“GOP senators who are attacking President Joe Biden’s Supreme Court pick seem weirdly unaware of how our justice system works. By focusing in part on Ketanji Brown Jackson’s former role as a criminal defense attorney, they act as if it’s wrong to provide a defense to people accused of a crime—and that if the government levels a charge, it must be right.
Hey, if you haven’t done anything wrong, you have nothing to fear—or something like that. “Like any attorney who has been in any kind of practice, they are going to have to answer for the clients they represented and the arguments they made,” Sen. Josh Hawley (R–Mo.) said in reference to Jackson and other Biden nominees. Apparently, defense attorneys should only defend choirboys.
Yet I guarantee if Hawley—known for his fist pump in support of Jan. 6 protestors at the U.S. Capitol—became the target of an overzealous prosecutor who accused him of inciting an insurrection, he’d be happy to have a competent defense attorney to advocate on his behalf. That attorney shouldn’t be forever stained for defending someone as loathsome as Hawley.”
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“Jackson will be the nation’s first Supreme Court justice to have served as a public defender, with Thurgood Marshall being the last justice to have criminal defense experience.”
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“A study last year by the libertarian Cato Institute found the Trump administration’s judicial appointments tilted in favor of prosecutors over those who represented individuals by a 10-to-one margin. Only 14 percent of the liberal Obama administration’s appointees defended individuals. Most judges strive to be fair, but their backgrounds color their worldview.”
“The government insists that its citizens have a Second Amendment right to defend their homes, but it also insists that armed agents of the state may break down one’s door in the middle of the night with little to no warning. So if a groggy, scared citizen, jolted out of bed by the sound of men shouting and the front door coming off its hinges, exercises that right against what he or she could reasonably assume to be violent intruders, the homeowner can be held criminally liable—and that includes capital punishment. In 2006, former Reason writer Radley Balko detailed the case of Cory Maye, a Mississippi man sentenced to death for fatally shooting a police officer during a no-knock drug raid. As Reason has argued continually over the years, these sorts of raids, especially when used for narcotics search warrants and non-violent offenses, put both officers and civilians at needless risk, occasionally with tragic results.”
“When law-enforcement officials believe that someone has committed a crime, they often go to great lengths—and can be quite creative—in coming up with charges to file. Criminal codes are voluminous, and it’s common for prosecutors to pile up one charge after another as a way to keep someone potentially dangerous off the streets.
When the accused is a police officer, however, agencies typically find their hands tied. “Nothing to see here,” they say, “so let’s move along.” Their eagerness to protect their own colleagues from accountability can have deadly consequences. A recent lawsuit by the victim of a California Highway Patrol officer’s off-duty shooting brings the problem into view.
The case centers on Brad Wheat, a CHP lieutenant who operated out of the agency’s office in Amador County. On Aug. 3, 2018, Wheat took his CHP-issued service weapon and hollow-point ammunition to confront Philip “Trae” Debeaubien, the boyfriend of Wheat’s estranged wife, Mary. As he later confessed to a fellow officer, Wheat planned more than a verbal confrontation.
“I just learned this evening that Brad confided in an officer…tonight that he drove to a location where he thought his wife and her lover were last night to murder the lover and then commit suicide,” an officer explained in an email, as The Sacramento Bee reported. Fortunately, Debeaubien had left the house by the time that Wheat arrived.
Initially, Wheat’s colleagues convinced him to surrender his CHP firearm and other weapons and they reported it to superiors. Instead of treating this matter with the seriousness it deserved, or showing concern for the dangers that Debeaubien and Mary Wheat faced, CHP officials acted as if it were a case of an officer who had a rough day.
They essentially did nothing. “Faced with a confessed homicidal employee, the CHP conducted no criminal investigation of its own, notified no allied law enforcement agency or prosecutor’s office, and initiated no administrative process,” according to a pleading filed by Debeaubien in federal district court. “Nor did the CHP notify [the] plaintiff that he was the target of a murder-suicide plan that failed only because of a timely escape.””
