“If you or I did that to somebody on the outside, you’d be sitting in jail talking to (an attorney)” Arcesi said.

But, as I mentioned in yesterday’s post, those responsible for enforcing our laws take a different approach when it comes to their own behaviors. I was already writing another post this morning about law enforcement ignoring the law when I spotted Scott’s tweet. If you followed the link in the tweet, you already know the story.

In case the link goes belly up, the essential facts are summarized in the first paragraph:

A defenseless inmate was beaten by Tioga County Jail’s top administrator, David Monell, after being pepper-sprayed and handcuffed to a wooden bench by other officers. But the Commission of Correction ended its investigation and Tioga’s district attorney decided not to prosecute after Monell resigned.

There are a few other points to the story, such as a claim that the inmate spit in the officer’s face, and that the beating everyone attempts to trivialize allegedly resulted in permanent damage to the inmate’s vision. Oh yeah, and the fact that the day after the beatdown, Monell was honored by the New York Senate as the “2010 Correction Officer of the Year.”

The most important part of the story, though, is that Monell was punished.

How? Well, it turns out that after the facts about the beatdown began to emerge, he decided to quit his job.

Tioga County District Attorney Gerald Keene decided Monell’s resignation was punishment enough.

This is a defense to criminal charges that my client’s would no doubt love to be able to use. I don’t even need a lot of experience with that particular defense to realize — as Bunny Chafowitz sometimes says — “that dog won’t hunt” when it comes to ordinary citizens.

Last week, I was defending someone charged with evading the police, for example. Without getting into the details, there was at best a failure to exercise common sense on the part of the client, who thought the police were after someone else and drove an additional 10 or 20 yards before parking in a parking spot (whereupon two officers did a “felony extraction,” ordering my client out at gunpoint). There is no evidence whatsoever that my client “willfully fle[d] or otherwise attempt[ed] to elude a pursuing officer’s motor vehicle.”

Recognizing this, the prosecutor has magnanimously offered to reduce the misdemeanor to two infractions: one for running a stop sign, which didn’t happen, and another for using a cell phone while driving. My client countered by offering to plead to using a cell phone while driving, even though it was more like “listening to music while driving,” which everyone agrees would have been perfectly legal “if he had been listening to a transistor radio instead of a cell phone.”

My client’s offer was rejected. In explaining that phone records show no phone call occurred and that witnesses indicate my client did not run a stop sign, the prosecution states “I’m offering to dismiss a misdemeanor.”

There’s a reason this makes sense to the prosecutor: My client is just a janitor with no criminal history, no reason to want to flee or evade the police, poor enough not to have a real radio in his car, and witnesses who say he did not attempt to evade.

In other words, he’s not employed by any law enforcement agency.

A couple weeks before that, I successfully defended a woman charged with assaulting an officer. The “officer” was a dog catcher who came onto her property, stating that he had previously seen her unleashed dog running in the street and therefore he was going into her fenced backyard to retrieve the dog. When the woman stated that he was not going to do that without a warrant, he shoved her — yes, he shoved her — out of the way. Despite being approximately half his size, she responded by getting up and shoving him back.

When she went down to file a complaint at City Hall, she was told, “You can’t file a complaint. We’re charging you with assaulting an officer.”

After a year of fighting this in court, the trial judge in the case attempted to convince me to accept an infraction offered by the prosecutor for, apparently, disturbing the peace. (The prosecutor said, “making a loud noise,” so I assume he meant disturbing the peace.) I was appearing in court without my client and stated I would need to communicate the offer first and see if she would accept it.

“Don’t give me that b.s., counselor,” the judge said. The judge went on to claim that the code section that authorized my client to be absent also authorized me to settle the case. (It does not.)

The prosecution finally dismissed the case — without the need to admit to “making a loud noise,” or any other “crime” or “infraction” — just before we were to go to trial.

In that case, I expressly attempted to convince the judge and the prosecution that whatever they — it was clear the judge, without having heard all the facts, was in agreement with the prosecution — whatever they thought about the merits of the case, my client had suffered enough by being forced to hire an attorney and make occasional court appearances for approximately a year.

Until it became clear that we would proceed to trial, they would have none of it. In this case, not only was my client not a law enforcement officer, but she had the gall to defend herself and her property against an “officer” — a dogcatcher — who was only shoving her out of the way so he could invade her backyard without a warrant and take her dog.

On the one hand, these are mild examples of the injustices perpetuated by those who administer our criminal “justice” system. On the other, they show how very far from the purpose of the system we have come.

The reason Tioga County Jail Administrator David Monell was not charged with a crime after resigning is because — in the eyes of those who run the system — he did not do anything wrong. Monell was merely doing his part as an administrator in a new kind of system. It is no longer a “justice” system at all.

It’s a system for the control of all those not employed in the new system. In the eyes of a prosecutor, Monell was “punished enough” because he has — at least temporarily — gone into self-imposed exile; he no longer has the ability to beat defenseless inmates at will.

Those in power actually do see this as a significant punishment.

Comments

• February 20, 2012, TJIC writes: > It is no longer a “justice” system at all. Sure it is. It's just not the kind of justice that you and I understand or respect. It's the justice of the feudal period, where some men are in high station and some in low. The feudal lord or his men can do all manner of things that the serfs can not do. They can hunt, rape with impunity (as long as the victims are only serfs), steal, etc. The peasants can do certain things as well - they can celebrate a good harvest (after handing over a portion of it to the feudal lords), they can paint their houses any color they want, and they can eat their gruel before or after they eat their bread.

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1. Yes, the original tweet came from Radley Balko, who I also follow, but I wouldn’t have seen it without Scott’s tweet.

Since the law as written does allow medical marijuana to be legally possessed, used, cultivated, transported, or sold in California, the problem for such cities and counties has been how to get around the law. So far, though, that has proven to be a very small problem: the courts also disapprove of the law and have done everything possible to help the cities and counties subvert it, all the while pretending to uphold the utility of the law as to individual patients.

It doesn’t help, of course, that the medical marijuana laws, as written, are vague as to what they mean, intend, and actually do.

For example, the Compassionate Use Act, passed by the majority of voters in California in 1996, as codified in Health & Safety Code section 11362.5, subsection (b), states:

(1) The people of the State of California hereby find and declare that the purposes of the Compassionate Use Act of 1996 are as follows:

(A) To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person’s health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illnesses for which marijuana provides relief.

(B) To ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction.

(C) To encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana.

In subsection (d) of Health and Safety Code section 11362.5, the voter-approved law goes on to state:

Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient’s primary caregiver, who possesses or cultivates marijuana for personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.

The state Legislature — who, among other things, decide what the legis, or laws, will be — followed this up in 2003 by passing the Medical Marijuana Program Act. The MMPA created an “identification card” system. In what became Health and Safety Code section 11362.71, subsection (e), the law states:

No person or designated primary caregiver in possession of a valid identification card shall be subject to arrest for possession, transportation, delivery, or cultivation of medical marijuana in an amount established pursuant to this article, unless there is reasonable cause to believe that the information contained in the card is false or falsified, the card has been obtained by means of fraud, or the person is otherwise in violation of the provisions of this article.

Now, I have absolutely no idea what that means. Do you?

Let’s talk about the Compassionate Use Act first. I mean, does the law the voters passed intend that some class of people — let’s call them “patients” — is entitled to possess or cultivate marijuana for personal medical purposes?

If you read English, you might be inclined to think that it does. But ask almost any county supervisor, politician, or law enforcement officer and the answer is clear and unambiguous: It does not.

Just because the law says that there is a class of people who may legally possess and cultivate marijuana — just because the law says that it intends for them to be able to do so without being subject to criminal prosecution or sanction — that doesn’t mean the law was meant to allow anyone to possess or cultivate marijuana without being subject to criminal prosecution or sanction.

Uh-uh.

Besides, it just says that “Section 11357, relating to possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply.” Heck, how do we even know what code sections they’re talking about? It doesn’t say Health and Safety Code!  It also doesn’t say we can’t just change the numbers and write a new code making it illegal.

Yeah, yeah, we saw that part where it mentions that one of the purposes of the law is to ensure that some people “are not subject to criminal prosecution or sanction” for possessing or growing marijuana. Well, when we arrest people, we aren’t arresting them for that. We’re arresting them for not obeying the municipal code sections relating to zoning regulations.

The zoning regulations are clear: jump through all the hoops and someday it might be possible that the people mentioned in the Compassionate Use Act that the voters passed in 1996 could actually legally obtain marijuana.

If someone screws up and actually grants the proper business license, that is.

What about the Medical Marijuana Program Act? I mean, on the surface, it appears even broader in its protections — and some courts have interpreted it that way, too — because it says if there is a “valid identification card,” then “no person…shall be subject to arrest for possession, transportation, deliver, or cultivation.” It doesn’t seem to allow the possibility that a municipality — a city or county — can get around this simply by changing the number of the code section, or by allowing them to say “well, we’re not really arresting them for that; we’re arresting them for violating the zoning ordinance.”

