One of the more frustrating things about being a criminal defense lawyer is that you get to see how sausage is made justice is undone on a daily basis. Ordinary people don’t see the great breadth of daily and banal violations of due process and other basic constitutional protections now epidemic in the United States.
But it does have repercussions….
The things that develop as part of the routine in our courts have far-reaching consequences. When these things are implemented, we don’t think of those consequences. Many times, we can’t — until the thing has been implemented for awhile, we don’t fully comprehend the ways it will impact the world outside the cloistered walls of the courthouse.
The one that bothers me the most, I think, is the court’s abdication of its responsibility to guard the rights of accused persons. Our system was originally grounded on the United States Constitution not because of some desire to set criminals free, nor because those who established and voted on the Constitution thought the commission of crime was a trivial affair which should be impossible to punish, nor because our Founders were flaming liberals who couldn’t stand right-wing conservatives.
Our system was originally grounded on the United States Constitution because our Founders had long experience with the ways in which government could oppress ordinary citizens — both those accused of crimes and those not accused of crimes — when the safeguards to ensure both fairness and a restraint on governmental power were missing from the system.
It wasn’t because the Founders of our government believed that, without these safeguards, they would deliberately abuse citizens. They knew it was a natural consequence of any system that developed ostensively to deal with crime and justice. They — the Founders — were our first government and I doubt any one of them believed that he (the active drafters of our constitutional system were all men then) planned to abuse his power and mistreat citizens.
But they wrote protections into the Constitution anyway. Because, as I said, they knew that abuses creep into the system, despite our best efforts to keep them out.
Seventeen amendments to the Constitution were originally submitted to Congress. It appears there was some redundancy in this first proposed set of amendments — although that may be an artifact of hindsight; the original drafters may have recognized more nuance than redundancy — and some of the original 17 proposed dealt with issues of “housekeeping,” such as how to decide on numbers of representatives, and compensation.
These were whittled down to 12 amendments, but the whittling begins to highlight the protections for people who might be disfavored by the ruling government, including primarily people accused of crimes. And a preamble specifically mentions that the “Conventions of a Number of the States” were concerned about the potential for “Misconstruction or Abuse of [the new government’s] Powers.”
The States, of course, then went on to ratify 10 of these amendments, which became known as the Bill of Rights. The first two amendments, which had dealt not with specific rights of citizens, but with determining the numbers of representatives and their compensation, were not ratified. (The original second amendment — dealing with compensation — actually became the 27th amendment, ratified May 7, 1992.)
Like the original ratifiers of the United States Constitution, my concerns are also for the “Misconstruction or Abuse of [governmental] Powers.” I may be a criminal defense attorney; that does not mean I support the commission of crimes. I’ve tried explaining this before. But my dislike for the commission of crimes is not limited to disliking the commission of crimes except when it is the government that commits them. In a sense, I hold the government to a higher standard.
Especially when, as Paul Kennedy reminds us, there are real people sitting next to me and the consequences of conviction are very real: we should do everything to make certain such a conviction is deserved. And earned.
But, as I’ve also written before, our government has grown old. Our judicial system, too, is old. Unlike some judicial systems, ours refuses to grow wise with time. The safeguards that were built up over centuries of experience by former judicial officers are forgotten — abandoned, even — by our judges.
The result is an unchecked misconstruction or abuse of power by other branches of government, suborned by the courts themselves. You see it when bailiffs make up rules for the courtroom, like that a sister cannot come in for her brother’s arraignment in juvenile court or that anyone in a courtroom is required to provide a DNA specimen, which have no basis in law. You see it when an attorney tries to visit a client in jail and is told, instead of being given an attorney-client-privilege protecting private conference room, that she must visit her client in the bondroom, separated by glass, using the phone which normally records such conversations, while members of the public sit on either side. Or when the attorney is told that, unless a waiver waiving all the attorney’s rights is signed, no visit will be allowed. You see it when evidence, such as videos, cannot be viewed privately by the accused, because deputies refuse to allow the laptop into the jail. You see it when everyone in custody is, in accordance with the sheriff’s policy, and in direct violation of the law, is brought to court in shackles. And you see it when law enforcement officers lie — as they do routinely (especially in DUI cases) — in order to make their cases. (And rare is the exception where a court recognizes a Brady duty regarding lying cops.) You see it when the United States Supreme Court willingly admits that it does not follow the law, and then deems that a good thing.
Many, if not most, of the things that work to destroy our democratic republic are done “for officer safety.” These things range from protecting police officers who break the law to allowing officers to search anyone who they might “need” to spend time with to the problems mentioned above of limiting access to the courts, or limiting access by defense attorneys to accused persons to pretty much leaving the choice of what to do completely to the discretion of officers, who will then do silly things like forbid accused — but presumed innocent people — from even exchanging mail with friends or family, to increase security; i.e., “for officer safety.”
So easily does “officer safety” trump constitutional rights and governmental limitations that police officers receive ongoing training in how to make sure that the officer safety problem is properly explained to courts, just to make sure the arrest isn’t thrown out. This is important because courts are less willing to trample constitutional rights unless officer safety which is “paramount” is shown to be in play. (That post, by the way, is mislabeled. It says, “officer safety is important, but not carte blanche.” The details appear to say the opposite: officer safety is “paramount” and because no officer said anything about being concerned for his safety, the court suppressed evidence.)
As I’ve noted before:
By refusing to protect citizens against government regulations, they gave the police a free hand, while at the same time granting the police the sole right to define what was legal. (Ingo Müller, Hitler’s Justice: The Courts of the Third Reich (1991) 49.)
The bogus attempts of the courts through the years to “balance” this officer safety “problem” against our constitutional rights have, as the Supreme Court has mentioned — in dissents — more than once, pretty much “balanc[ed] into oblivion the protections the Fourth Amendment affords.”
But it is time for the courts to do a little “re-balancing.” The police have become increasingly lawless as their concern for “officer safety” reinforces them in embracing a “warrior image,” with citizens as those who they must war against. Through their actions, increasing numbers of innocent Americans are going to prison, increasing numbers of Americans are being hurt, increasing numbers of Americans (Update 2/12/2017: Link broken) are dying.
As even some police officers are finally saying, it’s time to do something for our safety.