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“Two weeks later, Wheat took the same weapon and ammo and this time found his ex-wife and her boyfriend. He shot Debeaubien in the shoulder, the two struggled and Wheat—a trained CHP officer, after all—retrieved his dislodged weapon, shot to death his ex-wife, and then killed himself.
Now CHP says it has no responsibility for this tragic event and that its decisions did not endanger the plaintiff’s life. This much seems clear from court filings and depositions: CHP’s response centered on what it thought best for its own officer. Any concern about the dangers faced by those outside the agency seemed incidental, at best.”
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“CHP officials expressed concern about protecting Wheat’s career, and one worried that Mary Wheat or Debeaubien might file a complaint. Even when a colleague asked Wheat to relinquish his firearm, he did so as a friend—not as CHP protocol. Again, CHP treated Brad Wheat as the focus of sympathy, not as the potential perpetrator of domestic violence.”
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“”Giving a gun to a then-weaponless man who ‘had driven to a location where he thought his wife and her lover were to murder the lover and then commit suicide,’…creates an actual and particularized danger of his using the gun to attempt murder a second time,” the filing notes. That would seem obvious to anyone, except perhaps a police agency more interested in protecting itself than the public.”
“Democratic lawmakers in Colorado are advancing a bill that would ban police from lying to minors during interrogations, a practice that innocence groups say contributes to false confessions.”
“An organized group of Southern California bandits has brazenly hijacked armored cars and grabbed hundreds of thousands of dollars in cash. The heavily armed thieves reportedly have damaged trucks, hassled their victims, covered up video cameras—and even celebrated their haul. “Wowee!” and “way to go, buddy,” they allegedly cheered, after pulling a recent heist.
You’d be forgiven for assuming that this is the latest example of California’s ongoing crime wave, epitomized by “third world” scenes of pilfered freight trains and brazen smash-and-grab robberies. But it’s nothing of the sort. Actually, it’s more pernicious than the usual crime spree because a sheriff is the mastermind and his deputies are looting the armored cars.
For instance, San Bernardino County deputies stopped the same Empyreal Logistics armored-car driver twice and took a total of nearly $1.1 million in cash owned by legal marijuana dispensaries, per news reports. The government has not charged the armored-car company nor the cannabis firms with any crimes, but the sheriff keeps the cash, anyway. Critics are right to call it highway robbery.
Welcome to the dystopian world of civil-asset forfeiture, a drug-war relic that allows police—often at the behest of district attorneys—to take people’s cash, cars, and properties based on their suspicion that the property was involved in a crime. Officials never have to prove that the property’s owner was involved in a crime.
The agencies have every incentive to employ this strategy routinely given that they keep the proceeds and spend the money on vehicles, guns, and whatever. News reports found police so adept at abusing this process that they sometimes target people who own the kind of fancy SUVs and sports cars that they’d like to have available in their motor pool.
Not only does this process deprive Americans of their Fourth Amendment right to be safe against the government’s searches and seizures, but it undermines the credibility of law enforcement by turning cops into our adversaries. San Bernardino County Sheriff Shannon Dicus claims that “80 percent of marijuana at dispensaries was grown illegally.” If that’s true, then the sheriff simply needs to, you know, go to court and prove it.”
“Whenever I write about police abuse and use-of-force issues, I often hear from the “back the badge” crowd to defend whatever it is the police officer did in a given situation. They’re not always wrong, of course, but one recurring theme always sticks in my craw, especially given that these writers typically describe themselves as “conservatives.”
Police defenders instinctively view most situations—and expect the rest of us to do so—from the perspective of the officer. “Well, sure that African American teen was holding a cellphone rather than a gun, but how was the officer to know before he shot him?” “Sure, the SWAT team broke down the door to the wrong apartment, but mistakes happen (note the passive voice).”
One of the stated principles of conservatism is fealty to the constitution, which protects the rights of individuals against the abuses of government. Police are the face of that government. They enforce the rules that lawmakers pass. Having the right to detain or even kill you, officers literally hold all of your “rights” within their grasp.
