"I am not educated, nor am I an expert in any particular field--but I am sincere, and my sincerity is my credentials." -- Malcolm X
My Credentials
In the spirit of Brother Malcolm, here are my credentials regarding America's legal system:
Sanctioned 11,000 USD by Northern District judge Samuel Conti (the party seeking sanctions later declared bankruptcy);
Sanctioned 1,000 USD by Santa Clara Superior Court judge Socrates Manoukian, who reversed the sanctions verbally at a subsequent appearance once he realized a written order was required;
Flipped off an FBI recruiter at Levi Strauss & Co.'s HQ in San Francisco, California after I criticized the agency and he demanded my name. Fired by Levi's the same day, took a trip around the world shortly thereafter. (Fun fact: the company likes to shorten its name to LS&Co.);
Voluntarily resigned from D.C. Bar in protest against Trump v. Hawaii (2018) and mailed my admission certificates to Supreme Court Justice Sonia Sotomayor;
Arrested by police in 2016, sent to jail for several hours, accused of being under a controlled substance, released without charge due to "LACK OF SUF EVID." (Though I have advocated legalization of most drugs, I do not drink alcohol, nor do I smoke.)
Arrested by police in 2019, sent to jail for several hours, accused of intimidation and obstruction. On the same day I sent trial briefs to the Santa Clara County District Attorney's Office, the deputy district attorney said he would dismiss the case. At the next court hearing, the judge granted the prosecutor's request to dismiss my case in the "interests of justice."
As of December 2020, I remain in good standing with the California State Bar since 2002 and have never had a client submit a complaint against me.
Not All Government Agencies Believe in Transparency and Public Access
"I had a good working system of paying off policemen. It was here that I learned that vice and crime can only exist, at least the kind and level that I was in, to the degree the police cooperate with it." -- Malcolm X, referring to his pre-Islamic days as a numbers runner, bootlegger, and pimp.
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| From Paul Krassner's The Realist, when abortion was illegal throughout America. |
When dealing with American government, an honest man learns his experience varies based on which neighborhood he happens to visit, rendering all positive and negative stories equally true, and guaranteeing substantial private sector involvement. In fact, the more the government fails, the more the private sector enters with proposed solutions. Without balance, we shall live in a country with as many technological and regulatory standards as municipalities and also one where national leaders offer increasingly harsher promises of reform and efficiency.
Today, Americans find it fashionable to bash local cops but not the national military, which lacks sense until you realize most of America's GDP is manufactured, shipped, and protected by the military and its virtually unlimited spending--including marketing--whereas police departments cannot run annual deficits.
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| Kurt Vonnegut Jr. Interview, Playboy Magazine, July 1973 |
Part of the problem is that California judges deem themselves masters of their courtrooms and set their own rules, which include banning recording devices. Santa Clara County, California has notices throughout courtrooms citing Nixon v. Warner, 435 U.S. 589 (1978) and Marin Independent v. Municipal Court, 12 Cal.App.4th 1712 (1993) as authorities against transparency. The result? Unwarranted prestige of one governmental branch over another, with disproportionate respect gained from deliberate opaqueness. It is not until we actually look up the aforementioned cases that we realize the extent to which judges have gone to bar public access and thus public scrutiny. Incredibly, the "Nixon" in Nixon v. Warner refers to impeached President Richard Nixon, meaning California's judicial branch is using a criminal executive as protection against public access. As for Marin Independent, the court cited Nixon and used circular reasoning, holding that media can attend and report on judicial proceedings but has no absolute right to record proceedings because courts can set their own rules. Stated more simply, people can't record court proceedings because the king, er, court says so.
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| Counterpoint from libertarian Justice William O. Douglas's book, Anatomy of Liberty (1963) |
Relevant Statistics
First, five statistics:
1. "74% of people in American jails have not been convicted of a crime. Sometimes this is because they’re considered a flight risk or danger to society, but the majority of individuals in jail are there because they can’t afford bail." -- Christian Science Monitor, August 3, 2020
2. "[M]ore than half of Brazil’s prison population is eventually released without a conviction." -- Christian Science Monitor, August 27, 2020 [I include this statistic because astute readers will notice a connection between USA and Brasil, two countries that share disproportionate Catholic legal influence and a non-coincidental history of chattel slavery.]
