So what's the big deal?

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.

True versus False: A False Dilemma

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?

Pleading Not Guilty

The effect of one man and, more precisely, one man's wealth and fame on popular perceptions of the American brand of criminal justice is immeasurable. Of course I am referring to the original O.J. Simpson case. So many people who watched the case unfold more than 10 years ago feel that they learned one or more things about how the system functions, or malfunctions... The "lesson" cited most often is that guilty people sometimes go free; particulary wealthy guilty people.

I recall OJ making his first appearance on homicide charges where he declared that he was "Absolutely, positively, 100 percent, not guilty". I don't know who counseled him to modify the plea of "not guilty" but, if anyone did, it was more likely a publicist than a lawyer. "Not guilty" is one of only six permissible pleas to one or more criminal charges in California. Others are: guilty, nolo contendere, prior conviction, once in jeopardy and not guilty by reason of insanity. There is no legally cognizable plea of "Absolutely, not guilty" much less "Absolutely, Positively, 100 percent, not guilty". In all likelihood, OJ said it with so much emphasis because he knew the whole world of mostly non-lawyers was watching, and there is something about saying "not guilty" that just sounds, well, guilty.

The truth is, any time someone sets foot in a courtroom, as a criminal defendant, nearly every spectator and participant assumes that there must be some truth to the charge(s), otherwise the person would not be charged. So, saying "not guilty", however emphatic, lacks the persuasive force it would otherwise have. If we, as a society, weren't already conditioned to believe that nearly everyone charged is guilty, then we might actually listen with interest to what the plea is. What is not as widely understood is that nearly everyone who is criminally charged pleads "not guilty" - or at least authorizes an attorney to say it for them - at the beginning of the case. And there is a reason for this. Saying the words "not guilty" is the only legally recognized way to express the four most common states of mind held by a charged individual, which are: (1) "I am innocent",(2) "though I might be guilty, the state can't prove me guilty", (3)"I am guilty of some, but not all of the charges", or (4) "I am guilty as charged but am not ready to make a deal with the prosecutor right now". The lack of readiness may be because the charged individual wants to know more about the strength of the case against him and/or what the punishment will be, and whether any deal offered as of yet is the best deal he can get. So, "not guilty" is not a lie in cases where the person is actually guilty.

In traffic court you will hear people say they are "guilty with an explanation". These are, however, guilty pleas where the court is allowing the individual to blend their guilty plea with their argument for a lenient sentence. Such "pleas" are not permitted in non-traffic criminal court, and never result in anything other than a conviction of the charged offense.

To make matters more complex, there is a type of plea that permits an assertion of innocence along with a plea of nolo contendere. Such pleas in California are made pursuant to a case called the People v. West (1970) 3 Cal.3d 595. A "West plea" is most likely to stand for a plea which "does not constitute an express admission of guilt but only a consent to be punished as if guilty." Plea bargaining, which is often analogized with sausage-making, leads to many fictions and, at the fringes, injustices both large and small. A reality of our, and perhaps any, justice system is that people occasionally plead guilty to charges they didn't commit, and plead guilty to having done something criminal even where they haven't done anything criminal. This is what comes about by way of the immense legal leverage the legislature, and the voting public, has given to our prosecutors. It happens that people who are innocent sometimes agree to plead to a charge in order to eliminate a risk of a particular undesirable outcome (e.g., lengthy incarceration).

The most useful way to think about a criminal case, if you are the person charged, is that it is, at its core, a business transaction. The state wants one or more things from you and what you want in return is fairness. In many cases, the only way to achieve fairness in return for your eventual plea of "guilty" or "nolo contendere" is to, at first, plead "Not Guilty".

Policy on Drunkenness in Isla Vista has Changed

A source at the Santa Barbara District Attorney's Office has informed me that the policy affecting those facing their first stand-alone Public Intoxication charge, who are under 21, has officially changed. The year-long experiment has, apparently, revealed that the heavy-handed approach will not serve the greater ends of justice. It appears that numerous jury trials, tried by me and my public defender colleagues, made the point. So what's the point? Well, there are actually several: People are willing to stand up for their reputations as law-abiding citizens. They are not, always, going to lie down and take it, just because that's what the Government wants or expects them to do. They have a right to a jury trial, and are willing to assert it in order to answer to aggressive Government conduct. Out of the five Public Intoxications which were tried by jury since the change in the long-standing policy of leniency, only one resulted in a guilty verdict.

The costs of the "experiment" were huge. Among the costs were the human costs incurred by those who were needlessly criminally charged, the reputational cost of criminal convictions (affecting employability, academics, etc.) , the loss of driving privileges, the legal fees incurred by the defendants, the costs to the community of some 20 or more days of jury trial time (conservatively, $80,000 in salaries, and other costs associated with running a courtroom; not to mention the cost of significant time borne by hundreds of jurors and potential jurors).

I will, however, give credit to the District Attorney's Office for having both the courage and wisdom to change their minds and draw a curtain on the policy. The old practice of allowing first-offenders to take classes as a means to wash out the criminal taint and driving privilege loss associated with a Public Intoxication arrest made, and will make, a lot of sense. The hammer has its uses in the courthouse, but not when we are talking about a single instance of drunkenness while in college. The arrest, a night in jail, a hang-over, and some classes should [but doesn't always] resolve the problem. Now we should look ahead toward installing a sobering center in Isla Vista.