High Court Rules Dog Sniff During Traffic Stop OK Without Suspicion Of Drugs

I disagree. If what you say is true (that we are on a war footing equal to World War II) then where are the concentration camps holding all muslims who are a threat? Where is your draft notice? Where is your gas rationing card? Where is the Congressional declaration of war? Why havn't we dropped a nuke on Mecca?

It is not necessary for each parameter (WW2/WOT) to line up for the urgency of the war on terror to be realized. It is far worse now then it was during WW in terms of potential harm to the mainland by these freaks. They have no regard for human life at t all including their own. The choose to deliberately kill innocents to extract the maximum level of fear. Their goal is to demoralize the American population to the point that we will simply throw our hands up and retreat from the war on terror and instead assume a defensive posture. If and when that happens we will have lost the war, because like Spain, the animals will know that the more brutal they get the more likely are they to succeed. Ted Kennedy, John Kerry and the rest of the "we are losing in Iraq, quagmire, disaster, wrong war, etc crowd are the best thing that has ever happened to the terrorists.. These are the same people that cost us the war in VN. we won on the battle field and lost in the media. Muslims and Muslim look a likes should be made aware that they are being watched every single minute of every single day. They have done virtually nothing to condemn the violent nature of these crazed fanatics. If I am mistaken then show me some sustained instances of criticism by any of these groups against the terrorists. Knowing the potential for violence and wanton savagery that is seemingly in the genetic makeup of these wild eyed crazies, what will it take for you to believe this nation and in fact the world has never been in greater danger the it is today. The world was in danger during the cold war, to be sure, but at least the Russians knew the consequences of a nuke exchange would more then likely wipe all of us out (M.A.D.)and this acted as a deterrent. With the rag heads they not only do not concern themselves with their death they actually welcome it because they believe it will bring them to a better place. This type of enemy is the most formidable and should be feared the most. They also need to be destroyed where they are being bred and closely watched within the country where they immigrate.

"I hope you can agree, for discussion's sake, at least, that enforcement of drug laws is important, given the damage that is done to the country (don't argue with this, pls. It's already carved in stone. 8-) )"

I agree that drugs cause a lot of problems, but I do not think our current policies do much to alleviate these problems if anything. To the contrary, I think in many ways we are causing more problems than we solve. But I think that for the most part those enforcing drug laws believe in what they are doing. Their hearts for the most part are in the right place.

"But it is LE's responsibility to keep at the frustrating drug situation, and they just do their best with the resources they have."

It is their duty.

"The forfeiture side of drug enforcement is important. It enables LE agencies to acquire new and often expensive tools to fight the drug war, such as trained sniffer dogs."

I wish we'd spend the money on things like drug treatment or other things that might actually be helpful rather than letting the police keep what they kill and thereby encouraging predatory practices. They could still get their drug dogs and that sort of thing out of their budgets.

"Also, drug forfeiture money goes only to drug enforcement agencies, including local PDs, prosecutors, etc. Police Chiefs, for example, get nothing. His captain in charge of the drug squad gets the money, most of which is already committed to specified drug enforcement needs. It's carefully controlled, after lots of looseness at the beginning."

I don't know where you are getting your information. Perhaps this is the way it works where you live but I assure you it is not the way it works in my state. I am very familiar with our asset forfeiture laws regarding disposition of seized assets. Ours are very broad and there is very little oversight over these funds. The money is not "carefully controlled." The prosecutors or law enforcement agencies in charge of these funds do pretty much whatever they want with the money as long as they can somehow claim the money was used for law enforcement or prosecutorial purposes. Here at least, the money is divided among the prosecutor and whichever law enforcement agencies assist in the busts. The head prosecutor, sheriff, police chief, or whoever is running the drug task force or other law enforcement agency that gets a cut decides what to do with the money.

"And the laws on forfeiture have changed over the years. Used to be that LE agencies could keep some seized cars, the ones they wanted, to be used as official vehicles. The head of Federal Bureau of Narcotics (before DEA) in SF drove a big pink Thunderbird, which was seized from a drug dealer. You report observing similar things in your area, but I kind of think that the forfeiture law now has tighter limits on forfeitures than in past years."