The zoning ordinance, of course, makes it illegal to do the things which the state Legislature has already said are legal.

Can you say “pre-emption”?

But wait! The MMPA doesn’t actually say that having a valid identification card will prevent arrest, so long as “there is reasonable cause to believe that the information contained in the card is false or falsified, the card has been obtained by means of fraud, or….”

Well, if comments made by officers arresting clients of mine recently are accepted at face value, here’s how law enforcement gets around the law: if you have what appears to be a “valid identification card,” then “there is reasonable cause to believe that the…card has been obtained by means of fraud.”

I mean, otherwise, you wouldn’t have the card.

This is how it is because California is not a state regulated by laws. It is a state run by law enforcement.

When law enforcement doesn’t like a law, it simply doesn’t exist.

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The establishment of a standing army in Britain in 1685 by King James II and the later assumption of control over the British colonies in America by the British Army were controversial, leading to distrust of peacetime armies too much under the power of the head of state, versus civilian control of the military, resulting in tyranny.

Thomas M. Cooley, a Justice of the Michigan Supreme Court and the Jay Professor of Law at the University of Michigan, complained in his book, first published in 1868, that for those employed in such armies, “insult and outrage may appear quite in the line of duty.”¹

Today, few consider such namby-pamby concerns, fewer still even remember that the concerns were once prevalent amongst Americans, nor why.

This “advertisement” for the Lenco Bearcat G3 provides a hint into one of the reasons why we should still be concerned:

When Peter Sean Bradley posted the video up on his Facebook “wall,” he almost certainly had never read² Cooley’s words. Yet he echoed them quite well:

The militarization of the police is a problem. It seems to have fostered the attitude among the police that they are a kind of occupying power in a conquered nation of people who are criminals who have just not been caught yet.

The Founders of the United States of America were well aware of this tendency. Not long before our founding, the English Kings had increasingly come to rely upon mercenary soldiers.

[M]ercenary armies were made up largely of tramps, beggars, criminals and other persons “pressed” into military service by local officials.

Whereas the People had come to hate mercenaries, their historical appreciation for the Saxon militia, on the other hand, inspired more trust.

The experience instilled in the common people a hatred and distrust of those same soldiers whom they viewed as their oppressors and not their protectors. It also instilled in them a corresponding fondness for their native Saxon institution the militia.

The militia was made up of the citizens themselves, and was only called upon when the country was under attack. It was more similar to our National Guard, which traces its history to these militias, than to a standing army.

Today, we are too far removed and too uneducated to remember the failings of standing armies.

Unsurprisingly, this has consequences. The majority of Americans have yet to realize the threat we face from the transformation of local police departments into the equivalent of standing armies which share the vices of standing armies of old. Whereas standing armies were often comprised “largely of tramps, beggars, [and] criminals,” most “modern” police departments are like the Fresno Police Department: applicants must have attained the lofty position of high school graduate.

As you might expect — and as can readily be proven by selecting almost any police report at random — this does not mean they will be educated, or even capable of reading.

The power these uneducated and under-educated officers wield, as the video above implies, continues to grow. Increasingly, they have access to military-grade weapons, including tanks. They use them even for low-level arrests. Or to control those who attempt to exercise their First Amendment rights.

And police departments around the United States are busily “devising scenarios for when it would be useful” to have more tanks.

Not even chickens are safe these days.

Trying to police a small county of 37,575 people and only one small town? No problem.

“If somebody looks out and sees a Ford Crown Victoria sitting out there, they may not take you very seriously,” Warren County, Va., Sheriff Daniel T. McEathron told a local newspaper in October, “but if they look out the window and see this thing sitting there, they’re going to know you’re serious.” Added another officer: “It’s big enough to go through a house if it had to.”

It’s the gang mentality, cursed when citizens hold it, but somehow cleansed by government blessing when embraced by the police.

Police and their supporters will tell you there’s a reason for this: police officers sometimes get shot. We have to do everything possible to prevent this from happening. Everything.

[T]here is no price tag you can put on the life of a police officer who is out there protecting you.

None. Do you understand?

If not, well, not to worry: the police have a tank to handle you.

The trouble with standing armies today remains the same as it has always been. There is no doubt that we need police and that, appropriately trained and maintained, a police force is not the equivalent of a standing army so feared by Americans before the 1830s. The problem is that while the costs of maintaining a police force have increased, this is largely based on out of control salaries, militarization, and the belief epitomized above that “there is no price tag you can put on the life of a police officer who is out there protecting you.”

This just isn’t true.

There will be those — those who are still here have been foaming at the mouth and gnashing their teeth through this whole blog article — who will vehemently disagree, but it just isn’t true. I mean, if you dump enough money into it — by which I mean tax us to death — you can make sure no police officer is ever going to be easy to kill. But you can’t prevent it even then. Would you agree to a tax rate of 50 or 75% if you knew the money would go towards officer safety? I’m saying if you knew that’s where it would go. Would you give up one-half to three-quarters of your salary for that?

I didn’t think so.

What about a curfew on all Americans? Checkpoints throughout the city where, for the safety of officers and the general public, you were put through TSA-style searches to ensure a weapon-free citizenry?

That might seem extreme, but we seem to be headed in that direction. The fact that there is no official curfew — officers merely use as one excuse for stopping people that they are out after dark, which makes them look suspicious — or that the checkpoints are roaming and don’t often detain and illegally-search white people doesn’t mean we aren’t.

And as time goes on, as Peter Sean Bradley put it, the increasing militarization of police — aided by the increasing acquiescence to it by most citizens — “seems to have fostered the attitude among the police that they are a kind of occupying power in a conquered nation of people who are criminals who have just not been caught yet.” Just ask Idalia Morgutia-Johnson.

If you think anyone is safe from this attitude, just spend some time in an American courthouse. Many people may mistakenly believe that judges rule the roost there. They most certainly do not. (Nor is the courtroom the only place where law enforcement ignores judges.)

It is this increasing sense amongst police officers that points to the great problem of our time.

When a person gains power over other persons–political power to force other persons to do his bidding when they do not believe it right to do so–it seems inevitable that a moral weakness develops in the person who exercises that power. It may take time for this weakness to become visible. In fact, its full extent is frequently left to the historians to record, but we eventually learn of it. It was Lord Acton, the British historian, who said: “All power tends to corrupt; absolute power corrupts absolutely.”

Please do not misunderstand me. These persons who are corrupted by the process of ruling over their fellow men are not innately evil. They begin as honest men. Their motives for wanting to direct the actions of others may be purely patriotic and altruistic. Indeed, they may wish only “to do good for the people.”

All power tends to corrupt; absolute power corrupts absolutely. I know and — believe it or not, despite what you might think based on my writings — respect some police officers. As Ben Morell, quoted immediately above said, “[t]hese persons who are corrupted by the process of ruling over their fellow men are not innately evil.” Nevertheless, they are human beings. If history teaches one thing, it teaches that human beings are susceptible to the corrupting influence of power.

It is for this reason that our systems have been developed to ensure that power is diffused. No branch of the government — particularly the executive branch to which the police belong — is to harbor it all. Ultimately, the true power is to be held by we, the People.

But if we do not remember that our Founders deliberately intended to limit the power of our government and maintain those limits ourselves, it will be too late.

That’s just the way SWAT does business.

Comments

• February 13, 2012, Brian Dunbar writes: "applicants must have attained the lofty position of high school graduate." Hunh. When I left the Marines I looked around for work, briefly considered 'police officer' in my home town, Tulsa. I needed at _least_ an Associates degree. And they weren't hiring for another few months anyway. Said the heck with that and got into IT, where the entrance standards were looser but in order to succeed one has to adapt and be educable. But I commented not to toot my own horn but to say that the problem isn't that we force the coppers to hire only guys with degrees. The problem is that once they hire the guy he is then poorly supervised. He's brought into a culture where stuff like 'larceny' and 'lying under oath' is approved of, winked at, implicitly endorsed. Spending four years at Cow College earning a BS in English Lit or (God help us) law enforcement is going to do nothing to stop these shenanigans. The Marines. A group which has it's share of malcontents, fools, and goobers but which is held in high esteem by the public. Because Marines do a real good job of holding themselves to high standards, self-policing. Now, there are famous incidents when deployed go off the rails. Throw puppies off cliffs, get their picture taken with banners that look an awful lot like what a Nazi would have in his house. But those, I argue, are so famous because they are so very rare. Forty-thousand Marines were in Iraq every year for most of a decade and how many times did they rape, rob, pillage, lie under oath, beat handicapped guys to death, drive drunk, blow up the wrong house, shoot people's housedogs? I bet it's a lot less than a comparable number of cops in the US during the same time period. The difference is standards, supervision, espirt de corps, a sense of history. I dunno how we get the police to emulate that. Or if it's even desirable. Thoughts?
• February 13, 2012, Rick writes: Yes, because if you said that we hire only "coppers" with degrees, you would be wrong. The majority of police forces require only a high-school diploma. More of them are moving in the direction of requiring degrees, which is a good thing, but most still don't require that.
• February 14, 2012, Brian Dunbar writes: More of them are moving in the direction of requiring degrees, which is a good thing, Why is this a good thing, Rick?
• February 14, 2012, Rick writes: It makes for a more professional police force.
• February 18, 2012, John David Galt writes: The only solution is to bear in mind that ultimately, the police work for us. Not just the requirements imposed on newly hired police and how they are armed and equipped need to be topics of public debate - so do their rules of engagement, internal affairs or complaint commission procedures, and the details of every case where they abuse their power. We need to demand from our state and local politicians that they keep us, the public, constantly informed about all these things, and that they make the police do their jobs the way we, their employers, want them to, and that officers who won't comply be fired and replaced (and that higher-ups who won't do that also be fired and replaced). There is no excuse for a police department in which a Serpico couldn't keep his job. Or one in which officers who commit atrocities can keep their jobs because of employee confidentiality or a union arbitration contract. State legislators must know that if any of these things happen, their own jobs will change hands until they stop.

