Wayne's World: A Logic Free Zone

Wayne LaPierre is unmoved

The same old nonsense from the NRA. Today, the NRA gave a long awaited press conference. Wayne LaPierre read from notes and did not answer questions. He ignored hecklers. His point? Armed guards in every school will protect kids from crazy armed shooters. What Codswallop. What a completely bankrupt argument.

The New York Times put it this way:

The National Rifle Association on Friday called for schools to be protected by armed guards as the best way to shield children from gun violence.

The proposal from the pro-gun lobbying group, long the most vocal and influential organization generally opposing stricter regulation of firearms, came during the N.R.A.'s first organized media event after the deadly shootings in Newtown, Conn. The group also called for steps other than gun control, including cracking down on criminals and fighting violence in the media and on video games. ...

But it was the vehement insistence that the single best line of defense was to put armed guards in schools — and the absence of any openness to various suggestions for new gun control measures — that dominated the event at a downtown hotel not far from the White House.

Mr. LaPierre said this should be done right away, with the details left to the discretion of local schools. The N.R.A. would provide a template or model program after consulting with security experts.

Hahahaha.

To be kind, which is not exactly what I'm feeling at the moment, that dog just won't hunt, Wayne. And seriously. The video game as a source of violence? That's the old Twinkie defense. You know. Everything that happened was somebody else's fault/responsibility. I thought you were for responsible gun ownership. Apparently, you've just deleted the adjective. Fine. The multitude of victims of gun violence deserve better. If they won't get it from you, fine. They'll get it elsewhere.

And suggesting that arming cops would prevent killing is a complete insult. To policemen who have been killed in the line of duty. It's really simple. Armed police are being killed by armed people at an astonishing rate in America. The guns the police are carrying aren't keeping even them alive. So remind me again why having armed police, like they had at Columbine right at the school, or at Virginia Tech, which had the police nearby, is going to safeguard our children? And let's not even think about Fort Hood, where almost everybody was armed, and it did not good to prevent mass murder.

I should add a note of unwanted irony. While Wayne was talking, some guy in Pennsylvania was walking down the road shooting people, including state troopers. Nicely done, Wayne. Nicely done.

Rant: No, A Beer Won't Fix Anything

In advance, I ask your pardon for a rant I am unable or unwilling to suppress. Today's White House Beer Summit On Race Relations And Police Practices has enraged me. Police Sergeant Crowley of the Cambridge PD didn't deserve an invitation for beer at the White House, he needed an appointment for a deposition in a federal civil rights case in which he and his superiors were the named defendants. But according to the Trad Media^TM, all of Crowly's vengefulness, his making an illegal arrest, his making a stupid, unjustifiable illegal arrest, his serving up a racist/classist illegal arrest of a person in his own home is now behind us. We're past all of the ugliness of his conduct. It has now been chilled (unless you have to live with brutality and oppression on a daily basis) with some beer. And pretzels. This I hasten to point out might solve Police Sgt. Crowley's immediate problem, including departmental discipline and federal civil rights action for damages, but it doesn't solve my problem. Or the country's. And I don't think it solves Prof. Gates's problem. It certainly doesn't solve the US's police problem. Not one bit.

So instead of an extremely heated, long overdue, loud and tenacious national argument about police exceptionalism, an argument that's been overdue in this country for decades, we have a tepid discussion of the symbolism of the kinds of beer consumed at the White House. Personally, I think we'd be a lot better off with the actual argument. An actual confrontation with the pervasive evil evidenced Professor Gates's arrest.

A brief bit of context, if you will. The reason why evidence seized by cops in illegal searches is suppressed in this country, is that numerous judicial slaps on the wrist over decades didn't make policeman follow the Constitutional Fourth Amendment law of search and seizure. So the Supreme Court had to introduce the suppression rule. Basically, if the constable blunders (or intentionally ignores the constitution and laws of the US) the illegally seized evidence is suppressed and the accused goes free. Has this rule, now in effect of almost 50 years, deterred the police from making illegal searches and seizures? No it has not. They do so with amazing frequency. This law has resulted only in numerous court decisions watering down the rule, handwringing that the accused should hnot be freed. It has not made police toe the line. It has made them surly. It has made the rogue cops. And the police clamor to be able to break the law with impunity has, to no one's surprise, cowered the courts. The courts would rather expand the cops' rights to break the law than require them to follow it. It's a legitimate question whether anything can make the police toe the line.