Each one of the prosecutors in our county drives a seized vehicle or one paid for from asset forfeiture funds. These are like "company cars" that they also drive home. I know for certain. They've told me this is the case and I know at least one of them is driving one of my former clients vehicles. I'm not sure, but I think they even get some sort of fuel allowance paid for from the drug funds. I know some of the guys from the sheriff's department at least used to be driving seized vehicles, and the former head of our juvenile department who is married to a detective was also driving a seized vehicle up until she left and took another job. I know for a fact the prosecutors also all have memberships to the gym paid for by drug funds and that each have a cell phone paid for out of these funds. These funds also pay for their continuing legal education trips to exotic places and for countless other things like the TV's and cable each one has in their offices, their very nice furnishings and on and on and on. I'm in their office all the time and while they don't tell me everything about where all the money goes it's no secret that it makes their lives a whole lot easier than it is for those of us down the street in the public defender office.

And I am not saying that our prosecutors are pocketing any of this money although I believe that sort of thing sometimes goes on in other counties. I hear rumors about it and some are from reliable enough sources that I tend to believe them. When I was in private practice working in another county I worked with a bunch of folks who had all worked in the office of a prominent criminal defense attorney who was notorious for being able to bribe anyone who could be bribed. My secretary and others in the office recounted stories to me like one where she had received a call from a Mexican drug dealer client who left word for the prominent attorney to meet him at a designated place at a designated time. The attorney left to meet the man and returned with a grocery sack full of money which she was instructed to count and bundle in stacks of equal amounts. She complied, put the money back in the sack and handed over to the attorney. The head prosecutor from that county came up the back stair case a few minutes later, went into the attorney's office and left a few minutes later carrying the grocery sack. That day charges were nolle prossed in a case against a woman caught with several hundred pounds of marijuana, who incidentally, had her fee to this attorney paid for by the Mexican drug dealer who paid over the grocery sack full of money. This is just one of many stories I heard about this particular prosecutor who when voted out of office took a 51% interest in the firm of the attorney who gave him the grocery sack full of cash, and some of these stories came from people I knew well and trusted.

I don't think that kind of thing is going on where I work now but I have no doubt that asset forfeitures make a difference in plea negotiations. For instance, I was in court just a while back and I watched a guy plead to possession of dozens of kilos of cocaine with intent to deliver. They hadn't seized any cash in the bust, but the prosecutor announced at the plea that $25,000 was going to be forfeited pursuant to the agreement. The guy went to prison, but he got a better deal than most and I believe charges were dropped against others in the vehicle, which rarely happens here. Did something fishy go on? Did he get a better deal because he came up with $25,000 to forfeit? I don't know, but why the heck else did he come up with $25,000 to forfeit over to be split by law enforcement and the prosecutor's office? Surely he was getting something in return.

Being a public defender, my clients generally don't have big bucks to offer to prosecutors in exchange for better deals. But often I'm able to seal a deal by having my client agree not to contest a forfeiture. Sometimes it's for a vehicle, or maybe just the money from the paycheck he can prove that he just cashed. In some cases there are no real grounds to forfeit the assets but knowing most of my clients don't have the funds or the wherewithal to contest a forfeiture I'll see if I can get the prosecutors to budge a little in the negotiations in exchange for my client signing a consent order allowing the forfeiture to go through without contest. It makes a difference for them and the more money people have to forfeit the more difference it can make.

"But I think it's an error to conclude that LE's motive for concentrating on the WoD is closely tied to the desire to acquire funds."

You are naive. I'm in the trenches of the drug war. I see with my own eyes what is going on. Our office handles thousands of pounds worth of drug cases every year, everything from the simple possession and small time dealer cases, on up to drug mule cases where our clients are caught with over a thousand pounds of pot or hundred of pounds of coke or meth. We have thousands of pounds worth of active cases right now. We handle about 80% of all the criminal cases in our county and at least one of us is almost always in court when private attorneys plead their clients. We see what's going on with our clients. We see what goes on in court. We're in a small town in a small county dealing with law enforcement, the prosecutors, private attorneys, and the people working in and around the courthouse everyday and there isn't a whole lot that goes on around here in this business we don't know about. At least where I live, asset forfeitures are a huge factor in the efforts the locals make in the WoD.

"Forfeiture certainly had nothing to do with the arrest which was the basis of this thread."