Therefore, I spend less time worrying about the genuinely difficult challenges of officers than about my fellow citizens’ right to life and liberty. As Charlton Heston says in a Touch of Evil, “Only in a police state is the job of a policeman easy.” Likewise, I worry less about the frustrations of IRS agents than I do about the rights of taxpayers. Tax collectors have a legitimate job, but a true freedom-lover is primarily concerned about protecting individuals from the state.
Let’s look at a recent example. On Dec. 23, Los Angeles police shot to death Valentina Orellana-Peralta. who was shopping for quinceañera dresses in a Burlington store dressing room in North Hollywood. Officers were responding to reports of an assault with a deadly weapon and opened fire. A bullet penetrated the dressing-room wall, where Valentina and her mom were hiding from the ruckus. The girl died in her mother’s arms.
Those who scream (rightly) about government encroachment on our liberties when, say, legislators pass a new gun-control measure, tax hike or business regulation need to acknowledge that the government’s killing of a young girl who is out enjoying her day is a rights-destroying offense of a much higher order. It doesn’t matter that the girl was not the intended target.
The Los Angeles Police Department released a bland statement saying that officers didn’t know the girl was in the dressing room. The union argued the officer followed active-shooter protocols after getting 911 calls. It appears there was no active shooter. Police killed the suspect, who was a danger, but the weapon was a bike lock and cable.”
“despite tightening the rules for when police can keep seized property, Florida remains one of the most prolific practitioners of civil forfeiture. The Sunshine State took in more revenue through forfeitures than any other state in 2018, according to a survey by the Institute for Justice, a libertarian-leaning public interest law firm. Local and state police can evade the new restrictions by working with the federal government, just like the Miami-Dade police did in Salgado’s case. In return for calling in the feds, they get a cut of the proceeds.
“The federal government is literally paying state and local police to circumvent state law,” says Justin Pearson, managing attorney for the Institute for Justice’s Florida office. “That’s not the way things are supposed to work.””
“I sued the city for racial discrimination and police misconduct, winning a modest settlement. But I had been slurred a “sand n—-r” and wrongfully detained on an erroneous warrant in a city I once considered home. The effect on me was not readily apparent, but, in time, I would discover that a nameless fear had imperceptibly unhinged me.”
“The felony murder rule “divorces intent from consequence,” says Lara Bazelon, a professor of law at the University of San Francisco. “The concept is that, well, if you went along for the underlying felony, if you went along for the less serious act…then you’re just as guilty as [the murderer], even if you didn’t know that your co-defendant was armed, and even if you had no intent to kill yourself.”
That scenario is not a hypothetical. In May 2020, not long before Arbery’s convicted murderers were indicted, Jenna Holm was arrested on a manslaughter charge in Idaho, accused of killing a police officer after he arrived to respond to her apparent mental health crisis. But it wasn’t Holm who killed Bonneville County Sheriff’s Deputy Wyatt Maser—something the state conceded. It was another cop, who struck Maser in his vehicle when he drove onto the scene.
While an internal investigation revealed the officers disregarded safety procedures that night, the police eschewed introspection and set their sights on Holm, charging her with an “unlawful act” and tacking a manslaughter charge on top. (A judge recently struck it down, but only after Holm sat in jail for 16 months pre-trial.)
There are many more such stories. In December 2018, 16-year-old Masonique Saunders was charged with the felony murder of her boyfriend, who a police officer shot during the commission of a robbery. Because she allegedly helped plan that burglary, Ohio said the teen effectively killed her own partner. But perhaps the most iconic anecdote associated with the felony murder rule is the unfortunate story of Ryan Holle, who was sentenced to life in prison after he lent his car to some friends. Those friends then used it to commit a crime—also a burglary—which went horribly awry after one of the men found a firearm in the house they were robbing and used it to kill 18-year-old Jessica Snyder.
Holle was a mile and a half away from that scene, but he was treated no differently than Charles Miller, Jr., who saw that gun and spontaneously murdered Snyder. “Felony murder says you are just as liable, you are just as guilty as the person who pulled the trigger,” notes Bazelon. In 2015, Holle’s sentence was commuted to 25 years in prison; he will not be released until 2024.”