I LOST, AND IT BOTHERS ME

As most who visit here know, I play many roles, one of them being the role of an attorney.  During my legal career I’ve won many cases, lost some, and that is to be expected. You learn more from your mistakes than you do from your victories.  But I’ve never lost a jury trial - until now.l

Long, long ago, somewhere in the African veldt, a proto-human was born that wasn’t particularly strong or fast or even very attractive, so his survival potential in the State of Nature was, well, poor at best.  But this particular proto-human was a mutant born with a pre-stone age super power. He had the ability to persuade other, stronger, faster proto-humans to share food and otherwise not kill him and/or eat him.  He became an advisor to the alpha male, alpha female, and those proto-humans aspiring to attain that status.

This power of persuasion compensated for lack of speed and strength, allowing that particular genetic line to survive through the ages, spreading throughout humanity, but concentrating with particular potency in what is now known as Ireland.

I am part of that line.  I’m not particularly fast, strong or good looking.  I’m not particularly intelligent.  But I can charm the leaves off the trees and sell ice cubes to eskimos.  I kissed the Blarney Stone when I was 18, and as I did it – leaning backwards, pressing my lips to the mossy stone – I asked myself “what’s the point?”

I’ve always been able to talk my way out of trouble or into a paying job.  (My deepest wish and hope is that I’ve passed my gift on to my only son, because we enter troubling times when a silver tongue will be more valuable than cash money.)

And my “gift of gab” has served me well, especially in my chosen profession. But it failed me two days ago, when I failed to convince a jury to acquit my clients on charges that they “delayed a peace officer in the performance of his or her duty.”

Here are the facts:

My clients are brothers raised in a small town in Northern California. They were raised with all the right values. I would be proud to call either of them my son.  To respond to the injustices they see around them, they became political activists, appearing in public holding signs to bring attention to their message. When they do this, they wear masks, made popular by the film V is for Vendetta.

These masks have become an international symbol of protest against government tyranny.

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One day the brothers decided to display a sign that said “TAXES = THEFT” from a highway overpass.

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This is a common theme of political protest throughout the United States; many people are upset with tax policy that essentially takes their money by force and spends it on things they deeply disapprove of, whether it be war or birth control subsidies.

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A Yuba County Deputy Sheriff responded to a call from a concerned citizen.  The officer saw that they were wearing masks made popular by the film V is for Vendetta, The officer saw that one of the two masked figures was holding some kind of hand bag and worried that it contained a bomb.  He stopped to investigate.

The whole thing was filmed and was streamed live on Youtube.hYou can see the entire encounter here,dculminating with the arrest of both brothers.  Watch it and come to your own conclusions why these guys got arrested.

Officially, the brothers were arrested for wearing masks – which isn’t a crime unless the person wearing a mask is in the process of committing a crime, leaving from the scene of a crime or planning a crime – which the Deputy Sheriff surely eliminated as possibilities the moment he began talking to the brothers.

The authorities realized their mistake and did not charge the brothers with wearing masks. Instead, they charged the brothers with illegally posting a sign.

Much later, the complaint was amended to include a charge of “willfully resisting, delaying or obstructing a peace officer while he or she was attempting to discharge the official duties of his or her office.”

Much, much later, the complaint was amended again to withdraw the charge of illegally posting a sign.  At trial, the Deputy District Attorney argued only that the brothers’ actions “delayed” the Deputy Sheriff from discharging his official duties.

At trial – almost a year later – the Deputy District Attorney put the Deputy Sheriff on the stand to explain why he confronted the brothers and why he was concerned (masks and hand bag = potential terrorists).  I cross examined him. He told me that his official duty is to determine whether a crime has been or was going to be committed. I asked him if he searched the hand bag one of the brothers had over his shoulder. The officer said no because he wasn’t concerned any longer that it might contain a bomb.

From my point of view, this was fine, because, at that moment, the purpose for the stop – i.e., to determine if my clients were terrorists intending to explode a bomb – was satisfied, and therefore, there was no further “duty” to perform and, therefore, my clients subsequent reluctance to produce their drivers license was not an interference in any duty being performed.