I don't know about that. Just because they didn't seize money doesn't mean they weren't out there in force looking for it. And if it's anything like it is here up there you can bet they seized the vehicle if the driver owned it, and a hefty cash forfeiture would have helped him get a better deal if he could come up with the money somewhere.

Now, it's not all about the money. They also love the recognition and the pats on the back. They get to lay out all the bundles and stand there proudly for the TV cameras and the photographers from the newspaper. I always get a kick out of those pictures, like the ones where they bust a guy in his house with a pound of weed and lay it all out on a table with all of his hunting rifles and whatever cash they find. They stand there like they are getting their picture taken with a twelve point buck tied to the hood of their pickup truck.

"Most pro drug dealers use rental cars to conduct drug business."

I don't know about "most," but a lot of the drug mules anyway do drive rental cars. I don't think this is done so much to protect assets as it is done out of the fact that they don't have anything else to drive. It's kind of like the guys with the "mobile meth labs" and the labs set up in motels. The paper will make a big deal out of how sophisticated these people are now but in my experience most of these guys don't have a pot to pee in and the only reason they are doing something stupid like cook dope in a motel room is because they don't have their own place with utilities turned on to cook the stuff. Our office is appointed to represent at least nine out of ten of the drug mules arrested here because most of these guys don't have any money. A lot of them never even make bond. They get offered a few grand to haul a load of pot or whatever across the country and they use whatever means they can get to get the drugs from point "A" to point "B." It's not like using a rental car is a good idea. The cops are looking for rental cars. It's like I told a lady today who is getting ready to plead on one of these cases after being pulled over for a bogus reason with a few pounds of pot. If you have California, Arizona, or New Mexico tags, that's a red flag to the police. If you are a minority they are really going to be looking for a reason to pull you over. Rental cars are another red flag and if you are a minority driving a rental car with California tags you might as well spray paint "bust me I'm carrying drugs" on the back of your car because some yahoo is going to pull you over anyway even if he has to make up a reason for the stop.

"I don't think you can point your finger at LE for what you think is wrong in all this WoD stuff."

I agree. They are just doing their jobs and I know some stand up guys who work in law enforcement or as prosecutors. It may sound like I'm anti-police, but that really isn't the case. I'm more frustrated by the laws and the way the system is set up that encourages abuses and outright corruption and creates and us against them dynamic between law enforcement and large segments of our population. I'm frustrated with the way Constitutional protections are being lost forever in the name of the WoD. I'm frustrated by the unfair results I see. I'm frustrated by the few bad cops and prosecutors who abuse the system, violate the Constitution, and screw innocent people. I don't even like it when they kick the not so innocent while they're down and basically steal their money and punish them more than they deserve. And I don't like it when they lie even if the guy is dead guilty because someday they're going to be wrong and lie to convict someone who happens to be innocent.

"And that has happened, and a routine part of a dog-generated drug case trial is the court presentation showing the dog's hit reliability is sufficient to validate his discovery of the drugs."

That's not the routine here. We can't get anything out of these guys about how reliable their dogs are and so far we haven't gotten a judge to toss a case yet on that issue. These guys basically get away with testifying that they could tell the dog alerted by the expression on the dog's face. As for accuracy they'll just say the dog is right more often than not and that satisfies the judge. Judges, being prosecutors in black robes for the most part, don't care if cops make up probable cause as long as the cop will say enough to keep the judge from being overturned on appeal, and the cops are well trained on exactly what they have to say to make a bust stick. Every once in a blue moon we'll catch one of these guys lying through his teeth about something and the judge will have to toss a case, but the next time that same cop testifies at a suppression hearing the judge will find his testimony credible no matter how fishy it is. If he says the dog smiled and winked at him and through his years of training and experience he knew that to be a signal from the dog that the car contained three hundred twelve and a half pounds of pot the judge is going to say "motion to suppress denied."

Enjoy your day, but only to a limited extent.

just a quick thought:

it seems the overwhelming response here at Free Republic is pretty much the all-American libertarian response to more government intrusion: shock, disgust and a healthy dose of skepticism about government intentions. That's good. Oddly enough, most "left"-leaning sites seem to be full of a similar response on this particular issue. If the vocal conservatives are opposed to this and the vocal (civil-liberties oriented) liberals are as well... who the hell is supporting it?

Someone already pointed out the irony of two of our more "liberal" SC Justices being the voice of sanity on this issue... Maybe it really isn't an irony at all; maybe it's simply our long-held delusional fixation on the "left-right" shell game finally becoming too obvious to ignore anymore.