And what about Miranda warnings? The reason why Miranda warnings were required was that cops were extorting confessions from people they had taken into custody and their tactical manuals, explaining how this should be done, appalled even the US Supreme Court. Again, numerous judicial slaps on the wrist over decades didn't stop police from using coercive interrogation methods to extract involuntary confessions, so the Court required Miranda warnings to be given before there could be a custodial interrogation. Has this stopped police from coercing confessions? No it has not. This rule too has spawned numerous court decisions watering down the rule and judicial handwringing. It has not stopped police from coercing involuntary confessions. Now some states require that all interrogations be videotaped so that police might stop producing unreliable and false confessions of crimes. Will that work? Or will police find a way to subvert that rule also? I'm skeptical. What are police thinking when they coerce false confessions. What they are thinking is that they are doing God's work and that those of us who are not "on the job" don't know about the battle that goes on on the streets between good (the cops) and evil (those they arrest and interrogate).

Are these circumstances that prompt us to have a beer? I think not.

You can read in today's press that a lawyer in DC was arrested last night for shouting that he hated the police. Police evidently heard him express his opinion. This lack of "respect," the word used in the article, which as far as I can tell was a Constitutional exercise of free speech, was a reason for calling him a homophobic slur and arresting him for the bogus charge of disorderly conduct. Has the affaire de Gates made any difference to the DC cops who arrested him for lack of respect? Evidently not. Has it made any difference to any cops? Doubtful.

Can we fix this by having a beer? I doubt it.

There have been more than 135 exonerations of people who were on death row since the resumption of the death penalty in the US. The next exoneration, the next one that will be announced, is on its way, so there is right now somebody sitting on death row in a prison who doesn't belong there because s/he is innocent, completely and utterly innocent of the crime for which s/he was convicted and sentenced to death. And how did this innocent person in all probability get convicted and sent to death row? Chances are good it involves shoddy or intentionally improper police work. Can we estimate how many innocent people of the more than 2 million presently incarcerated in the US are actually innocent? No, we cannot. But we do know that when exonerations occur they come from involuntary, false confessions, jail house snitch testimony, and faulty or suggestive identification procedures. In two words, they come from police practices. The police are using the system to put innocent people in prison and perhaps to death. And this happens with regularity. It's far too common.

Can we eliminate the long term incarceration and potential execution of innocent people by having a beer? Not a chance. Can we address this issue? No.

Some may want to talk about how Obama's drinking a Bud Light means something, and how drinking Red Stripe means something, and how drinking a bland Coors product means something. That shows wonderful gifts in discerning the claimed political symbolism of today's tete a tete. That enrages me. Why? Because I'd like the see 1/100th of the same attention and analytical skills applied to correcting the obvious and pervasive police abuse in this country. I'd like to see it applied to correcting the racial disparities and wealth disparities among prisoners. I'd like to see it applied to making the criminal justice system fair.

Obama was right. The Gates affair provided a teachable moment. Too bad that the Trad Media^TM couldn't figure out what needed to be taught. Too bad that the President cowered before the long, blue line, when he should have confronted the real issues. Too bad that I'm writing this rant and that the moment for beginning to deal honestly with the police is now again relegated to the background. It's a topic for discussion in jails and prisons. Some beer hasn't solved the problem, but it's relegated it to obscurity. Until the next illegal, unconstitutional arrest of a celebrity.