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1. Thomas M. Cooley, A Treatise on the Constitutional Limitations which rest upon the Legislative Power of the States of the American Union 309 (7th ed. 1903).
2. *wink*

Clearly, the unnamed individual does not know me, or anything about me. Or most other criminal defense attorneys, for that matter.

Fortunately, the rest of my day went a little more smoothly. After a sentencing hearing in Hanford, California, and a dispositional hearing for a juvenile case in Fresno, I returned to my office to find this email:

To: Law Office of Rick Horowitz
From: Mitch [Last name deleted to protect privacy]
[Email deleted to protect privacy]

Message:

I wanted to write a letter regarding the way that Rick Horowitz handled my case. I was charged with 2 felonies plus added charges, and had no idea what to do. My wife and I were scared and completely lost, as we have never had any dealings with the law before. Rick stepped up and guided us through the process, getting my sentence down to a no contest misdemeanor with only probation. I want to say thank you, and to let anyone out there know that if they are accused of something and do not know what to do, call Rick immediately. He is not only a great lawyer, but compassionate and caring as well. I am very thankful my wife found him on Facebook, and just want to let people know that there is a defense lawyer who cares about your wellbeing more than your money.

Thank you Rick, for helping me get my life back, and giving my family the peace of mind knowing that I would be taken care of in this horrible time in my life. God bless you!

Akismet Spam Check: passed
Sent from (ip address): [deleted]
([deleted].hsd1.ca.comcast.net)
Date/Time: February 7, 2012 10:56 am
Coming from (referer): http://fresnocriminaldefense.com/contact/web-contact-form/
Using (user agent): Mozilla/5.0 (compatible; MSIE 9.0; Windows NT 6.1; WOW64; Trident/5.0)

The only thing I want to add to that letter is that I “[got his sentence] down to a no[-]contest misdemeanor with only probation” by showing the prosecution at the preliminary hearing how bad their witness was going to look to a jury and by being totally prepared for trial. During the conversation amongst the judge, the prosecutor, and myself at “pre-trial,” both the judge and prosecutor expressed concern over the likely difficulty choosing a jury under the circumstances of that particular case, and the judge noted the trial would be “particularly ugly” with both sides having “significant bad facts.” The original charges included two “strikes.” An offer was made at pre-trial, which I’m required by law to communicate to my client, and the client decided a misdemeanor in the hand was worth two strikes in the bush.

I had already planned on writing this blog entry before that email arrived, but I think it nicely dovetails into what I have to say about “money-grubbing lawyers.”

Let’s start by admitting that some lawyers — like some people in other professions — actually are “money-grubbing.” You won’t, however, find very many of them in the practice of criminal defense. In my experience, which from talking to my colleagues does not seem to be all that unique, criminal defense is not “where the money is.”

Think about it for a minute, and you’ll understand why. Our laws tend to target, or at the very least are disproportionately used against, the disadvantaged in our society. You don’t see a lot of executives, doctors, airline pilots, or other folk who are making significant incomes, charged with crimes. Clearly it happens. But the system is biased against the poor, even if much of that bias is unrecognized by those responsible for it. If a rich white person commits a crime, they’re going to need a lawyer, but more often than we as a society care to admit, the rich white person who commits a crime is going to get a pass from investigating officers — depending on the type of crime.

“What about drug dealers?” you ask. Again, in my own personal experience, people arrested for drug-related crimes tend not to have bank accounts — at least not the ones coming to see me — nor significant assets. What cash they might have is almost always confiscated by law enforcement when they are arrested. By the time they get to me, they’re broke.

This thing about money has always bothered me. I frequently mention the words of attorney Vincent Hallinan (1896-1992), who was often referred to as “a lion in court.”

Hallinan said:

Lawyers make a good living off the misery of others and any lawyer not willing to go to jail for his client has no damned right being in the courtroom.

Most attorneys I know are like me: we take this seriously. In my case, it impacts my judgment about what to charge for my services, as well as my handling of the case (both in and out of the courtroom). What I mean by that is this: I dislike the feeling that comes from “making a living off the misery of others,” so I tend not to charge enough for the work I do. This is particularly true because — although I’ve not yet had to go to jail for a client — the amount of work I put into a case is influenced by the recognition that this is how hard I am to fight: I am to fight as if it were me, and not my client, headed for jail; I am to fight as if I were fighting for my own freedom.

Most criminal defense attorneys I know are like this.

Don’t believe me? Here’s another “coincidence” from this morning, Brian Tannebaum, complaining on Twitter:

I wonder if lawyers ever stop and think that part of our problem is that some of us see every new web platform as a way to make money

Does that sound like a money-grubber to you?

It’s no surprise that this pseudonymous commenter, though, doesn’t know what he (or she) is talking about. After all, the idea that criminal defense attorneys are “money-grubbing” was just one of many misstatements. It wasn’t even the funniest one. (That credit goes to the one about the sheriff being more than happy to release people from the jail on bail so as not to have “liability” for them, whatever that might mean.)

The unnamed coward also thinks the police get it right 99% of the time. I don’t know the exact numbers, but I know this is false. At one point, a few years ago, the Fresno Bee noted that the District Attorney’s Office was losing approximately 40% of all trials. Then there are the cases which are dismissed.

And, of course, there are the plea-bargained cases which, if nothing else, are typically capable of being made only because the District Attorney’s Office “overcharged” the case from the start. In other words, yes, the police may have gotten the right person, but then someone decided to charge a more serious crime than the conduct deserved, such as charging someone with commercial burglary when they shoplift a Magic Marker, or a lipstick, or a candy bar.

Then there are the “political” cases. Medical marijuana, for example, has been decriminalized in California. But tell that to Sheriff Mims, who heads up the Fresno County Sheriff’s Department. Tell it to Jerry Dyer, the Fresno Police Chief. Tell it to any number of other law enforcement officers in the Central California area.¹

Many people are finding that, despite the passage of the Compassionate Use Act by the electorate, or the passage of the Medical Marijuana Program Act by the State legislature, law enforcement will quite literally ruin their lives, cost them jobs, destroy and/or confiscate their property, and leave them with a decision of whether they want to risk even more by taking the case to a conservative jury which may, or may not, care what the law says and acquit them of any bogus charges. I have a client right now whose wife lost her job because she came home while police were at the house, and the police refused to allow her to go to work, even though she has not been charged with any crime and neither of them have broken any laws.

Criminal defense attorneys do, in fact, play an important role in fixing the system when it goes awry like this. Of course, for those of us who are private attorneys, we have to be hired first. This has nothing to do with us being “money-grubbing” any more than you going to work at your job is because you are “money-grubbing.” The fact of the matter is that whether we are fighting the arbitrary imposition of governmental power, or performing the more mundane task of simply making the government prove its case, we’re not available to go work at the hospital, the grocery store, the gas station, the farm, or the factory. Defending people isn’t something we do because we were independently wealthy and got bored.

It’s how we make our living.

In some way — although I admit that I don’t always feel this way — we’re lucky to be able to get paid for doing something we love doing. (Many times I feel like I had no real choice in the matter: being a criminal defense attorney is something I did not choose; criminal defense chose me. So it’s not always a “labor of love.” I see things — like the medical marijuana case mentioned above — that I think are wrong, and I have no choice. I have to fight that.)

But regardless of whatever feelings, thoughts, or ideals might be motivating us to the work we do, the fact of the matter is that if we’re doing the work of criminal defense attorneys, we don’t have time to go get some other job to make money to feed our families. We have devoted ourselves to criminal defense and we are left with no choice but to charge for the time we invest in making ourselves the experts, the Knights, the Gladiators our clients need.

