enforcement of laws leads us further and further into a police state where our privacy rapidly erodes. Losing sight of, and otherwise foresaking, the most cherished values of this great land is an insidious problem that rivals traffic fatalities. The idea that, in the name of further reducing traffic fatalities, we should look toward aggressive enforcement of traffic laws and checkpoints as the only solution to the problem of traffic fatalities is a tragedy unto itself.

Yes, law enforcement officers face risks and are paid relatively little for the challenging and vital nature of their work. No question about it. However, let's not forget the countless others who work hard to reduce traffic fatalities. A spokesperson for the CHP, Daniel Barba, perhaps without intending to do so, completely disregarded the important efforts of the auto industry for making safer cars, the traffic engineers for designing safer roads, the caltrans workers for building and clearing those roads, the EMS personnel for providing triage, the Firefighters for their vital work, the members of the medical profession for their contributions, the tow truck drivers for clearing disabled vehicles, and the many common carriers (such as cab drivers) for offering alternatives to driving. All of these folks deserve some of the credit for reduced traffic fatalties, if not a good deal of it. Nevertheless, the CHP seems quite willing to claim all of the credit where it states that seatbelt usage, speeding, and DUI are THE 3 leading factors resulting in traffic fatalities, and that they and they alone have an impact on the reduced instances of these dangerous behaviors. It is without question that law enforcement serves to deter dangerous behaviors by their ongoing enforcement efforts, and their visibility on the roadways. Their education campaigns are likely beneficial as well. And it may very well be that more of these activities will further reduce traffic fatalities. What concerns me, and hopefully concerns you, is that mindless support of aggressive law enforcement diminishes our freedom; the very freedom that hundreds of thousands of Americans have died on the battlefield to defend.

100 College Presidents Call for Lowering the Drinking Age

noreply@blogger.com (sbcrimlawyer) — Tue, 19 Aug 2008 07:32:00 +0000

Now this I can suppport. I completely agree with 100 College and University presidents who are now calling for the legal drinking age to be lowered. Don't laugh. It makes perfect sense. Among the points that should be considered are:

If people are considered mature enough to go to war to kill and die for their country, they are definitely mature enough to drink alcohol responsibly.
Restrictive rules on drinking encourage clandestine and binge drinking (which are the most dangerous kinds of drinking).
The widespread use of fake ID's among college students erodes respect for the law.
The high numbers of arrests of people for ordinary college behavior makes the system appear corrupt and often hypocritical which, again, erodes respect for the law.

Anyone who has been to college understands that the 21 and over law does not curtail drinking one iota among the 18-20 year old group. Drinking among college students is, reportedly, on the rise. Most people consider it a legal taboo to drink underage, not a social one. It is time for an intelligent debate on this failure of public policy.

DUI Cops: Sung Heroes

noreply@blogger.com (sbcrimlawyer) — Sun, 27 Jul 2008 06:39:00 +0000

I would extend a hearty congratulations to SBPD Officer Christina Ortega for arresting more people for DUI in Santa Barbara County than any other cop, except that some of those people are my clients. I don't think they would appreciate my doing so. I do, however, think we need DUI laws and police officers to enforce them. We also need courts and prosecutors to dole out pronouncements of guilt and punishment. We need a lot of things to combat the scourge of drinking and driving that burdens our highways. For instance, we need taxis and other forms of public transportation. We are a society too dependent on cars and, as is vogue to point out, foreign oil. But let's give props to taxi drivers. I can't remember ever hearing about a taxi driver getting any reward whatsoever. They don't get fancy uniforms, badges, pins, ribbons, placques, and other forms of praise. But why not? Don't they prevent DUI too? Of course they do. As one cabbie recently pointed out in an article in the Santa Barbara Independent about the various challenges facing the taxi industry in Santa Barbara, if there were no cab drivers the National Guard would be needed to come in and clean up the mess caused by drunk drivers (or words to that effect). I don't doubt it. Yet on nights when SBPD does not have a DUI enforcer on the beat, we don't see anything close to the carnage that the cabbie quoted in the article described. So, I know why cops get all the praise and cabbies get none: Being a cop is so dangerous and being a cabbie isn't. Right? Wrong. More taxi drivers are killed in the line of duty than cops. The US Bureau of Labor Statistics has consistently counted taxi driving as one of the top ten most dangerous jobs. Law enforcement isn't even in the top ten.

I hereby congratulate the cabbies who keep our streets safe every night from drunk drivers. And, to the fine men and women in yellow, let's be careful out there!