Isn't it time to start re-assessing our out-dated, intentionally divisive concepts of "left" and "right"? Maybe we could simplify the question: are you FOR government intrusion into the lives and business of peaceful people or AGAINST it? That's what matters. "Left" and "right" are meaningless... who cares which side of the aisle some French member of parliament sat on, anyway? It's time to get on with the business of freedom, across the board, on EVERY issue.

"I live in Hawaii, which has tight agricultural controls over fruit (and other things). Incoming passengers are notitified of the regulation against bringing in fruit, but some forget they have some, some try to slide it through, etc. There is a small beagle, wearing a knit vest, which sits at the bottom of the escalator leading to the baggage claim area. The dog just calmly walks around the passengers as they come off the escalator, and sits down when he smells fruit. An inspector meets the passenger and looks in the carry-on bag, and seizes the fruit. There's no other penalty (there could be, in aggravated circumstances). That dog is uncanny."

The difference between this and the dogs working the highway is that this nice little dog is searching everyone. The dogs are used on an awful lot of people on the highway too, but they aren't searching anywhere close to everyone. What is really going on a good bit of the time is that they are stopping and searching people based on whether or not they are from certain states, their race, and that sort of thing. They're looking for people who look like they might be carrying drugs and they're focusing

You can't feel too sorry for people who get busted this way. They were breaking the law and they got caught. If the cop was cheating no one is really going to care. The thing is though that for every bust there are countless innocent people who are searched and harassed and treated like common criminals because the cops didn't like the way they looked. We're going to see more and more of that as time goes on and the 4th Amendment loses meaning in this country. And while now only a minority of the people are feeling the heat from law enforcement, give it time, they'll expand their horizons and more and more of us will fit into the class of people law enforcement find inherently suspicious.

You're OK wit' me, TKD. I spent 36 years in LE, city and federal. Worked on drug cases, but always as a support person. I was never assigned to a drug squad. I was, however, involved in cases that did involve forfeitures.

Besides the fact that it demonstrates your perspective on these matters, you should know that I think you have the world's most difficult job. I almost never agreed with PDs, but I always respected them, and the few times I was able to meet them on a social basis, most all of them were pretty nice guys. That's what I'm getting out of your last post.

Do you believe your job has influenced the way you think about police and the prosecutorial system? I guarantee you that's the case on the LE side, with respect to the non-reality that takes place in court, and defense attys, including PDs, lying (it's what we call it...don't know what you call it....license?) about police conduct, what a nice guy this drug dealer is, and all other shenanigans to get their client off the hook, or out of jail, etc.

Please do not take offense with the word "lying" in the above paragraph. I mentioned the non-reality of the court. Somehow (talking about state court) when a cop comes in to testify, he is baffled by the direction the case has taken, where a very simple and direct drug bust winds up a challenge to his integrity and worse. And, on the other hand, past behavior of the defendant cannot be used against him (unless he takes the stand).. His personnel file is often made available to the defense, so that the officer gets grilled, again, about any past disciplinary action he has received He's supposed to be the good guy, for gosh sakes. He is sworn in every time he takes the stand. He'd be gone if he ever got caught lying under oath. But only his disciplinary record is important to the defense. NM that this officer/detective has a clean record for integrity under oath, and is a good officer and a good family man.

Best all-time example of this is the OJ case.

The defense wants to discredit him, no matter what. An experienced officer knows what is required of him in court, and he testifies as precisely as he can, not only to ensure that the truth comes out in court, but to protect his reputation and his job as well.

Federal court is much different. I have never had any doubts about the integrity of any federal court where I've testified. As a matter of fact, most federal judges run a tight ship, so to speak, and while defense attorneys may still attack the credibility of prosecution witnesses, the judges limit this to what they consider a resonable amount, and do not allow fishing expeditions, when the defense has no indication of past bad behavior by the winess.

In federal court, the lead investigator, usually, deals directly with the prosecutor handling the case. He is therefore aware of deal offers and any other issues that might arise during the prosecutive process. He is able to give his opinion about final charges, deals, prison time expectations, etc. This is almost never the case with respect to local police and the state prosecutor, where, after the police submit their reports, they never hear about it again (usually) until they receive a subpoena to testify in court. And that's when he finds that some deals have been made which foreclose him from even mentioning some important aspects of his investigatgion
as a result of a deal made by the prosecution and defense.
Cops see plenty of guilty folks just walk away. It's just the system.

