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