I asked the officer when he detained my clients and the officer testified that my clients’ detention began the moment he asked one of them if they carried a drivers license. That was fine with me, too, because an officer cannot detain someone unless they suspect that person is committing or will commit a crime, and the officer satisfied that concern so could not legally detain or question my clients.

I asked him if he knew which of the two masked figures answered and he said no.  This was absolutely fine with me because, if either of my clients had broken the law by refusing to identify themselves, the jury could not determine which of them broke the law, and this meant ipso facto reasonable doubt.

The  jury deliberated about two hours – including lunch – and came back with a verdict. They found both of my clients guilt of delaying a peace officer.  My clients will be sentenced soon, and could face up to a year in jail.

Let me make it very clear where I believe the problem resides. Not with the judge. The judge was, in all honesty, one of the best judges I’ve ever appeared before.  His intelligence was intimidating. His integrity was impeccable. He bent over backwards to make sure that my clients got a fair trial.  I will gladly appear before that judge again and know that my client will get a fair shake, and that is all any attorney can ask or hope for.

The problem does not reside with the Deputy District Attorney.  He did his job and did it well.  More importantly, he did it absolutely above board.  There is often a great deal of trickery in these matters where one side or the other relies on tricks of procedure and wins by exploiting the mistakes of their opponents.  Not this guy.  Once he even saved me from a potentially important mistake because he “didn’t want to win through trickery or accident.” How often do you encounter someone like that?  In my trade, not often.  I believe he genuinely liked my clients, sympathized with their cause and wanted them to suffer as little consequence as possible for what he believed was a violation of the law.  As a defense attorney, I could not have wished for more in an opponent.

The problem doesn’t reside with me.  I am my harshest critic. Although there are a few things I would have done differently in retrospect,  I believe I put on the very best defense possible under the unique circumstances of this particular case. I would rather have caused this, but I didn’t. The truth is much worse.

In my mind, the problem rests squarely with the jury. Not the individual jurors.  I believe each and every one of them is a decent, honest, solid citizen. I had the choice of excusing any of them from the jury and did not. I saw no reason to.  Some of them had a actually seen the movie V is for Vendetta and enthusiastically liked it.

But I should have won.  I didn’t because every single person on that jury believed that, when a police officer asks for your identification, you should provide it. Period.

The law in California says otherwise.  In California, you are required to answer a peace officer’s questions only if you are legally detained. You can be legally detained only if the peace officer believes you are either in the process of committing a crime, are leaving from the scene of a crime or are planning a crime.  If a peace officer does not reasonably believe any of these factors are present, then you aren’t detained and you aren’t required to answer questions.

For example, let’s say you are walking down the street, minding your own business, and your business is entirely lawful.  If a police officer stops you and asks for you to show him or her your driver’s license, you can lawfully refuse.

I adamantly believe I provided sufficient evidence and argument to cement reasonable doubt in the mind of any objective juror.  I demonstrated how the Deputy DA didn’t meet his burden of proof. I showed that the arresting officer resolved his concerns as to whether my clients were planning to explode a bomb within moments of confronting my clients – they were just two guys protesting tax policy.  I pointed out that the two videos  the jury saw showed two people wearing masks, one of which said he didn’t carry a drivers license and didn’t want to tell the officer his name.  I argued that this created reasonable doubt because the jury could not determine from the evidence they saw which brother violated the law, if either of them did.

I polled some of the jurors after the trial.  They all said the same thing to me:  if a police officer asks you to show him or her your identification card, you should do it. Period. Sure, you may have the right to say no, but you shouldn’t. If they ask, for whatever reason, you should tell.

And that sort of bothers me.  I don’t want to believe that I live in a society where someone in uniform can say “your papers, please” and I have to comply or else risk arrest and incarceration.  But I do live in that kind of society.  That jury of good, honest, ordinary people showed me and everyone that we do.

And that bothers me.

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34 Responses to “I LOST, AND IT BOTHERS ME”

  1. “Ve hev veys of makeeng you talk.”