If I were independently wealthy — listen up if you have a few million dollars you’re willing to donate — I’d defend people for free. I’m not willing to be a public defender and work for the government, which will overload me with cases so that no matter how good I am — and see this post for my thoughts on that — I cannot do my job well. But if someone wants to help make me independently wealthy, I’ll be happy to work pro bono thereafter.

Because the truth of the matter is that I am like my brothers and sisters who practice criminal defense: I have to do this; I was built to do this; I am no “money-grubber.”

But I — and my family — have to eat.

Comments

• February 8, 2012, Lyle Jones writes: Rick, you're dead on. Most criminal defense lawyers I know are square in this mold. Sure there's the occasional lawyer that, unless you're paying him a slew of money, moves the meat, but the majority are just down in the trenches, hard-working defenders. Keep fighting.
• February 9, 2012, brenda A. Linder writes: Rick, can we add others into the group with criminal defense lawyers?As you and I have spoke of on many occasions, I too have this issue. I love what I do and truly care for my clients (and yours too for that matter). I think, as other groups have been stereotyped, a few attorneys (those about whom the bad lawyer jokes were written) have instigated this perception of those who practice in this profession. It is easy for others then to generalize their own experience, or those which have been relayed to them, to all lawyers. I dislike most attorneys I have met, you know that, but I don't believe I over-generalize any one particular type of practice.....unless you include my extreme offense for all lawyers at a few particular firms I find to be arrogant, money-grubbing, ignorant, unethical, double billing buffoons. Seriously, I have said many times as well, if I could keep the lights on and just help those who need it and can not afford an attorney, that would be my preference. As of yet, I have not found a way to accomplish it, yet. Until then, as I know you do as well, we must try to find a sustainable balance. I'm losing the balance thing right now... but I do so enjoy waking in the morning and being able to still look at myself in the mirror.

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• The Accidental Pro Bono Attorney
• Caveat Emptor & The Benefits of Blogging
• We’re Are All Truman Burbank

1. I don’t mean that law enforcement in other parts of California is necessarily any friendlier, but in Central California, they don’t even pretend to care what the law says on this subject.

Thing is, in the 1970s, if you wanted to actually follow that advice, it wasn’t much of a problem. You simply offered to accept the dime — later a quarter — found a phone booth, and dialed the number you’d memorized for those who might actually care.

As Stephen Petrick recently learned, it doesn’t quite work that way anymore.

You can read the linked story to get the details, but basically, Petrick was arrested, locked up, and effectively denied bail for five days because he hadn’t memorized the ordinary — that is “not-a-cell-phone” — numbers for anyone who might care about him. Numerous people did care, but all they could do was sit and wonder, “Where in the world is Carmen Sandiego Stephen Petrick?”

Actually, I guess cell phones are now “ordinary,” and home phones are becoming more rare.

The news story covers a number of significant points. For one, as with Mr. Petrick, many — if not most – people today no longer memorize phone numbers. We rely upon our cell phones to “know” how to call our family, friends, doctors, favorite restaurants, and just about anyone else with whom we’ve ever had significant contact. When that fails, we turn to the Internet.

Surprisingly to some, there is no dearth of both cell phones and the Internet inside most county jails. And let’s not even talk about cellphones in prisons.

But if you don’t have a detention officer or deputy in your pocket, you likely won’t have a cellphone there, either.

And Petrick clearly had neither.

But that’s not really what inspired me to write a blog post about him.

No, the part that struck me is the way the Los Angeles County Sheriff’s Department — which, I believe, holds the U.S. national record for cell phones smuggled into the jail by their deputies — justifies not providing the fucking yellow pages to those they incarcerate:

Nicole Nishida, spokeswoman for the L.A. County Sheriff’s Department, confirms there are no phone numbers provided for bail bondsmen near phones to which inmates have access.

“And we have no plans of doing it in the future,” she says.

Nishida calls the problem a “vending issue” that would have to be resolved by the L.A. County Board of Supervisors. She says it boils down to fairness: making sure the Sheriff’s Department does not display favoritism toward any particular bail bonds businesses.

God forbid, by the way, that anyone other than a correctional officer or deputy should try to smuggle a cell phone into the jail.

Yeah. Regarding Petrick, the jail spokesperson’s message could not be more clear:

Not our problem. We just lock up human beings, take away their freedom. Eventually, they have some legal recourse.

Maybe.

Maybe not.

Hey. We’re only the Land of the Free. Home of the Brave.

Or so the ads say.

Truth of the matter is that, these days, no government agency gives a flying fuck about whether what they do is right, or just, or fair, or…

The only goal is to keep the money flowing. Create a sizable underclass from which the parasites can continue to make a living. Who cares if they’re treated fairly? Who cares if the system is just? Who cares whether they’re guilty, or not?

If people — in court we pretend they’re special, by saying, “the People,” with a capital “P,” but we really mean “the prosecutor,” who doesn’t give a damn about people — if people get hurt in the process, well, that’s just a sad side effect of the need to make sure that sadists (law enforcement officers, probation officers, parole agents, correctional officers, district attorneys and their deputies, judges, etc.) continue to collect paychecks.

But one of these days, the people — I mean the real people this time, which is why I used a lowercase “p” — are going to revolt. They’re going to turn on those with who abuse them, those with uniforms, those with robes, those with badges. Blood will flow.

You’ll find me standing out front of the courthouse, waiting.

With a bagful of dimes.

Comments

• February 7, 2012, youdontcareeither writes: the taxpayers, via its county commission, needs to demand the sheriff, and the unions, and the courts, deliver efficient processing of inmates. this guy would have been in and out on bail. the 5 extra days times thousands of inmates equals huge waste of money, time and personnel resources. this waste is outrageous. and as for you lawyers, instead of moaning and whining on a blog, get off your butt and away from your keyboard and get involved and get it fixed. i doubt that will happen, as lawyers love to promote that they care about basic liberty and rights, yet in reality, they really don't, unless it impacts their wallets. i'd call you - if you really cared. show me you really care.
• February 7, 2012, Rick writes: What is it that I don't care about? The huge waste of money? Or basic liberty and rights? Doing stuff that doesn't fill my pocket? In any of those cases, you clearly don't know me. If you had called me, or been to my office, you would know that I routinely turn down cases because I don't want to take money from people who don't really need a criminal defense attorney. Or you might have been like the woman who came in for help with an expungement after she lost her job and to whom I gave advice for over an hour, without taking her money, on what to do about it after I advised her that in her situation she would gain no benefit from an expungement. I'm not saying I'm going to do that for everyone, by the way, because while I am not driven by a concern for my wallet, it is unfortunately a fact that this is the only way I have to feed my family. There are no lawyers I know who can simultaneously feed their families and represent or advise everyone in the world for free. As for the huge waste of money, I not only write about that from time to time, I discuss it with judges, prosecutors, and others in attempting to encourage decisions which will achieve a balance between saving money and improving society. I frequently represent people with drug problems who wish to obtain help. In the old days, our society wasn't full of piss-asses like you who hide behind pseudonyms -- excuse me, "fake names" (I suddenly realized based on your writing that you might not know what "pseudonyms" are) -- people who think that "demanding" something from people who won't listen is different from "blogging" to inform people who might -- and we used to have facilities where people with mental health issues, which might include drug addictions, could get help. Today, we deal with them in the legal system and lock them up where they almost certainly won't get help. In cases like that, I work to get them help, thus hopefully saving them a pointless jail or prison sentence, while saving society future money. When people are jailed or imprisoned and then released without treatment, they go on doing what they did before, costing us all more money. When people get treatment, they stand a better chance of not continuing to do what they did before, which costs society less money in the long run from not having to pay for future crimes and not having to pay for future arrests and prosecutions and not having to pay for future punishments. That's just part of what I do to fight the higher costs to my clients and to society. Finally, I write this blog as part of my attempt to "get involved and get it fixed." Or perhaps you think that the best way to fix things is by not talking about them.
• February 7, 2012, youdontcareeither writes: the people created the judiciary and the laws. you are your colleagues were given the responsibility to administer the system. the current system is irretrievably broken. guess why - because of you and your colleagues. the media highlighted this one case. however, you and your colleagues have know about this forever. after all these years, nothing has been done to fix it. guess why? the people pay the police (part 1) to enforce the law, and 99% of the time they get it right. they do their job. then they turn the matters over to guess who - you and your colleagues. and thats when everything goes to shit. face it pal - the people pay for the administration of justice (part 2), the lawyers have been put in charge, and its broken. its you and your colleagues that need to step back, take a look, and accept the fact, that the system the lawyers have created, designed, tweaked, re-tweaked, manage and supervise - is friggin broken. when are you and your colleagues going to actually do something to fix it, and put your selfish greedy needs 2nd to the principles of justice. like doctors, you folks spend more time and effort trying to stay on the top of the pedestal, then you do about ensuring liberty and justice. you and your colleagues have created a system that is a complete joke. look within pal, and fix it, or resolve yourself to the fact that you have not honored your solemn oath to uphold the constitution. thinking that blogging is going to fix a 5 day loss of liberty is preposterous. you are lawyer and have the legal license to get crap like this fixed in the courts, the appeals courts, the supreme courts. go to the courthouse and fix it, unless you are not equipped to handle such a basic simple matter as getting the jail to provide immediate access of accuseds in finding their bail. use the laws - they are already in place. no need for new law, new rules, new regulations. when the judge sets bail, the gov't is not supposed to make it difficult for an inmate to seek and find it. and it behooves me that the sheriff, after a person has been admitted to bail, would want to keep an inmate under his liability, for any longer than necessary. the sheriff should seem thrilled to shed liability of the custody of an inmate every chance he gets. someone needs to remind the sheriff that shedding liability is a very good thing for the peoples account. someone needs to remind the lawyers that this accused's liberty was violated (as been happening for decades - and not one lawyer has stepped up to protect the liberty rights of the accused when the jail hinders the finding of bail). again - ongoing for decades, and the lawyers have not fixed such a basic simple issue. so much for your hollow oath.
• February 7, 2012, Rick writes: Where did you hear that I and my colleagues were given the responsibility to administer the system? You are apparently misinformed about who I am. I am a criminal defense attorney. I have no ability to administer the current system. You are right that I've known about the shortcomings in our system for a long time (not "forever," since I haven't been an attorney forever), and I've complained about it, written both blog articles and, more importantly, motions in court about it, adjudicated cases because of it, and generally worked to change the system. Certain changes (most notably the indiscriminate shackling of minors, which is and always has been illegally) have occurred because of my work. (Do a search on the blog, using the search box near the upper right, for "shackles" or "shackling" to see what I've said about that and what I've done.) As for the bail issues, again, I have no idea where you get your information. Criminal defense attorneys like me fight bail issues all the time. In one of my more notable bail motions, I successfully convinced a judge to reduce bail from $400,000 to $5,000. And that was after the judge had told me earlier in the week that she probably would not change her mind, even if I tried. Yet, in the end, I convinced her that the law required it, and she did it. You write without knowing either what you're talking about, or who you are talking about. Feel free to read a few more of my blog articles, if you're interested in resolving your ignorance problem.
• February 7, 2012, Money-Grubbing Lawyers | RHDefense: The Law Office of Rick Horowitz writes: [...] thing this morning, my blog received a visit from some unnamed individual who bravely took me to task for “not caring” about doing my job. The basis of the [...]

