DUI Cops: Sung Heroes

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

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

True versus False: A False Dilemma

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?

Bill of Rights on the Table

The U.S. Supreme Court in District of Columbia v. Heller just held a D.C. law banning handguns violative of the Second Amendment to the U.S. Constitution. For the first time the Supreme Court struck down a law prohibiting firearms on Second Amendment grounds. The NRA is celebrating and so should the broader set of civil libertarians. This is not to say that there is anything particularly positive about the surge in handgun purchase and possession that this case will bring about. More guns means more shooting. More shooting means more death and maiming. Deaths and maimings are not generally cause for celebration. Justice Scalia, however, reasoned, essentially, that the clear (and "enshrined") language of the Second Amendment necessarily takes certain policy considerations off the table. In other words, arguing that a law banning handguns furthers a positive policy agenda (because it saves lives) is not going to compel the Supreme Court to ignore the plain language set forth in the Bill of Rights.

So, here's what I take from that: Unreasonable warrantless searches and seizures, coerced confessions, deprivations of procedural protections, inflictions of cruel and unusual punishment, restraints on free speech, interferances with the free exercise of religion, establishing an official religion, and myriad other deprivations of civil liberties by the government cannot, by Scalia's logic, be justified on the ground that they may further a positive policy agenda. In light of Heller I would now suggest a re-examination of the landmark U.S. Supreme Court case of Michigan v. Sitz, in particular. Why? Because the Court all but ignored the plain language of the Fourth Amendment to allow law enforcement to conduct systematic warrantless searches and seizures, in the shape of DUI checkpoints, to promote the positive policy agenda of preventing drunk driving. To argue that checkpoints are "reasonable" in a free society is to ignore a simple distinction: The other acknowledged exceptions to the warrant requirement (exigency, Terry, Leon, reasonable suspicion, etc.) do not deliberately and systematically cause the seizure and search of large swaths of law-abiding people in the name of crime prevention. The choice to allow these warrantless searches is done clearly in the name of a positive policy agenda which, as Scalia, would have it, should be "off the table".

Social Host Ordinance

Santa Barbara County is moving forward with an ordinance designed to "crackdown" and "get tough" on underage drinking and binge drinking. Of course the neo-prohibitionists among us see nothing wrong with giving the police more tools to attack the problem; and, indeed, there is little if any social utility produced by people under 18 getting trashed. However, I can't recall ever hearing a police officer say, "you know, I'm just powerless to stop underage drinking". Having been in the the thick of court cases surrounding this topic for many years, I can tell you that the Fourth Amendment plays a minimal role in deterring overly aggressive conduct of law enforcement agents. In Isla Vista, for example, there are many instances of police entering parties where they were not invited, and making arrests, issuing cites, seizing kegs, dumping out bottles of booze, and sending the invited guests on their way. It is plain that social ordinances are desired because they would allow police officers to enter any dwelling where a party is taking place where they reasonably suspect a minor is present without a warrant.

Avoid Jury Service At Your Own Peril

KEYT just ran a story alerting the public that the Santa Barbara Superior Court has just begun to crack down on people who scoff at jury duty even before they show up. Specifically, the Court is seeking to hold people who have failed to respond to postcards ordering them to call in for jury duty in contempt. The fine, depending on the circumstances, may be as much as $350. This young man, above, was interviewed and was asked what he thinks about this. His answer was that it was "unfair" because "it seems the Government is trying to weasel money out of people". I couldn't disagree more. The Government may, in some circumstances, be trying to weasel money from people, but not here. The Government is trying to get people, all people, to take jury service seriously and to show up and participate. The jury system is, by no means, a for-profit enterprise. It is, in fact, a very costly system which our nation's founders decided was a necessary check on Government power, and boy did they get it right. Even many prosecutors, who are greatly inconvenienced by juries, believe in the current system. Those that are accused of crime and civil litigants of many stripes are often thankful that they have a Constitutionally protected right to have the facts and/or dollar value of their case decided by a jury of their peers rather than by a judge who they may properly believe is in some small way beholden to their more politically powerful opponent.
Long live the jury system!