  2. Anonymous Says:

    Bad craziness.

  3. “But I should have won. I didn’t because every single person on that jury believed that, when a police officer asks for your identification, you should provide it. Period”

    An I assume from your subsequent remark about ‘ure, you may have the right to say no, but you shouldn’t’ that isn’t their call to make as jurors.

    I agree with you, it bothers me that they lost. It reminds me of the scene in ‘a man for all seasons’ when Cromwell is ‘examining’ Sir Thomas More and exclaims he has reasons for not signing and Sir More corrects him and says you can not infer I have reasons. I may be simply being perverse and have no reason other than to be difficult.

    It would seem that tolerance to those who wish to say ‘no’ is fast disappearing in the US.

  4. If the police say jump you jump. Thats America. Thats the price of security. If young punks are allowed to give police any lip we will have anarchy. So shut up and do what your told. Who cares what your rights are. What matters is being safe and the only thing keeping us safe is the police. If they harass some protesters or beat up some punks so what. Its a small price to pay for their protection.

  5. I met comrade who lived next to Joey Goebbels in WW II. His parents owned estate next to Goebbels family. He was Danish. Would set up easel in street to disrupt Nazi parades. He was Sven Blaa. Blue, like Picasso blue period. He said, “One day I was in resturant, lighting matches and flicking them into ashtray.” Because he was beatnic, doing absurd behaviour. Some Nazi soldiers said, “You are spoiling the Fuhrer’s gift.” ie, wasting resources. “I lit another match and flicked it, then the Nazis flung me out the door>” He said, this was how it was. Everyone was going crazy. Like in Amerika now. Only psychopats can justify “Humanitarian Bombing”, or police state. Lots of money generated by war on terror. What terror? At least neocon sociopats don’t have to worry about keeping the troops in benefits after they come back from Iraq. Being around all that Uranium munition will guqarantee they croak in a couple of years. Who wants mad killers around anyway? They might come to their senses and start killing the assholes who sent them to Pipelineistan in the first place. Polise state is evidence of country in fast decline anyway. Asian countries are switching to their own courency so as to ditch dollar as reserve currency. The slippery slope is upon us. Get some cans of beans into the crawl space bunky, They will be 100 bucks a can soon.

  6. The perversity of the jury system.

  7. Comrade Sven Blaa said, “My brother joined the SS Wiking Division. After the war, he hame to family home bearing gifts. The family would not let him in the door, but accepted the gifts.”

  8. Anonymous Says:

    You hit the nail on the head! The jury was unable to realize we actually have, or had, rights in this country. Any idea on how this will affect state law.

  9. paulboylan Says:

    I think this will result in a revision of the California Penal Code where it is specified that, if a police officer detains you to determine if you’ve violated a law that doesn’t exist, and you refuse to provide ID, that you cannot be prosecuted for “delaying” the officer’s investigation of a law he or she more or less made up.

    That’s what i think is going to happen.

  10. I personally know this family and the incident in question was dead on when the jury said to comply. If we comply to everything then we are no better off then to live in a communist society in fear of our government. We left that type of tyranny and must fight to protect it.

  11. Sadly, I think this is a direct result of state run education. This may sound radical or just insane to the average person, but when you break down the history and methodology of our education system it becomes clear that it’s primary purpose is instilling social obedience. The problem at hand isn’t one of laws, because bad laws can be nullified by moral, informed juries. It’s not a problem of politics either as this transcends petty political divisions. Too many in this country have lost a tradition of having a healthy amount of suspicion for those with authority. You have right to be concerned because if this problem is left unchecked creates the perfect breeding ground for totalitarianism. It would seem that the kind of activism the bothers were in engaged in is exactly the kind of wake up call Yuba County, and perhaps all of America, is in dire need of.

  12. Yes, this sounds truly perverse to me. Is the jury system in the US substantially different to the system in Australia? From my expectation of the jury system here, juries have no capacity to rule on points of law as to whether something alleged to be done was a violation of the law or not – that’s the domain of the judge who is, presumably, an expert in the law.
    What the jury is there to decide is whether, based on the evidence presented, the person did or did not commit the act which constitutes a violation of the law.