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I don’t know what the world of civil law is like: so far, I practice only criminal defense. I have resisted repeated encouragement — you could even class some of the encouragement as entreaties – to give in and practice some form of civil law, because I think if you want to be expert at something, you have to focus on doing that thing. Thus, I have been fairly fanatical about the defense of adults and juveniles accused of having committed crimes. I read enough civil law to ensure that I’m not missing something which would make me a better criminal defense lawyer, but I have no wish to practice it.¹

What I do know is that the world of criminal defense does not — neither in my own experience nor in stories I hear from other criminal defense lawyers — function as my friend believes it does.

The world of criminal law has much to do with criminals — both those enrobed and those accused — and not so much to do with law.

A case in point comes from a juvenile case I handled this past week. Since I intend to writ the result, I (again) won’t be going into any specific details on the case. Nor do I need to, because I’ve had more than one juvenile case over the past few years with the identical result.

The case involved what is known in the literature as a “fitness hearing.”

Myself, I refer to them as “fuck you” hearings. We could perhaps call them “fuck you and the attorney you rode in on” hearings.

A “fitness hearing” — and remember that I’m a criminal defense attorney practicing in the area of Fresno, California, so I’m always discussing California criminal law — is allegedly a hearing held when a juvenile has committed a crime and a specific set of circumstances are alleged. The details are unimportant for a blog post. According to statements of California courts, including the California Supreme Court, the purpose is to determine “whether the best interest of the minor and of society will be served” by keeping the child in the juvenile system. In other words, the purpose of a fitness hearing is supposed to be to determine whether a juvenile is “fit” to be tried and convicted — because, as you’ll see, if a fitness hearing is considered, there will never be a question of finding the allegations not true — within the juvenile “justice” system.²

In reality, the purpose of a fitness hearing is to transfer a juvenile to the adult court, to be tried and convicted, or plead out by his attorney, and punished, as an adult.

Because, again, the question of guilt never really is considered.

In fact, under California law, for purposes of a fitness hearing, guilt is presumed.³ You cannot even argue it. However specious the evidence may be against your client, the best you could possibly do is use evidence tending to show innocence as hopefully also capable of showing that your client — the child you defend — is still fit for adjudication in the juvenile “justice” system.

As you will soon understand, only in the extreme case where somehow, some way, the prosecution screwed up and actually charged a juvenile who everyone quickly realized was probably one-hundred-percent innocent — only then could you possibly successfully utilize the evidence to also show that he was fit to remain in the juvenile system.

This, as I said, has nothing to do with the law. It has everything to do with those enrobed and entrusted to apply the law. But the days when the judiciary cared about the law — if they ever existed (and a frequent criticism I hear from many older lawyers is that I pine for a time that never existed) — are long gone.

Today the judiciary is just another arm of the government, coterminous with law enforcement and the prosecution. Only in the most egregiously obvious or easy of cases will the judiciary deviate from the co-extensive governmental bounds to which it has adapted itself.

There is more than one way a juvenile — a child — can come to a fitness hearing. Under certain scenarios, the prosecution will have to prove that the child is unfit. The scenarios I’ve always had to deal with require that the child is presumed to be unfit.⁴ Then I have to show by a preponderance of evidence, that my client, the child, is actually fit; in other words, that the prosecution and probation departments are wrong.⁵

There are five criteria to assess in determining fitness.⁶ The child must prevail — using the preponderance of evidence standard — on each of the five. Lose one, and you’ve lost the whole enchilada.

Or child, as the case may be.

The factual findings made by the juvenile court judge will be upheld on appeal if supported by “substantial evidence.”⁷ Surprisingly, to those who speak English instead of courtspeak, this is a significantly lower standard than “preponderance.”⁸

So what are these five criteria?

As defined by Welfare and Institutions Code section 707, in each of the subsections which cover them, they are:

1. The degree of criminal sophistication exhibited by the minor.
2. Whether the minor can be rehabilitated prior to the expiration of the juvenile court’s jurisdiction.
3. The minor’s previous delinquent history.
4. Success of previous attempts by the juvenile court to rehabilitate the minor.
5. The circumstances and gravity of the offense alleged in the petition to have been committed by the minor.

In virtually every fitness hearing in which I’ve been involved so far, the Probation Department writes a report in which it recommends that the child be found fit in regards to numbers 2, 3, and 4 above. In virtually every fitness hearing in which I’ve been involved so far, the Probation Department writes a report in which it recommends that the child be found unfit in regards to numbers 1 and 5.

Remember: lose on one, and the child is gone. History. Thrown away. The court washes its hands. The child ceases to exist. He is now an adult.

Even when he’s not.

I almost always write my own fitness hearing brief in which, naturally, I disagree on the recommendation for a finding of unfitness. My points are nearly always variations on the same thing: the law doesn’t allow it.

Why? Because in virtually every case in which I’ve ever been involved, the Probation Report finds the child unfit based on the fact that he committed the crime. For example, in the last fitness hearing I lost, probation had stated, “The minor should be found unfit as to criminal sophistication on the basis of having used a weapon alone.”⁹

But, as I said, the law does not allow that as a basis for finding the child unfit. As multiple courts have noted:

If we were to accept this reasoning, which we do not, all fitness hearings involving a minor charged with any of the offenses enumerated … would reach a foregone conclusion and thereby be deprived of purpose. Such a result is impossible to reconcile with the language of [the statute], which clearly does not create a mandatory or irrebuttable presumption.¹⁰

As I have said in more than one argument to a trial judge:

“Clearly, the legislature intended that the court should exercise its discretion on the facts of the individual case….” William M., 3 Cal.3d at 30.

In doing so, the court should take into account not just the nature of the offense in the abstract, but also the facts specific to the crime alleged against the individual. See, People v. Dillon, 34 Cal.3d 441, 479, 194 Cal.Rptr. 390, 668 P.2d 697 (1983) (emphasis added). The California Supreme Court stated that a juvenile can use police reports and other submissions to the court “to argue that his participation was not as grave or serious as the charge would initially lead a court to conclude.” Jones, 18 Cal.4th at 682, quoting People v. Superior Court (Zaharias), 21 Cal. App. 4th 302, 307, 25 Cal. Rptr. 2d 838 (1993)(emphasis added).¹¹

This argument, however, has never swayed a judge before whom I’ve appeared yet.