I know you don't agree with much of what I've said to this point, but it does reflect LE's attitude, and it's based on many, many experiences. You, however, observe just the opposite, as a too-high percentage (in your view)of your impoverished clients are convicted and jailed. And, again, that's about the biggest point I'm trying to make, that we are looking at the same process from different sides, and, especially over time, we become jaded without realizing it.

Court is adversarial. It's one side against the other. The truth is, ideally, supposed to be made clear. Doesn't always happen, especially when what the cop saw, found, etc, ie, the truth, doesn't show in court.

There is an old saying: "The people get the kind of LE they deserve." I've also seen it with the last word as "demand". I think that's valid both ways. What it means, to me, is that only the people can ask for procedures or laws to be amended to the degree that the perceived abuses can be dealt with.

If you want the drug laws changed, make the effort. Without the drug laws, you won't ever see the cops make another drug bust, or even walk a drug-sniffing dog past your car. (General comment, not specific to you, TKD.)

Nice talking to you, TKD. Come back or PM if you want to talk more.

My, My you do get upset and make a lot of assumptions.

I fought with my vote all or many of the things that
you YELL about. I don't like it any better than you
do. I would have thought that you could have seen that
by my other comments. Well I guess they don't mean
anything to you. That is OK. Mai pen rai (never mind).

To answer the question about my children and grand
children. They know what I think when I think it
both the good and the bad. Your assumption makes an
ass out of you not me.Thank you very much.

I will go out on a limb here and say that the odds are
that your spouse,if you are married doesn't know as
much about you as my children and grand children or
even some of my close friends.

My point is that congress and the rest of the government
have sucked away my rights and yours year after year.
I plead with you to do as I have done to fight with your
vote to change this.

Oh dear, you are too funny!

Did I somehow imply that I wished to harm someone? You seem
to jump to conclusions rather fast.

Deep breath ... 1,2,3 exhale. Now isn't that better?

Remember algebra? If a=b=c then a=c. If your hypo is based on the decision, and the decision is based on the case, than your hypo is based on the case. I see logic isn't your strong suit.

Common sense and law aren't your strong suits I guess.

Court decision set legal precedents. Legal precedents make changes in criminal guidelines; in courts and in law enforcement. Changes in law enforcement guidelines opens or closes doors to law enforcement procedures. In this case it opened doors. New criminal procedures and guidelines may be applied across the spectrum of possible criminal cases making the legal precedent applicable to cases that in no way resemble the case by which the precedent was set.

Little fascists like you think it's just fine to twist or ignore the meaning and intent of the Constitution when it suits your agenda but somehow you indulge in the fantasy that those excesses won't be used in other ways. Ways that can be used to gore your ox when political winds shift as they invariably do.

Go back to class, you don't even know algebra much less basic logic.

In this case it opened doors. New criminal procedures and guidelines may be applied across the spectrum of possible criminal cases making the legal precedent applicable to cases that in no way resemble the case by which the precedent was set.

Or, just the opposite. Some goofy doped out druggie's lawyer tries to argue a silly approach to the constitution and the court slaps him down. The criminal procedure stays the same and is in fact validated, the doper goes to jail, the cops keep his pot and another school yard is saved from a drug pusher. Try again F. Lee

Little fascists like you think it's just fine to twist or ignore the meaning and intent of the Constitution when it suits your agenda but somehow you indulge in the fantasy that those excesses won't be used in other ways.

Where in the constitution does it guarantee the right to keep and bear a bale of dope?

Time to start covering your car in cayenne pepper...just for spite.

"Besides the fact that it demonstrates your perspective on these matters, you should know that I think you have the world's most difficult job. I almost never agreed with PDs, but I always respected them, and the few times I was able to meet them on a social basis, most all of them were pretty nice guys. That's what I'm getting out of your last post."

I appreciate that. I know what it must sound like when I make posts like I've done in these threads, but in real life I respect most police I know. I'm always in court and I'm always dealing with these guys. I'm on a first name basis with most of the local guys. Most are good guys who are fighting to do what's right and make our community a better place. Their pay is lousy, even compared to public defender pay, and they work dangerous high stress jobs.