    On the social justice side of it, that always shits me when you see these sort of things, where the prevailing attitude from police is “You fucking well do what I tell you to do”, rather than an actual questioning and discussion which in this case seems justified. Surely 5 cop cars for 2 people simply displaying a banner is going to be at least somewhat intimidating and threatening. US cops really seem to take it as a personal affront – “How dare ypou question ma authoritah?”

    Truly a frightening situation when people cease questioning authority and governance.

  13. [...] http://paulboylan.wordpress.com/2012/04/07/i-lost-and-it-bothers-me/ As most who visit here know, I play many roles, one of them being the role of an attorney.  During [...]

  14. paulboylan Says:

    Yuri – Welcome back, Tovaritch. Your points, as usual, even though a bit oblique, are nevertheless dead on.

    Anon 1 – Bad craziness, indeed.

    Barnes and Timmo – You now clearly see one of the major differences between the American legal system and the Australian legal system. Technically speaking we have the same system, with the jury determining questions of fact and the judge determining questions of law. But in practice, here, that is often a distinction without a difference. Fact and law intermingle and juries are given deference in virtually any decision except the in cases of the most obvious abuses such as bias or considering ex parte evidence. Forgive me, folks, and please don’t call me a hater of America, but this is another example of something I admire about the Australian system that I wish I didn’t have to admire.

    Hank – You describe a police state. I now realize we live in one, but pretend we don’t. Like my clients, I shall adapt to that reality.

    Bangar – A dinkum observation, mate.

    Patrick – I now live in a state of fear that I did not experience prior to this trial. One of my illusions was in the ultimate infallibility of a jury. I believed that, in the end, juries do the right thing. That didn’t happen here. And I now realize that, when it does happen, that may be the exception and not the rule.

    Agora – I agree, but for different reasons. I believe that public education has become so mediocre that it does not and cannot teach complex , critical thinking, a skill that is necessary for deciding the kinds of issues present in the Bartholomew Brothers’ trial.

  15. I have always been proud to live in this free country…but is it?

  16. paulboylan Says:

    Let’s just say that we are not as free as most of us think we are, and it is dangerous to put our freedom to the test.

  17. James Clark Says:

    @ paulboylan

    That’s the first commandment of the state, don’t ya know. ‘Thou shalt not put thine liberties to the test.’

  18. paulboylan Says:

    Never forget that Iran and Syria claim to be democracies.

  19. Libertina Says:

    Never forget we don’t claim to be a democracy. Paul, you live in America with all kinds of “liberties”. Does that make America one of the most dangerous countries in the world?

  20. paulboylan Says:

    Libertina – Any nation is dangerous that bases its legitimacy on fantasy and myth but grounds its power in a reality that contradicts its legitimizing fantasy. As the United States looses its moral authority, which also threatens its ability to lead and persuade, it will have no choice but to rely more and more on brute strength and repression both at home and abroad. That certainly makes us dangerous. But I cannot say whether that makes us one of the most dangerous. I think that China – which is replacing communism with capitalism as a means of power and control – is a greater risk because China isn’t restrained as the US is by the fantasy of freedom and the myths of fairness and justice.

  21. Libertina Says:

    America: Freedom, Fairness and Justice thanks to fantasy and myths. I’ll think about that. It’s striking a chord that’s for sure.

  22. paulboylan Says:

    My clients realized with sudden impact and clarity that they are different from those in their community, who do not understand, much less share, my clients’ views. Unlike my clients, I’ve known that about myself for a very long time. Thank you for appearing to be someone who seems to understand.

    And if so, allow me to offer to add another chord to the dirge: Think about the one phrase that started this Grand Dream: “We hold these truths to be self-evident, that all men are created equal…” This is a beautiful lie. It is NOT self-evident that men are created equal. What IS painfully self-evident is that men and women are created quite unequal, with some being far more equal than others.