In one case I handled, where a child was charged with first-degree murder, the child in question had been born nearly dead.¹² So deprived of oxygen was he that his intestines began to rot and sections of them had to be cut out within days of his birth. You can imagine the impact the original insult had on his brain. The subsequent “short bowel syndrome” meant further insult due to nutritional inadequacies. The child was alleged to be part of a group which killed a man. The murder was a terrible crime. Horrific. Ugly. Most decidedly uglier than your typical murder. But eyewitnesses at the scene saw two figures — they could not identify anyone — standing apart, not participating, who then ran away. My client was interviewed and — there’s no other way to put this — tricked into saying that he actually hit the man “once.” During one part of his “confession,” he alleged he hit the man “once” on the leg; during another part, after the interviewer had repeatedly rubbed his own belly while asking the question, he said he hit the man “once,” but this time his “once” was on the abdomen. My world-known expert testified for two days concerning the child’s mental capabilities. If you cobbled together one million children, you could find approximately a thousand who were as bad off as my client. A thousand sounds like a lot, unless you remember you have to go through a million to find the thousand. Oh, and if you believed all the evidence, he was given beer by the other kids, which he drank until he threw up. After which they teased him mercilessly and had a good laugh. According to the expert, who had authored over 225 peer-reviewed journal articles and led symposia over 80 times in numerous countries throughout the world, my client was probably so overwhelmed as to be frozen in his tracks while the murder occurred before him. And remember, I had eyewitnesses that at least two figures appeared to be standing back, not moving. Just standing there frozen.

But this was not enough to overcome the preponderance of the evidence standard. Because someone killed a man. The child was present when it happened. Whatever the degree, whatever the level, of his own involvement, the circumstances and gravity of the offense were horrific. However mentally impaired he was, his level of criminal sophistication was too high, because he did not run away soon enough.

The prosecution never bothers with a brief. There’s no need. The law as I stated it above is crystal clear, but no judge I’ve ever seen will follow it. So why should a busy prosecutor waste time, energy, and paper writing a brief, even to refute my points and authorities?

Which brings me back to my friend, the civil law attorney. Based on what she’s told me, I agree that the case is as good as they get on the issues involved in it. As I said, I won’t give details. I will only tell you that it involves medical marijuana. I agree with my friend that if ever there was a case that shows law enforcement is not only pursuing criminals who cover their illegal activities under the guise that they are exempt, but is going after anyone at all who possesses marijuana, this is the case. It’s possible — possible – that because the individual being targeted is destitute and because it’s such a clear-cut case, I might be willing to take it on pro bono.

But I’m not at all certain it’s the no-brainer that my friend thinks it is. I’m not at all sure this will be the “poster child” for all that law enforcement is doing wrong in going after individuals like the one she is referring to me.

It’s not because the law is against this person. Not all all. Not even remotely.

It’s because I’ve been a contestant a number of times already on The Judicial Reality Show.

Comments

• February 9, 2012, brenda A. Linder writes: Bravo Rick. And, you are correct... I do not like this. I am not speaking of your blog but of the failings of the system; more specifically, those with power within the system. And, you are accurate on many more points, as well. I am not experienced in criminal law. I probably do not even know enough to keep myself out of jail. Although, I am practicing committing your number t heart. I do recall in Constitutional Law, however, that the government is supposed to have probable cause that a crime has been committed, and that this person committed it, prior to search/seizure/arrest. Since I began practicing in this system do I think that's the way it actually works? Heck no. Am I still idealistic enough to think the community needs to see/know when their elected officials and law enforcement officers are abridging this fundamental protection? Yep. Although I think most people turn a deaf ear to violations of constitutional rights when it does not involve them or their loved ones; labeling lawyers' and defendants' protest against such governmental actions as "loopholes," "technicalities," and the like, I think the general public needs to be reminded of history - "If your neighbor is taken away and you do not stand up and fight for him, then who will be there when they come for you?" I've always said, whether one sees an acquittal/suppression/dismissal based on violation of one's constitutional rights as a "loophole' or as a valid correction of the government's wrongdoing, is usually determined upon which side of the fence one is standing. If its my daughter or mother wrongfully accused, the Constitution and the system have worked properly. If the "criminal" accused of harming my daughter gets off....its on a technicality and the system sucks.

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1. Maybe this will change one day. It’s becoming harder and harder to make a living in this economy based on doing only criminal defense. Potential clients have less money and, unlike the world of civil law, they have the option of going with a public defender.
2. People v. Superior Court (Ronald H.), 219 Cal.App.3d 1475, 1479, 269 Cal.Rptr. 4 (1990), citing People v. Chi Ko Wong, 18 Cal.3d 698, 718-719, 135 Cal.Rptr. 392, 557 P.2d 976 (1976).
3. Rene C. v. Superior Court, 138 Cal.App.4th 1, 10, 41 Cal.Rptr.3d 71 (2006).
4. Rene C., 138 Cal.App.4th at 10.
5. Id.
6. People v. Superior Court (Jones), 18 Cal.4th 667, 682, 958 P.2d 393 (1993).
7. Marcus W. v. Superior Court, 98 Cal.App.4th 36, 40, 118 Cal.Rptr.2d 919 (2002).
8. I can’t point you to a case that actually states this. You have to look at the results of cases where “substantial evidence” is considered. Oh, and be sure to look at the ones where the burden is on the prosecution, or where a lower court judge’s decision is in question. If you look at cases involving “substantial evidence” where the burden was on the defense, you will find that “substantial evidence” is suddenly a very, very high standard. If I made my living studying linguistics, or if I were independently wealthy and could devote the time to it, I would write an article on the way these standards, defined by exactly the same labels, change, depending on whether you’re a government agent, or a defendant.
9. Without pulling the file, I believe that is an exact quote. It was so stunning to me that they would actually say such a thing that it was seared into my brain.
10. Jones, 18 Cal.4th at 682-683, quoting and citing Edsel P. v. Superior Court, 165 Cal.App.3d 763, 777, 211 Cal.Rptr. 869 (1985)(emphasis in Jones); In re William M., 3 Cal.3d 16, 30, 473 P.2d. 737 (1970).
11. The internal cites here may be “incomplete” in the traditional sense, because this is an extraction from one of my own briefs.
12. The details of this case are now a matter of public record, since I lost the fitness hearing and the child’s family subsequently told him to accept a plea agreement that resulted in 11 years for manslaughter.

But what someone has — or, rather, a few very rich someones have — been trying to do is a crime.

So today, I’m writing about SOPA/PIPA. Sounds like some kind of disease, doesn’t it? Soh’-pah pih’-pah. Maybe a virus.

And it is, actually. It’s the most powerful Internet virus yet.

SOPA/PIPA are bills being debated in the House of Representatives and Senate respectively to make it easier for the entertainment industry — essentially those wonderful folks from the MPAA — to shut down Internet websites that they think are infringing on their intellectual property.

Download pirates strike fear into MPAA and the U.S. government, causing them to become insane.

The MPAA, for those who have been living under a rock, is the company that likes to sue grandmothers, even dead grandmothers,  homeless people, filed thousands of other lawsuits, some of which were utterly ridiculous, targeted downloads of movies they for which they might not even own rights, and even hired hackers — because the MPAA is all about making everyone 100% legal – to go after its enemies.

You can read more about how wonderful the MPAA is over at TechCrunch.

So they’ve tried using lawsuits. They’ve tried using hackers. They’ve tried co-opting law enforcement agencies to work as their own private police force. (They’ve had some success, as some police forces even use deadly force to stop movie pirates.) Now they’ve decided it’s necessary to give the entertainment industry control over who can access the Internet.

All this, for nothing.

And now they’re pissed that people are fighting back.

I think Ken at Popehat put it best. Ken quotes an MPAA press release, which states:

Only days after the White House and chief sponsors of the legislation responded to the major concern expressed by opponents and then called for all parties to work cooperatively together, some technology business interests are resorting to stunts that punish their users or turn them into their corporate pawns, rather than coming to the table to find solutions to a problem that all now seem to agree is very real and damaging.

As Ken explains,

Only the MPAA and a used-up ex-Senator like Dodd could imbue “technology business interests” with a mock-populist sneer whilst lobbying for one of the titans of American business interests. Note also the sneer at internet users, who are mere “pawns” of sites participating in the blackout.

The only thing I can add to that analysis is to explicitly point out the irony Ken impliedly notes: the MPAA complains that people opposing the MPAA attempt to turn everyone (and the Internet) into mere pawns of the MPAA are doing so only because they are “mere ‘pawns’” of those who oppose being made into MPAA pawns.

Okay. Maybe I could have said that better.