A few, a small minority, are rotten. Some of the bad ones are sadistic sociopaths. Others aren't necessarily fundamentally evil, they're just so hell bent on winning their cases they'll play dirty if that's what it takes. They forget that it's not all about winning, it's about doing the right thing. Unfortunately this is something we can all get caught up in, whether we are law enforcement, prosecutors, or defense attorneys. Within an adversarial system, it's easy to get caught up in the fight and forget about some of the important principles we are supposed to hold near and dear to our hearts.

"Do you believe your job has influenced the way you think about police and the prosecutorial system?"

I'm sure my job has influenced the way I think about our system. As for the way it's changed my attitude toward police, it's actually made me have a lot more respect for them than I once did. When I was younger I pretty much stayed out of trouble and accomplished the things I needed to accomplish in life, but I was a pot smoker and I even messed around with some of the harder stuff. Police were strictly the enemy to me. In my view, me and people like me should be left alone, but knew these guys would bust me my friends in a second and try to ruin our lives. We weren't criminals. We weren't hurting anyone, but these a-holes were out to get us and we didn't much care for people who were out to get us.

Now I have to look at things differently. My pot smoking days were done a long time ago. Now I deal with hardcore drug addicts on a day to day basis, and I see a lot of the problems they cause. Some of the people I have to represent, drug addicts or not, are just horrible people, the absolute dregs of society. I've had clients I'd just as soon poor gasoline on and set them on fire and give them a head start to Hell rather than represent them. It gets so bad at times I get to thinking maybe I need to go over to the dark side and start prosecuting these people, but I always come to my senses.

"I guarantee you that's the case on the LE side, with respect to the non-reality that takes place in court, and defense attys, including PDs, lying (it's what we call it...don't know what you call it....license?) about police conduct, what a nice guy this drug dealer is, and all other shenanigans to get their client off the hook, or out of jail, etc."

I don't lie in court. I have to look at myself in the mirror every day, and while I may not be very pretty I have to like what I see. If I sold myself short and turned into a lying scumbag at work, I couldn't look at myself, and I couldn't be the example to my children that they deserve. I couldn't live that way. Likewise, if I didn't give my clients 100% and zealously represent them, I wouldn't like what I saw in the mirror either.

I understand the animosity police have for defense attorneys. But I think for the most part we aren't the ones lying. Why would I lie about a police officer? I'm not testifying. I'm not giving any evidence. I will certainly attack a police officer on the stand. I just did it the other day when they had apparently been threatening one of my witnesses telling her what she had to say on the stand or face serious criminal charges. Now, she and my client could have been lying to me. They do it all the time. But I pretty much have to take what they say at face value when it comes down to it. I'll tell them up front if their story is not plausible and no one is going to believe it, but if we go to trial I'm putting the evidence on if I think it could help my client's case and if I am not sure it's a lie. I've been burned on that before. I've been convinced my client was lying when it turned out he was not, and I owe it to them to fight for them and tell their side of the story even if I am not convinced it is true. I would want nothing less from my lawyer if I were in the same position.

I hate that one part of my job though. I'm probably lied to ten times a day. Sometimes they are so believable but it turns out they've really snowed me, and other times I just expect that what they are telling me is b.s. but it turns out to be the truth. I absolutely will not let them get up on the stand and lie though when I know for a fact that is what they are doing. We'll find another way to skin the cat, or they'll shut up and plead guilty and take their medicine. As you know that's what happens better than 95% of the time anyway.

But you are dead on about there being "non-reality" in court. The lawyers are advocates for their cause, for their clients. We aren't helping each other get the truth out. We're telling our clients side of the story. That's our job. And as criminal defense attorneys we don't even have to do that. In most cases we don't have to prove anything. The prosecutor has the burden of proof, and if he doesn't meet it then I'm asking the jury to acquit. I'm not telling them my client is innocent and therefore they should run up stares and reach a verdict of acquittal. I'm telling them that the prosecutor hasn't met his burden by proving each and every element of the crimes charged beyond reasonable doubt and therefore they must find my client not guilty. It is better that a guilty man go free than an innocent man be wrongfully convicted. If we don't hold the state to their burden you can be sure that innocent men will be wrongfully convicted. It is the duty of the jury to reach a not guilty verdict if the state does not prove each and every one of the elements of the crimes beyond reasonable doubt. As a defense attorney it is my duty to hold them to that burden and make them fight to prove their cases. I'm not there to get the whole truth out if my client is guilty. That's their job.

