For those looking for a post bashing the police, you will be disappointed. For those looking for a post praising the police, you will likely be disappointed, also (but only because you’re never happy when my praise is not unqualified). This post is not exactly about the police, although it necessarily discusses them quite a bit.
This post is something I began thinking about writing on the day two law enforcement officers were killed in Minkler (2015 update: I should learn not to link to Fresno Bee stories; they always disappear after a short time) and another was wounded by a deranged individual who planned their deaths, as well as his own. This post is about my worship of law enforcement.
People who know me — and particularly the many law enforcement officers who, I’m told, “don’t like” me and call me “the shackle guy” because of my motions to get shackles off children in juvenile court — will be surprised to hear that I’m writing about my worship of law enforcement. They will, perhaps, be expecting a trick. A play on words.
They will expect this because I frequently rail against law enforcement agencies and officers in my postings on this and my more generalized criminal defense blog, Probable Cause: The Legal Blog with the Really Low Standard of Review.
While there is no trick per se in what I’m writing here, those expecting a play on words are neither entirely wrong, nor entirely right, as you will soon see.
Scott Greenfield, as usual, provides an assist in my thinking on this issue. Although I began thinking about this post, as I said, after hearing about the Minkler shooting, I have had a hard time trying to figure out how to put my thoughts into words. I’ve ruminated on it a great deal — it seems to me almost constantly — from then until now. How can I write what I think in a way that gets the message across, without upsetting those who have suffered a great loss, those who sympathize with those who have suffered a great loss, and without causing those whom I at least partly exist to serve to think that I do not, in fact, at least partly exist to serve them?
I worry about this because no small part of what I have said and have to say is, indeed, a complaint about law enforcement agencies and officers. In fact, it extends beyond them to all others who claim to aim to uphold the law.
For as Scott notes,
There are two sides in our system, the prosecution and defense. While those of us who practice criminal defense, and those Americans who appreciate that such a thing as the defense exists, extol the virtues of our side of the equation, this op-ed [the op-ed to which Scott referred is here] and the reactions to it serve as a painful reminder that the more “official” voices of the system barely tolerate our existence. We are, at best, a necessary evil.
And it is hard to know how to reach out in sympathy — as I have wanted to do over the Minkler shootings — to those who consider you to be the embodiment of, at best, a necessary evil. For I am necessary, but I am not evil. To quote Scott again,
We do honest work. We are as much a part of the system as any prosecutor. Our contribution is vital, for without us there can be no system. Contrary to the attacks of the ignorant and angry, we do not support crime or terror.
To those who worship law enforcement, we are as necessary as law enforcement agencies and officers. prosecutors and judges. It is not a huge exaggeration to say that we are Guardians of the Justice System. The job of the police — and by that I mean city police, county sheriffs, state police, or any of the others we typically think of as “law enforcement” — is to arrest those they believe have broken the law. The job of prosecutors is to make some evaluation of this, hopefully with an eye towards seeking justice and dismissing those cases where there is signfiicant doubt, but to go on to seek the punishment of those who they believe have broken the law. My job is to make sure the justice system works.
I stand up and say, “Okay, Officer. Okay, Prosecutor. You think this person has committed a crime. Prove it. Beyond any reasonable doubt, prove it. Because the last thing we want to do is to take away someone’s life, liberty and pursuit of happiness erroneously.”
Contrary to the words of Police Chief Jerry Dyer in today’s Fresno Bee, defense attorneys do not “attack police and cloud the issue.” There is no “smoke” that jurors must “see through.” Law enforcement officers sometimes do things they should not do. They sometimes lie. They sometimes steal. They sometimes make up stories. They sometimes arrest the wrong people. Defense attorneys do not “attack police and cloud the issue.”
Just like the police believe — at least many of them believe — that our clients are actually guilty and have been justly arrested and prosecuted, so, too, do we sometimes believe the police have made mistakes.
We might not always believe they have mistakenly arrested the wrong person; we might be challenging them for having trampled the Constitution and the Law in the process of investigating or arresting. As I said above, though, we partly exist to serve our clients. We also exist to protect our system of justice, to ensure the Constitution and the Law are not casualties even in the pursuit of the guilty.
This is the system that centuries — centuries! — of thought, experimentation, experience and more thought have gone into building. It is the legacy our Founders left us. It is the bedrock of the greatness of the United States. We essentially invented the system we now have. Nations that have grown up after us have modeled themselves on us and our system of justice. Older nations have incorporated some of our inventions to build a better justice system than that they already had. And the insertion of criminal defense attorneys into the mix was not a necessary evil; it was simply necessary.
Jurors are not tasked with seeing through the “smoke” of defense attorneys who “attack police and cloud the issue.” They are tasked with making a determination about the facts. Did the State prove beyond a reasonable doubt that our clients did that which they are accused of doing. Defense attorneys raise doubts. When we do our jobs well, when we have raised every doubt for consideration, and those doubts have been carefully considered, then — and only then — can we be sure we are not convicting innocent people.
This job and ours — the job of the jurors and of defense attorneys — is complicated, however, by the worship of law enforcement officers which frequently supplants the worship of law enforcement. The officers are on the front lines. As the Minkler incident reminds us, they risk their lives to do their part to uphold most of our laws. To some extent — to some very minor extent — I risk my life doing my part, too (after all, some of the people I represent are murderers, rapists, or otherwise nasty people). But it pales in comparison to the risks they are exposed to daily. And, more than that, some of what they do is an attempt to protect my sorry ass from even the minor risks I face while doing my job. So it’s perhaps understandable that we honor them so much. They deserve to be honored!
But honoring officers should not be confused with worshiping them. They are not gods. They are human beings. Human beings who are often under a great deal of stress. And human beings under a great deal of stress sometimes do things they should not do. Sometimes they lose track of their goals, their jobs, their raison d’être. When they do, they should be as accountable — if not more so — as those they are tasked with investigating and arresting. But we do not rein in those we worship. How can a god sin? This is why we must avoid worshiping them even while we properly honor them.
This is where some of my friends — and even my own wife — have been confused. They mistakenly believe that I rail against police officers when, in fact, I rail only against the sins of police officers. In fact, much of the time, I’m not even doing that: I’m simply doing my job of challenging them, making them prove that what they believe is true is actually true, and trying to make them prove it beyond a reasonable doubt, trying to break through the worship of these heroes — and they are heroes, just not gods! — to make sure their beliefs about my clients are proven beyond a reasonable doubt.
I do this because it is necessary. I am necessary. The police are necessary. The prosecutors are necessary. We all are necessary; almost none of us are evil.
I worship law enforcement, but while I value law enforcement officers who do their jobs and do them nobly, I do not worship law enforcement officers. Law enforcement requires not just the investigation and arrest of people who commit crimes. Law enforcement requires the enforcement of our laws regarding how people are investigated, how they are arrested, how they are “brought to Justice.”
As I have thought about how to write this post for more than a week now, I have mourned the loss of these officers who were killed doing their jobs. I have thought about their families. I have pondered how to express my thoughts so as to ensure that people who do not like what I do would not doubt the sincerity of my expression of sympathy.
Ultimately, I came to realize that the problem with what I want to say, what I want to do with my words here, is the same as the problem I confront in doing my job every time I defend people accused of crimes: I worship law enforcement, which includes the enforcement of the laws that require someone like me to challenge law enforcement officers.
But that does not mean that I cannot also honor those officers.
I worship law enforcement.