It is, however, that convoluted. The MPAA wants control of You, the Internet, and Everything. They want to ensure it all exists for their benefit alone. Anyone who protests is a mere tool of…um…those who protest.

Well, I’m fine with that. I’d much rather be my own tool than to be moved about as an MPAA pawn. As I understand it, if SOPA/PIPA were to pass, my own website might one day be shut down on a trumped-up infringement charge. (For the record, most of the media I use here is purchased by me from iStockPhoto; some is created by me with my own camera and Photoshop; some may come from other sources, but, so far as I know, via linkage or by virtue of being in the public domain.)

And speaking of tools, SOPA/PIPA could become a mighty-fine tool for the government to use to shut down websites whose speech they dislike, while pretending not to violate the First Amendment.

Don’t believe me? Ask people who get arrested after shoplifting pens and pencils, or packs of gum, and charged with felony burglary because misdemeanor petty theft doesn’t satisfy the government. In my own experience, these are what I call “tonal crimes” — if your skin is the wrong tone, you’re a burglar; if it’s the right tone, you’re charged with petty theft.

In any event, SOPA/PIPA is why a number of websites, including this one, will be offline for at least part of the day on January 18, 2012. Want to know that the potential impact of SOPA/PIPA could be?

When you see all the sites that go offline tomorrow, just imagine if we were shut down not by our voluntary protest, but because we’d pissed off the wrong people, and they had SOPA/PIPA in their toolbox.

Comments

• February 13, 2012, Kate writes: No doubt that copyright infringement and inflammatory content on social media are serious issues, but blocking or censoring is not the solution. You block one domain, a hundred other can spurt. You censor Facebook and Twitter, people move on to Tumblr. Till date no serious crimes have occurred due to social media. On the other hand the power of social media was on display during Arab Spring earlier this year. Draconian laws like SOPA or censoring social media sites, as Kapil Sibal has proposed, will only provide certain authorities the power to control the flow of information. This is not acceptable in free society.
• February 20, 2012, Lacey writes: While I believe that there should be a form to “protect” copyright infringements, I think that the way the SOPA as it looks, may seriously hamper the overall efficiency of the internet… It comes to a point that I have to think if when writing a post, I can or can not use say the word “Apple”…

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Take these two cops, for instance.

Green says he and his fiancée couldn’t believe what they were seeing and he videotaped the incident.

I couldn’t believe it. He seen me taping. He looked up at the camera a few times, and he still hit her like that, and I can’t believe he didn’t try to diffuse the situation at all,” Green said.

Unlike Green, though, I know why the cop “looked up at the camera a few times, and…still hit her like that.”

It’s because he figured that video would never see the light of day. Across the country, police are striking citizens, giving “beatdowns” to citizens, even killing citizens and then, in addition to burying citizens, they work to bury any evidence. In the old days, this was called a “coverup.”

Today, it’s Standard Operating Procedure.

Don’t take my word for it, though. You can see it for yourself:

• Police Arrest Illinois Man for Videotaping Traffic Stop
• Rochester Woman Arrested After Videotaping Police From Her Own Front Yard
• Cooper Gets Arrested for Videotaping Cop
• NH Man Arrested for Videotaping Cops…Again
• Police inquiry reveals violations in arrest, beating of videographer
• Navy Vet Arrested After Videotaping Police In Tampa
• Growing Number of Prosecutions for Videotaping the Police
• Wis. man sues police over arrest for videotaping event
• Loyola Professor Detained For Videotaping Teen’s Arrest

They aren’t afraid of going after the press, either.

• News photographer arrested on Long Island for videotaping police
• Clint Fillinger, Photojournalist, Arrested For ‘Resisting’ Milwaukee Police After Filming At Fire Scene
• Three-time Wisconsin ‘Photographer of the Year’ arrested during Occupy rally
• [Journalism] Faculty member handcuffed: Videotaping sparks police incident
• Insane Cop Arrests ABC News Reporter For Filming Traffic Accident
• Police vs Reporter, US – ABC TV Crew Pulled Over, Gunpoint

This is happening despite the fact that the courts have repeatedly ruled in favor of those doing the videotaping.

• Norfolk Man Who Refused to Stop Videotaping Police at Demonstration Is Not Guilty of Disorderly Conduct
• Court upholds ‘citizen’s right’ to film cops
• First Circuit Upholds Right To Videotape Arresting Officers
• Judge says recording police stop OK

There’s one thing this boneheaded cop didn’t count on, though:  Jermaine Green is a United States Army veteran who had just returned from six-years in Iraq and Afghanistan. The cop obviously did not know that when he tried to intimidate Green into giving up the video.

Among the other things the big bad cop who has to beat up on mentally-challenged women wasn’t aware of, one was the Army motto: “This We’ll Defend.”

The police are nothing, however, if not resourceful.

A sheriff’s department spokesman told NBCLA over the phone the department would not…look at the videotape….

You know the old saying, “Out of sight, out of mind.”

The thing is, it’s not out of our sight: the cop is out of his mind.

This is the world police state in which we now live. Anytime anyone sees the police approach a citizen, cameras should be whipping out all over the place.

Comments

• February 14, 2012, Heidi writes: I think this cop should get some time for his behavior...I have a sister that is mentally disturb and If that cop would have hit my sister he would be a died soul. A mental person can't help themselves for your devilish to hit that woman u should be ashame of yourself. I need your punching arm cut off so that u wouldn't lift your hand to hit a handicap ever again.

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Let’s see if that helps me give form to my thoughts in a way that you, dear readers, might begin to develop a similar, hopefully less-inchoate, irritation on the issue. Perhaps we can even arrive at a place at least more solid and substantial than President Obama’s backbone.

Americans these days have amazingly short memories. It wasn’t always so. In fact, had it been so, the original United States of America would never have come into being.

The Founders of the original United States of America, not this bastardized version that has supplanted it and in which I now find myself stuck living, had a rock-solid historical ground from which they drew the greatest ideas to use as building blocks for the federal republic they constituted.

Nearly every one of them appears to have been well-read in the ancient political and philosophical treatises of Greece and Rome, as well as much else of what we might today call “The Great Books of Western Civilization.” They didn’t just know of them, as one might if one paid very, very close attention in an American university these days; they had digested them.

In addition to this “book-learning,” they had a ready grasp on the historical failures of nation-states that opposed freedom, including particularly the one against whom they had fought for their — for our – independence. The history of the country from which they had broken included both positive and negative lessons, from Magna Carta to the Star Chamber.

When you “listen in” on their own discussions, by reading the letters they were always writing one another, you clearly see how the best ideas and the worst mistakes combined to bring about something new, something that became known as The Great American Experiment.

As the Experiment was being announced, Alexander Hamilton, writing the first of many Federalist Papers, noted:

[I]t seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.

In all the history of the world before then, there had been much discussion, much learning from mistakes, but no one had ever before come up with a plan calculated to “establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to [a People] and [its] Posterity” by establishing a limited government which was, nevertheless, “democratic.”

The Constitution of the original United States of America, the Great American Experiment, was the first.

I’m fond of pointing out that Nazi Germany did not spring fully-armored from the brow of Hitler. A counterpoint is true regarding the United States Constitution: it did not spring fully-formed from the minds of the Founders.

It had a history. Experiments in democracy — though not quite like ours — had existed before. Athenian democracy was known at least 2500 years ago. Maybe longer. It was probably about the closest thing to a “true” democracy that there ever was. As far as the Founders of the United States were concerned, it was most instructive for demonstrating how unlimited, unchecked power was harmful even when exercised by the People, instead of oligarchic leaders.

There are many other examples in the history of democracy.

Before their government formed an Empire, the Romans made an attempt at something similar to a democratic form of government. Ironically, in many ways it more closely resembles what the United States has become today: a show, with all the appearance of a democracy, where the true power lay in the hands of a few wealthy elite.

But while I’m here to talk about the importance of history in helping us all remain free — while I’m writing about the importance of history, or, more properly, the importance of our knowledge of history — I’m not really here to give a history lesson. I’m afraid I’ll have to leave that as a highly-recommended exercise for the reader.

My point is not to teach history, but to make an argument for its importance. If we wish to remain free People.

That history I wish you all knew was debated in the constitutional convention and hammered into the original United States Constitution which finally emerged therefrom — still not fully-formed. Like a child, both the original United States and the Constitution itself had what we might call “formative years.” The ideals it laid down, however tightly-woven they were, still needed to be shaped to direct the flow of a growing democracy and keep it pointed in the right direction.

And for much of the early history of the early pre-bastardized United States of America, leader who were equally well-educated lovers of freedom assisted in its formative years.

Then along came the first in what was to be a line of dictators beholden to big business: Abraham Lincoln, the railroad lawyer.

Oops! Did I catch you by surprise? (To be honest, I caught myself by surprise a little bit: when I started writing this blog post, I didn’t expect to talk about Good Ol’ Dishonest Abe.)