In most instances though if I know my client is guilty I'm trying to convince him either to plead, or to go into court and take responsibility for what he did. In that type of case, "winning" doesn't mean getting a not guilty verdict. All we are trying to do is beat the prosecutor's plea offer. We're betting that the jury will give him less time, or a fine, or whatever. Sometimes though, if the prosecutor's case is weak, we'll make him prove his case and then ask for mercy. But I personally try to avoid doing that because I know the jury is not going to be happy with him after he makes them sit through a long trial and appears to have tried to weasel out of the trouble he is in. He'll make the decision but unless the prosecutor has a really weak case I'm advising him in most cases to own up ask for a reasonable punishment.

Now the non-reality is not just coming from the defense side, it's coming from the prosecutor's side too. They'll put on hokey evidence and act like it's the gospel truth. They'll play hide the ball. They'll sling mud and try to obfuscate the issues. They try to keep our evidence out. They certainly aren't trying to help us get our side of the story out. They're playing to win, just like we are. They're putting on their witnesses and telling their side of the story, even if they aren't sure it's all true. When they go to trial, they're out to get convictions and inflict maximum damage punishment-wise, in part just to try to deter criminal defendants and defense attorneys from taking cases to trial. That's the way the game works.

"Somehow (talking about state court) when a cop comes in to testify, he is baffled by the direction the case has taken, where a very simple and direct drug bust winds up a challenge to his integrity and worse. And, on the other hand, past behavior of the defendant cannot be used against him (unless he takes the stand).. His personnel file is often made available to the defense, so that the officer gets grilled, again, about any past disciplinary action he has received."

Forgive me but I can't feel too sorry for you here. The deck is stacked against criminal defendants. Police officers have built in credibility because of their badges. Jurors expect them to tell the truth and they expect people accused of committing crimes to lie. As for evidence of prior bad acts, you're comparing apples to oranges. The State can impeach our witnesses just like we can impeach theirs. If you get on the stand, you're fair game. I'm committing malpractice if my client says you are lying and I don't try to impeach you. The prosecutor is sure as heck going to try to impeach my client or my witnesses when they get on the stand. What you think is unfair is that they can't bring up prior convictions during the guilt phase of the trial if my client doesn't testify. That's not the same as impeaching a witnesses credibility on the stand. The purpose of impeaching a witness is to cast doubt on his testimony on the stand. The purpose of bringing up old convictions on a defendant who doesn't testify is to infer that since he has been in trouble before he is obviously guilty this time too. It's a whole different issue, and the fact of the matter is that a lot of this stuff can come in anyway to show things like motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, even if the defendant doesn't testify, and more and more the courts are reading Rule 404(b) so broadly that it's getting hard to keep any of your client's prior crimes out during the guilt phase. Even if he's innocent this time around the jury is liable to convict him on mere accusations and scant circumstantial evidence just because he's been in trouble before. That makes it really hard to get a fair trial on the merits of the case before the court.

"Best all-time example of this is the OJ case."

The OJ case isn't much of an example of anything that goes on in the day to day real world. These TV trials do not reflect what is really going on in courts across the country. In real life, 75%, 80%, or better of the people accused of crimes are represented by public defenders, if they have lawyers. Death penalty trials where I live can be over in a day or two. Criminal trials in state court here almost never more than a week or two. Most are over in a day. I don't think anyone in my office has ever had a criminal trial in state court that lasted more than four days and we have several decades of combined experience between us. I had one set for last Friday and the judge was hell bent on getting two tried that day. Luckily my client pled in the last minute because we weren't going to have enough time to put up the defense I had prepared. The judge was going to conduct voir dire himself and limit our testimony and openings and closings and rush us right through.