    Jefferson knew this, but he penned the lie anyway. It is the most powerful example of magical thinking the world has ever seen. Just by saying it, he altered history: he made it true and engendered at least seven generations of men and women who believed it so much that they passed laws, promulgated policies and devoted enormous social, political and economic resources to make it true.

    But it was – and is – a lie nevertheless, and one that we, as a nation, as a people, are no longer willing to pay the social, political and economic costs necessary to continue to make it real. And this is true of all of the rights identified as “self-evident and inalienable” by that magnificent liar and all those magnificent liars who founded this once great nation. The fantasy and myth may say one thing, but the harsh light of reality shows something that is, more often than not, diametrically different – as my young clients recently learned.

  23. nhagorist Says:

    “We have met the enemy and he is us.”

    “None are more hopelessly enslaved than those who falsely believe they are free.”

    These are sad times.

  24. paulboylan Says:

    Yes. Very sad. There is an enormous class of slaves out there who think they are free and vote to preserve the power to enslave them and their children.

    Who would have believed we would live to see it actually happening right before our eyes?

  25. Comrades, Super spy uncle Nahl wrote in diary, “We were astonished to see these Germans burning books. Books which after the passage of time have come to be known as the truth….The Germans, probably the most advanced country in the world, not only in science and weaponry, but in the arts and philosophy. It was as if some black magic spell had descended on the land. Probably because there were lots of people making a lot of money by going along with the propaganda.”
    Comrades, in state of Arizona, schoolbooks are metaphorically being burned, as stories of discrimination against brown comrades is being removed.
    Luckily seekers of truth still have Internet.

  26. [...] by a jury of something that wasn’t against the law. As an update, here’s their lawyer’s reaction: I don’t want to believe that I live in a society where someone in uniform can say “your [...]

  27. [...] Boylan explains in his blog how, despite doing everything right, he lost his first jury trial because of a jury's acceptance of [...]

  28. Judging from your opinions of both judge & DA,I have a feeling that they won’t be doing hard time, and may just get probation. But I see your point, and it bothers me as well.

  29. “None are more hopelessly enslaved than those who falsely believe they are free.” –Johann Wolfgang von Goethe

  30. paulboylan Says:

    A Goethe quote. A man after my own heart.

  31. Paul, Jefferson penned that line because it is true. He recognized the truth of self ownership, and from natural self ownership stems natural law. Human beings come in different shapes, sizes, personalities, thought patterns, etc. but when it comes to self-ownership we are all equal, and the only political ethic consistent with equality is through the application of natural law. No man can own another man though one might enslave, which is not ownership but a demand of abject obedience, another through perversion of law and power.

  32. paulboylan Says:

    Ken, I more than understand your argument and sentiment. I am very well acquainted with natural law and social contract theory. But it is your belief, your faith, that makes it true. It is a subjective truth, not an objective truth, and invention of men, who can believe it, not believe it, follow it or alter it at their whim.

    And slavery is a very good example. Sure, theoretically, no man can own another because it violates natural law. But tell that to someone who was purchased and forced to work. They may not be a slave in theory, but they and their children are slaves in fact.

    It reminds me of a poem I read a very long time ago, a modern take on Dante’s Inferno, where two characters were talking at the Inferno Bar and Grill located in the Citadel of Human Reason, with the narrator being a long time resident and his guest a new arrival arguing theory and theology in the face of the reality all around him. The older soul laughs and says “you remind me of one of the physicists I met in the Seventh Circle arguing that, according to the laws of thermodynamics, Hell can’t burn forever. Ask those souls burning if they take any comfort in that fact.”

    Same thing here. My clients believed something that theoretically is true, but when put to the test, turned out to be a pretty lie. They take no comfort now that they have the right to refuse to “give their papers” to a police officer upon that officer’s request. Despite being assured of that right, they intend on carrying ID with them from now on at all times, and they are worried they will be sentenced to spend up to a year in jail.

  33. I’d be slower to heap praise on the judge in this case. When the jury declares guilt contrary to the obvious facts, it’s the judge’s duty to set aside the verdict and release the defendant. It’s not as if this is the first stupid jury in American history.

  34. Who was the judge?

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