And while what I just said is very much true, I’m going to skip over all the supporting history — again, consider it an exercise for the reader — to end with this: the reason that a bastardized version of the United States, one which does not deserve to survive, has taken the place of the real United States of America, is that you — all of you — have forgotten history.

In particular, you’ve no clue about the history our Founders knew. The Star Chamber. The Magna Carta. The Romans. The Greeks. For all but about one percent of you (and that’s no coinkydink), those are just so many words.

There’s a reason for that. Believe it or not, it goes back to Dishonest Abe’s bosses, before he became President. I’ll let George Carlin explain, but I hope you’ll think about what he and I have to say, and do something about it.

Comments

• January 9, 2012, Eric L. Mayer writes: Rick, this is really a great post. It has passion, the issues are ripe, and your heart shows-through. But, I think it is wrong. Our system, like every other system of government created, ever, is made by those who have all the power. Generations of those with power bequeath it to the next generation. They do this until the system breaks or they are overtaken by others who have more power. There are highs and lows, dissent and occasional revolution, but the system always returns to its natural, harmonic states. Those privileged enough to create a system of government also have the privilege to create it in a way that satisfies their needs. Those founding fathers were the ruling class of the colonies. They didn't like the then-existing government because it put limits upon their ability to increase power. They were all in debt to those who controlled the British government (both financially and otherwise). Were they truly kindly and seeking to make everyone equal, there would be no electoral college, and their obvious issues with brown people.....well.....you know. The fact is that those with all the power (whether drunk, sober, sane, or insane) know two important things about the masses, and they have known these things through and throughout: 1. We all have something to lose. 2. When we are comfortable (in whatever ways comfort us), we stop paying attention.

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I hate that people use it; I hate to hear it. It’s pointless, usually slanderous, and in almost all cases — except perhaps in Kings County, California, where it is said contract attorneys will lose their contracts if they upset the prosecutors in their black robes judges  – unwarranted.

I’ve never been a public defender. But when people ask, “Are you an attorney, or a public pretender?” my reaction is “a what?! what’s that?” I know exactly what they mean, of course, but I ask it in a tone that (I hope) communicates that I’m wondering if it’s some street performer, maybe a homeless actor or comedian.

And that I’m quite amused that there’s a name for such persons.

After they explain, I actually take some time to try to disabuse them of their erroneous beliefs regarding public defenders. I ask them: if you had to have difficult surgery, would you want the person who did your kind of surgery at most a few times a year, or the one who does it perhaps a few times a month?

That’s what you get, when you get a public defender: someone who sees more criminal cases in a month than most private attorneys see in six — possibly more than most private attorneys see in a year.

They certainly do more trials. While everyone loves — at least I think all us defense attorneys do! — being in trial, trials are expensive, and not just for the client. First, there is a significant amount of preparation that goes into getting ready for trial. Trying to figure out how to get the client, who has already paid a bundle for representation, to fund the investigation, can be difficult. If, as is often the case, your client was barely able to pay for representation, you’re going to be trying to convince the court to foot the bill for your suddenly “indigent” client.

Trials are tough in another way, too: the intensity of focus that must be maintained — listening to your client whisper suggestions (or complaints) in your ear, or reading the notes they insistently thrust at you; observing the witness for visual cues, in addition to whatever he or she is actually saying; watching jurors, trying to divine what’s working, what’s not, and where to place the emphasis in your client’s story; watching the prosecution to see if there’s anything you can pick up from them; and, of course, making sure the judge stays awake.

But finally, there’s the biggest hit of all: private attorneys are nearly always not just attorneys; we’re also business owners. When we’re in trial, though, we’re not tending to the business of law. We’re not meeting other clients, or potential clients. We’re not (usually) making our other, “minor” court appearances. We’re not working on anything pertaining to our office itself. While you’re in trial, you’re usually not doing anything else. You’re sure as hell not blogging!

You’re going to be at the courthouse usually from the time it opens until it closes, working the trial.

Then you’re headed back to the office or home to prepare for the next day of trial.

Public defenders don’t have to worry about such things. When they have to do a trial, they just go do it. (Well, okay. Never having been one, I’m guessing on this.) They have colleagues who are tasked with covering for them.

For all that, plus the “extra coverage” from which an indigent client benefits by virtue of there being more than one public defender, clients are not going to be charged thousands, or tens of thousands, of dollars. So the attorney isn’t hampered in doing a trial and the client can afford to go to trial, if that’s what he or she wishes.

That adds up to one thing: public defenders are more likely to go to trial than private attorneys, more often.

Which gives them more “practice” at the practice of law.

Then why hire a private attorney at all? Why not just go with the public defender always? Why do they get such a bad rap? Why do the people who benefit call them “public pretenders”?

There are really three reasons. One is that they’re free. The second is that public defenders are overburdened with work. The third reason is related to plea bargains.

People typically do not value what is free. Even if you hire a private attorney and he does as bad a job as — or worse than — you think the public defender is doing, you’ll tend to believe your attorney is better. This is because not only do people not value what is free; they hate to admit they made a mistake and gave a ton of money to someone who is not better than what they think they would get for free.

The fact that public defenders are overworked doesn’t leave them a lot of time for “extras” — what some call “hand-holding” and some of us just think of as an open line of communication and accessibility for our clients. A public defender and a private attorney may handle the case nearly identically, but public defenders are so busy with the number of cases that they don’t have time to chit-chat with clients. This kind of goes back to the point made above, that private attorneys aren’t just attorneys: we’re also business people. Any business person who doesn’t remember that happy clients are necessary if you want to stay in business — well, that person isn’t going to stay in business long. Clients who feel abandoned by their attorneys are not happy clients. Clients who don’t understand what’s happening in their cases are not happy clients. The sad truth is that the public defender may be working the case better than the private attorney, but the lack of time means they don’t tend to clients’ psychological needs which may have little to do or nothing to do with the legal issues themselves.

The third thing I noted — plea bargains — has always struck me as interesting. On more than one occasion, I’ve noticed that when public defenders talk to clients about plea bargains, the clients think they’re being sold out. If a private attorney later comes in with the same offer, it’s accepted — and the client sometimes even acts as if the private attorney did some wonderful magical thing for them which no public defender would ever do. Note what I said: same offer.

Obviously, this is also a perception problem. I’m just not sure why it occurs. It could be related to the same thing that gives public defenders all their experience: they just have more cases. More cases also mean more cases that are going to end in plea bargains. A private attorney’s client doesn’t usually get to see her interact with her other clients, whereas clients sit there for hours sometimes watching the public defenders deal out case after case. Or maybe it’s just the same as the other perceptual issue noted above: maybe the public defender workload means they spend less time explaining and eliciting questions when communicating offers.

Whatever the reason, the fact of the matter is that, for the most part, public defenders are selfless, hard-working, committed individuals. Many of them could work less hours and make more money if they left the public defender office and became private attorneys.

I’m sure there are some bad public defenders, just as there are bad private attorneys. I don’t personally know any bad public defenders (I do know some bad private attorneys). I tell people who say things like “public pretender” that those who are bad probably can’t last long in an office. They have oversight, a.k.a. bosses, who can remember from one case to the next. That’s not really the case for private attorneys.

“You know what happens to public defenders who screw up and do a lousy job?,” I ask people. “They become private attorneys.”

Now, if you can afford to hire a private attorney like me, then you should. For one thing, public defenders are already overworked; they shouldn’t be stuck working on cases they weren’t intended for. They weren’t intended to be gladiators for those who have the money to hire their own. They were intended to ensure that even the poor have their cases fought by a trained gladiator.

For your part, you’ll get someone who has more time to spend with you, even when it isn’t important to your case for that to happen. And you’ll perhaps help free up a public defender so that he or she has more time to spend helping people who aren’t as well-off as you.

Whether you are able to hire a private attorney, or not, know this: none of the public defenders that I know — with the aforementioned exception in Kings County (and I’m sure not all of them are bad) — are pretenders.

Comments

• January 13, 2012, Robert Goodwin writes: Mr. Horowitz, I just want to say thank you. I am a public defender in Washington state who just stumbled onto your blog and I am truly impressed and appreciate what I've just read. It is clear from what I've just read that unlike many private attorneys, you have integrity and do not compromise the truth in order to sell yourself to a prospective client. Reading this was a breath of fresh air and even though I do not practice in California I look forward to reading your blog posts in the future. Wishing you and your clients the best, - Robert Of the Pierce County Department of Assigned Counsel
• January 13, 2012, Rick writes: Thanks for your comment. It's not necessary to thank me for being honest, but I still appreciate the sentiment. Clients and potential clients know that I will be up-front and honest about their cases, as well, and that while I will work hard to bring about the kind of result they (we) want, I won't mislead them, either. I see no reason to be different when it comes to anything else, like talking about Public Defenders.

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