These long drawn out TV trials last months and months and cost defendants and taxpayers millions of dollars. You want to know how much money we spend on our cases? Usually we don't spend one dime on them, except maybe we might spend a few cents on copies of documents to be introduced, but that's usually about it. We're on salary so nothing extra is getting spent on attorneys fees. On some rare occasions we might be able to spend a little on a death penalty case or some other serious cases every once in a while, but in most instances we have no budget for anything like expert witnesses, investigators, or anything fancy like that. If our witnesses are out of state then by gosh the defendant better hope they have fat enough wallets and the goodness in their hearts to show up for court because we sure as heck can't fly them down here and put them up in hotels like the prosecutors do. If any investigating needs to be done in their cases they have to do most of it themselves because with hundreds of cases we don't have much time to hit the pavement, knock on doors, and all that stuff, although we do it when we can. We're going to pretty much have to go in that courtroom in most cases and fly by the seats of our pants and hope for the best.

And it's not that much different if people hire private attorneys. We probably know our stuff better than most private attorneys out there and most private attorneys aren't going to spend hardly anything preparing for their cases either. That five, ten, fifteen grand a person might pay a lawyer isn't generally going to get them much except for the lawyer's time. You've got to have the big bucks if you want jury consultants picking your juries, lots of expert witnesses, and teams of investigators, paralegals, and attorneys working your case night and day. In real life hardly anyone has the resources to mount a defense like that.

"As a matter of fact, most federal judges run a tight ship, so to speak, and while defense attorneys may still attack the credibility of prosecution witnesses, the judges limit this to what they consider a resonable amount, and do not allow fishing expeditions, when the defense has no indication of past bad behavior by the winess."

That's the way it tends to work in state court where I live.

"In federal court, the lead investigator, usually, deals directly with the prosecutor handling the case. He is therefore aware of deal offers and any other issues that might arise during the prosecutive process. He is able to give his opinion about final charges, deals, prison time expectations, etc. This is almost never the case with respect to local police and the state prosecutor, where, after the police submit their reports, they never hear about it again (usually) until they receive a subpoena to testify in court."

Police and prosecutors work together on cases where I live. We actually have a really high per capita percentage of law enforcement here (partly because of the asset forfeiture money) and they have time to work their cases and work with the prosecutors, much more so of course on felony cases. Prosecutors often okay deals with the arresting officers, especially if it's going to be a really good deal. I'll often approach an officer about a deal and see if I can get him to put in a word with the prosecutor. Our prosecutors usually go out on search warrants with the guys and stay pretty involved with the process of making the busts and making sure they stick, and they are really involved with the whole CI/snitch game.

"You, however, observe just the opposite, as a too-high percentage (in your view)of your impoverished clients are convicted and jailed."

I do think poor people get the shaft in our system. Law enforcement tend to leave people with money and influence in our community alone. They are less likely to get stopped for minor infractions of the law. They are less likely to get ticketed or searched if they are stopped. In the rare event that those with money and/or influence get in trouble, they tend to get better deals if they do get convicted. Conversely, poor people, especially minorities, are much more likely to get harassed by the police. They are much more likely to get arrested, much more likely to get convicted if arrested, and generally tend to get worse deals in the end.

I grew up with money. If I got in trouble, I got out of it. That's just the way it worked for me and most of my friends. We all partied and did our thing, played around with drugs, went on to college, got good jobs, pretty wives, we've got our kids and our good lives. The people I deal with today don't have what we had. And in many cases I look at them and I say to myself "but for the grace of God go I." I look at the drug addicts and think to myself, I did those things and I never became addicted. Why is it that most of us were able to do our thing and move on with life with no ill consequences? Why are some people predisposed to addiction? I look at the young people caught with a "felony drug" who in most cases have no idea how badly this felony will hurt them for the rest of their lives. I think to myself that could have been me or any of my friends who did the same things when they were younger who would not be where they are today if they had ever been caught, unless of course they were able to fix it with a little money these people I deal with today don't have.

I've gone way too far with this post and now it's past my bed time. If I were to go on I'd write more about why I hate the drug war and our present unhealthy obsession with imprisoning people. I hate that we waste so much money that could be put to better use. I hate that in the land of the free we now we've had this prison explosion in the last thirty or so years that has caused us to have the highest per capita incarceration rate in the world and the highest total number of people behind bars of any other country in the world. I wish that we could do better at dealing with some of the underlying problems that cause crime rather than settling for locking so many up who will spend a little more than a couple of years in prison on average and then 70% of these will be rearrested on new felony charges within three years of their release. I wish that we could examine and evaluate and consider less expensive and less socially damaging policies that may very well produce far superior results than those we are seeing today. But that's a whole other long post I don't have the time or the energy to write.

Good night.