True versus False: A False Dilemma

noreply@blogger.com (sbcrimlawyer) — Fri, 11 Jul 2008 13:49:00 +0000

I encounter negative perceptions of criminal defense lawyers frequently. Of course, I am resigned to accept them, and I suffer no illusion that I will bring about any sea change in this regard. However, I will observe that one of the root causes of these negative perceptions is the belief that we criminal defense lawyers, as a matter of necessity, encourage our clients to lie to the court, or that we lie to the court on their behalf. This is a tragic misunderstanding of a criminal defense lawyer's vital role. The minority of criminal defense lawyers that commit these abominations should be disbarred, and they sometimes are. Setting the ethical considerations aside for a moment, lying to the court is not "the" solution to the problem. This belief, again, reflects a major misunderstanding.

A recent article in the LA Times exposed a troubling thing about traffic court which is that people who are not represented by lawyers tend to self-incriminate (either by telling the truth or by saying things which make themselves appear guilty regardless of the truth of the matter) under a mistaken belief that they are actually helping themselves. A common way they do so is by pleading "guilty with an explanation". And, what might not be so well understood is that the court has far less interest in the "explanation" part than it does in the "guilty" part. The famous Far Side cartoon depicting the difference between dogs and cats where the dog hears "fido, blah blah blah" and the cat hears just "blah blah blah blah" illustrates the point here. Analogously, the judge hears "guilty, blah blah blah". Occasionally an "explanation" is so compelling and, more importantly, so believable, that it might differentiate itself from the pack of likely explanations. Judges hear it all and they hear it all day long. The "explanations" don't vary that much. And what's really telling is that the compelling and believable "explanation" that worked for the last guy who got his fine substantially reduced, or his case thrown out, is often repeated with little editing by the next several folks.

Many plead guilty with an explanation with the consciousness that saying they are "guilty" amounts to self-incrimination. Others seem to behave as though they are talking to a friend, and if they present a sympathetic story, their loving and forgiving "friend" in the black robe is going to let it go this time. After all, to err is human, to forgive is divine. And aren't people in robes, by the way, supposed to be divine.

It is understood that the Catholic faith puts emphasis on the cleansing aspect of a confession. It is, in a moral sense, important to restore what you have stolen from justice by "taking responsibility". I am down with that. However, the big fallacy is that the government (in the form of a courthouse) affords the only opportunity to do so. You can, and probably do, feel badly about what you have done wrong. If you don't, you are probably a sociopath, or are indulging yourself in some kind of denial, at least. There are numerous ways you can "pay it back". You can feel bad, which is a form of self-imposed punishment; but maybe not altogether satisfying to society nor those whom you have harmed. You can say "sorry" directly to the person(s) you have injured and offer to pay for or otherwise correct the problem you have caused for them (if it is feasible to do so). You can confess to a member of your clergy, your therapist, your lawyer, etc. You can devote your time and money to good causes. You can swear to yourself to never do anything of the kind again and follow through. Clearly, there are numerous ways to accept responsibility for wrongdoing that have nothing to do with a court of law. To say otherwise is to assume that the population consists of mere children who need to be spanked by the government before they will understand that what they did was wrong. To say otherwise is to assume that if you do suffer punishment for your wrongdoing in court that you have made it all okay. Of course both of these assumptions are faulty. The government is not the sole arbiter of morality, and the fact is, the government is incompetent to restore justice in many cases where a wrong has been committed in spite of its laudable, and necessary, effort to do so.

I do not call for the dissolution of the government, nor the judiciary, but I would call upon my fellow human beings to have a more balanced view of what is really going on in court. The defendants in court are neither all "crooks" that deserve stiff punishments, nor are they all "saints" who are going to be recognized as such and given a pass this time by a judge with an impeccable intuition. Most of the defendants are every day people who have made one or more bad choices. The court does not behave as their friend. In our adversarial system a court of law is a place where litigants who let their guard down are routinely taken advantage of by the other side. A corrollary to this concept is the right every criminal defendant enjoys: the right against self-incrimination; or simply put, that the prosecution must be able to prove you guilty. You are under no obligation to prove yourself guilty, and it is generally unwise to do so. If there is any proof problem whatsoever, you are advised to plead "not guilty" and to remain silent unless and until it becomes very obvious that you are going to be found guilty anyway, or that there is something to gain by self-incriminating (e.g., a favorable plea bargain).

A letter to the editor in today's Times criticized the above-linked article because it seemed to suggest, to the letter writer, that defendants should lie to the court. After all, lying is THE alternative to telling the truth, isn't it? I hope, by now, you can see that that is a false dilemma. Pleading not guilty is not lying. Remaining silent is not lying. Causing the prosecution to do their job, which is to prove you guilty, is not lying. Get it?