Sean Bell, RIP

A Memorial To Sean Bell

I'm shaking my head at the verdict Judge Cooperman (without a jury) rendered yesterday in the Sean Bell murder case. I'm saddened and troubled. I think I understand the roots of his acquittal verdict, and I think there has been an enormous miscarriage of justice in this case. Unfortunately, this kind of injustice probably should have been expected because of the way the law acknowledges and fosters police exceptionalism. The defense lawyers for the detectives knew it and sought to benefit from it, and the prosecutors knew it as well but didn't block it.

Please join me in Kew Gardens.

The miscarriage in this case is only partially about race and the relationship between young, African American men and the New York City Police. That relationship is volatile, dangerous, oppressive, frightening, and frequently out of control. But race wasn't the only thing awry in this case. The other part, the part that is not receiving attention at the moment, is that the police, despite all of our pious insistence to the contrary, are different from the rest of us in the eyes of the law. They are exceptions to the rule of law. They are special and receive special treatment. How else can so many shots be fired with such devastating affect, killing one person and wounding others, at unarmed people with no judicial consequence? How else can the detectives have been found to have committed no criminal wrong whatsoever?

There's nothing new in seeing that the police are different from the rest of us, giving them a leg up in court just for their being cops despite repeated judicial instructions to jurors not to. And, believe it or not, there is a large segment of the population that wants it to be that way, that wants the police to be above the law, that wants the police to be unfettered by any law, that romanticizes the rogue cop. And the rules are repeatedly interpreted to support this invidious discrimination in which police are special and those they encounter on the streets aren't just other citizens who by the way are presumed to be innocent. No. They're perps. Defendants. Criminals. Skulls. Mutts.

Want to see that clearly? Let's return, briefly to the 1970 decision of Judge Irving Younger in People v. McMurty, one of the few judicial decisions that unintentionally illustrates police exceptionalism. Some excerpts from the famous decision:

For several years now, lawyers concerned with the administration of criminal justice have been troubled by the problem of ‘dropsy’ testimony. This case shows why.

The facts are simple. On July 23, 1970, Patrolman Charles Frisina arrested defendant James McMurty on a charge of possession of marijuana. McMurty moved to suppress the marijuana for use as evidence, and, in due course, a hearing was held. Frisina took the stand. In condensed but substantially verbatim form, he testified as follows:

‘At 8:30 p.m. on July 23, 1970, I was on duty driving a patrol car. While stopped for a light at West 3rd Street and Broadway, I observed two men in a doorway of the building at 677 Broadway. One of these men-James McMurty, as I later learned-saw the patrol car and stepped out of the doorway. From his right hand he let drop a small plastic container. I got out of the patrol car and retrieved it. In my opinion, based upon a fair amount of experience, its contents were marijuana. I approached McMurty, who had begun to walk away, and asked him if the container was his. He said no. I said that I had seen him drop it and placed him under arrest.’

McMurty testified that nothing of the sort happened. He'd never drop marijuana. The cops reached into his pocket, illegally seizing it. Judge Younger then wrote:

Were this the first time a policeman had testified that a defendant dropped a packet of drugs to the ground, the matter would be unremarkable. The extraordinary thing is that each year in our criminal courts policemen give such testimony in hundreds, perhaps thousands, of cases-and that, in a nutshell, is the problem of ‘dropsy’ testimony. It disturbs me now, and it disturbed me when I was at the Bar. Younger, ‘The Perjury Routine,’ The Nation, May 8, 1967, p. 596:

‘* * * Policemen see themselves as fighting a two-front war-against criminals in the street and against ‘liberal’ rules of law in court. All's fair in this war, including the use of perjury to subvert ‘liberal’ rules of law that might free those who ‘ought’ to be jailed * * * It is a peculiarity of our legal system that the police have unique opportunities (and unique temptations) to give false testimony. When the Supreme Court lays down a rule to govern the conduct of the police, the rule does not enforce itself. Some further proceeding * * * is almost always necessary to determine what actually happened. In Mapp v. Ohio, 367 U.S. 643, for example, the Supreme Court laid down the rule that evidence obtained by the police through an unreasonable search and seizure may not be used in a state criminal prosecution. But before applying the rule to any particular case, a hearing must be held to establish the facts. Then the judge decides whether those facts constitute an unreasonable search and seizure. * * * The difficulty arises when one stands back from the particular case and looks at a series of cases. It then becomes apparent that policemen are committing perjury at least in some of them, and perhaps in nearly all of them. Narcotics prosecutions in New York City can be so viewed. Before Mapp, the policeman typically testified that he stopped the defendant for little or no reason, searched him, and found narcotics on his person. This had the ring of truth. It was an illegal search (not based upon ‘probable cause’), but the evidence was admissible because Mapp had not yet been decided. Since it made no difference, the policeman testified truthfully. After the decision in Mapp, it made a great deal of difference. For the first few months, New York policemen continued to tell the truth about the circumstances of their searches, with the result that evidence was suppressed. Then the police made the great discovery that if the defendant drops the narcotics on the ground, after which the policeman arrests him, the search is reasonable and the evidence is admissible. Spend a few hours in the New York City Criminal Court nowadays, and you will hear case after case in which a policeman testifies that the defendant dropped the narcotics on the ground, whereupon the policeman arrested him. Usually the very language of the testimony is identical from the case to another. This is now known among defense lawyers and prosecutors as ‘dropsy’ testimony. The judge has no reason to disbelieve it in any particular case, and of course the judge must decide each case on its own evidence, without regard to the testimony in other cases. Surely, though, not in Every case was the defendant unlucky enough to drop his narcotics at the feet of a policeman. It follows that at least in some of these cases the police are lying.'

Judge Younger then noted statistical proof of the huge increase in dropsy cases since the decision in Mapp. And he then said that he thought, in light of this, that dropsy cases should be scrutinized with special caution. And that if the cop's testimony seemed "inherently unreal" it should be rejected. And the "slightest independent contradiction" of the cop's testimony would warrant rejection of police testimony and the suppression of the evidence. And that he would determine if the burden of proof had been met by the prosecution for use of the evidence. This all makes sense.

And then, in a gigantic example of how police testimony is different and receives special acceptance and makes the police different from you and me and citizens in general, in a decision that enshrines police exceptionalism, Judge Younger wrote:

Had the issue been open, I would hold that the People must prove beyond a reasonable doubt that the seizure was lawful. But the issue is closed. The Court of Appeals declares the burden of proof to be the defendant's. People v. Baldwin, 25 N.Y.2d 66, 70 (1969). Where the testimony on one side balances the testimony on the other, as here, it is the People who prevail. Defendant's motion to suppress is therefore denied.

I come to this decision reluctantly. Our refusal to face up to the ‘dropsy’ problem soils the rectitude of the administration of justice. One is tempted to deal with it now by suppressing ‘dropsy’ evidence out of hand; yet I cannot. Reason and settled rules of law lead the other way, and judges serve the integrity of the means, not the attractiveness of the end.

Somehow, policemen must be made to understand that their duty is no different.

And so, McMurty was convicted. And policemen received a written, judicial acknowledgment that they were different from me and you and anyone else who testifies in court. They could lie and win anyway. Why? Because the judge, who by the way was an excellent judge and a committed liberal, would not, could not find that officer Frisna's testimony was simply not credible. He had previousy written in the Nation that nearly all of the cops testifying to dropsy evidence were committing perjury, but he wouldn't find this particular cop, Officer Frisna, incredible. Ask yourself why this was so. Ask yourself what it would take to say, "No. I believe the accused, I don't believe the officer." How often has that happened? Answer: virtually never.

The McMurty decision is a clear, 38 year-old example of police exceptionalism. Since then, police exceptionalism has continued unabated. It has killed Amadou Diallo and it has killed Sean Bell. And it will kill again. Judges will continue uncritically to accept police testimony, and the miscarriages of justice will continue to mount unabated. Judge Younger wrote that "judges serve the integrity of the means, not the attractiveness of the end." How many more miscarriages will it take before the "integrity of the means" actually leads to justice? How many more dead people does it take?