Never Drink (and Drive) and Dial!

Common sense has it that driving with a cell phone pressed to your ear is a dangerous activity. At last Senate Bills 1613 and 33 have arrived. Well, almost. As of July 1, 2008, you MUST either abstain from cell phone use while driving (gasp!) or contribute to the soaring profits of the makers of Bluetooth compatible devices. And, if you are under 18, you must refrain from cell phone use, while driving, altogether. However, driving while working to establish and maintain a link between your Bluetooth device and your cell phone, which is more of a distraction than holding the phone to your ear after pressing the speed dial button, is still legal (if not encouraged) by these new laws. Let's hope that this predictable, "Oops! I forgot to locate and activate my Bluetooth device" sensation (which I have already experienced a number of times while driving), does not result in more accidents. The best idea, of course, is to pull over and figure this out. This remains so in spite of the enduring legality of the act of hunting through your car's center console in order fidget with little buttons while driving.

I will here issue my final warning that this new law is going cause many traffic stops. After all, this is one of the easiest law violations for the police to identify and I predict that it will cause a surge in the number of traffic stops and the myriad arrests that flow from them (such as DUI's, Driving without license, etc.)

Off Topic: Get Ready for the 2008 Bud Bowl!

I am in a complete snit today thinking about how the corporate owned media is going to manipulate the public day in and day out for the next 5 months. The media giants are looking forward to record profits with every reason to expect that we will all be glued to our televisions while we try to get a sense of who is ahead in the race for the Whitehouse. There will be this opinion poll and that opinion poll, and the endless bantering and bickering among pundits. Presently it is all about whether Hillary is damaging the party by not endorsing Barack; as if this is a real concern that will prevail into November. The truth is, it will blow over. Those very few that are so disheartened about Hillary's defeat, and so much so that they say they are unwilling to vote for Barack (who, by the way, never said anything unfair toward Hillary in spite of being invited to do so repeatedly by the media), will either get over themselves, or they won't. Even if the media keeps fanning the flames of this so-called "issue", it won't make a difference in the outcome of the election. Yes, 18 million votes were cast for Hillary in the primaries. However, it is a complete fiction that those 18 million voters are not willing to vote for Barack unless Hillary "green-lights" it. Some of those people have already abandoned Hillary; and, in fact, they all should now that Barack is the presumptive nominee, regardless of what Hillary thinks. That's politics and it's nothing new. There are winners and losers, and Hillary is the loser; plain and simple. Hillary must accept that, much the way Al Gore did once the Supreme Court had spoken on whether the recount should continue in Florida. When it is clearly over, it is time to concede. That is called being a gracious loser, and Hillary is coming dangerously close to being a sore loser, if she hasn't already crossed that line.

If it is really about policy over personality, and what direction the country should head post-W, then any Hillary supporter would have to vote for Obama. Otherwise we could legitimately question their motives in voting for Hillary in the first place. After all, the major policy positions of Hillary and Barack have always been identical.

But, regardless, there will be a perceived neck and neck horse race (i.e., Obama's up, McCain is down and vice versa), and it's a big lie. Why? Because of one simple point:

If you don't already know who you would vote for come November (Obama or McCain), you are an imbecile. Sorry, but that's just true.

If you say you are undecided, and are not an imbecile, you are an attention-grabbing liar, who wants to be catered to and courted by the media and the two campaigns. They will sit down with you at the "kitchen table", interview you, invite you to participate in focus groups and bake you cookies, while you continue to fake that you are not an imbecile and/or undecided. Let's face it, the two candidates could not be more different on any scale you choose. This is not in fact the "bud bowl" as the candidates are way more different from each other than are any two bottles of beer. However, the analogy still works because the corporate owned media will prove that the public can be manipulated into believing that there really is a "decision" to be made that hasn't been made already. Oh, and just be sure to stay tuned through the commercials.