3. "One in three U.S. adults has been arrested by age 23. Communities of color; lesbian, gay, bisexual, and transgender individuals; and people with histories of abuse or mental illness are disproportionately affected. As a result, between 70 million and 100 million—or as many as one in three Americans—have some type of criminal record." -- from The Sentencing Project (2015)
4. "Usually missing from the conversation about mass incarceration, however, is any recognition that imprisoned or detained Americans currently represent barely one-tenth of the total population of felony convicts. As a ballpark estimate, over 20 million Americans in society at large currently have a felony in their past, and this immense population is effectively statistically invisible." -- Dr. Nicholas Eberstadt (2019)
5. "The countries with the highest estimated pretrial detention populations on an average day are, not surprisingly, those with the largest general populations. The United States heads the list with 487,000, followed by Brazil (190,000), Mexico (98,000)... As a result of these high pretrial detention rates, 10 to 40 percent of the entire incarcerated population is behind bars without a conviction in most countries in the Americas." -- Richard Aborn and Ashley D. Cannon (2013)
6. "Misdemeanors... [low-level criminal offenses] account for about 80% of all arrests and 80% of state criminal dockets, says Alexandra Natapoff, a law professor at the University of California at Irvine and author of Punishment Without Crime." -- from NPR (2020)
I had four thoughts when evaluating the above statistics. First, American police possess virtually untrammeled discretion--which means judges, city councils, and unions have failed in their presumed oversight function. Second, it follows from the aforementioned that police unions must have substantial power over city councils as well as judges and prosecutors. Third, prosecutors have little say in day-to-day police work and appear to operate in totally separate spheres than police--despite the teamwork one would assume in their symbiotic relationship. (Using an American football analogy, America's criminal justice system is like a QB attempting passes to a WR that drops the ball 3/4 times and doesn't know the play beforehand.) Fourth, prosecutors and police departments use misdemeanors to justify maintaining or increasing funding. After evaluating the above information and spending allocations, you may decide the military controls America's national government and police unions control local governments while politicians rotate every four years to provide the appearance of choice. The overall picture is more complex.
When anyone is arrested, police have an option to take the person to a holding cell-- typically a county jail--or "cite and release." The former requires fingerprinting, a health questionnaire, a mug shot, and other steps commonly referred to as a "booking." The latter is a written citation sent to the county district attorney's office, which then decides whether to file charges. Only if charges are issued are you required to take further action, including checking in at the local police station. Right away, you can see every single cop, whether rookie or veteran, has the power to make your life easier or harder.
You may also notice we are dealing with two different government agencies: the police work for a city, whereas the jail and district attorney's office are run by a county. Both answer to separate government boards and sometimes sue each other to establish their required scope of duties, indicating a potentially adversarial relationship. (Imagine the American football game we described in the previous paragraph, and now add separate assistant coaches who don't always get along and who are paid from different sources.)
Arrest Number One
In my first arrest, the government accused me of taking illegal drugs and arrested me while I was walking. (Again, I do not drink alcohol, nor do I smoke. I am a middling but dedicated former athlete and coach.) After my arrest, I was given a blood test, fingerprinted, questioned by a nurse, offered a Pop Tart, then put into a temporary cell with two other people. (I was also photographed, but I can't remember where in the process this step occurred. It may be that the steps are done based on whomever happens to be in front of a counter rather than in the back.) While I stayed in the cell for several hours, pacing back and forth out of boredom, four to five other people cycled through the same cell, most of them drunk. It dawned on me that even a lowly county jail is an expensive economic ecosystem. My arrest alone bolstered numbers used to justify taxpayer dollars to a lab technician; a nurse; several police officers; the district attorney's office; and private companies selling snacks.
After my release, my personal items were returned, and I used my mobile phone to book a ride-hailing service back to my residence. Other arrestees pay substantial towing fees because they are unable to move their parked cars in a timely manner. If released, they are returned a key to a car that is often fifteen to twenty miles away, because most homeowners don't want to be anywhere near a jail or prison.
Arrest Number Two
My second arrest was at a sporting event. A drunk fan had the audacity to complain to private security about me, even though he was the one causing problems. Long story short, he was with three other people, I was alone, and I suppose four tickets are worth more than one. Unbeknownst to most patrons, sporting arenas are staffed by private sector workers but at least partly owned by cities. Police departments love professional sports because an insurance policy or the law requires a certain number of officers at events, and strapped local governments view sports as a way to boost officer pay and morale off-budget. In my incident, arena police didn't do any work or independent investigation. They simply carried out the wishes of the low-level private security guard and made an arrest.
If you've been reading closely, then you've already extracted the unsteady and variable relationship between the following factors: annually balanced budgets; union negotiations; automatic cost of living increases (aka COLA); voter antipathy towards higher taxes; and competing government agencies. Such interplay provides perverse incentives in favor of arrests--especially considering most arrestees do not have enough out-of-pocket damages to justify a lawsuit. In cases where cities have paid substantial sums to arrestees, serious death or physical injury was part of the arrest, such as in NBA star Thabo Sefolosha's case. Seen another way, an arrest that doesn't lead to a conviction or even a charge still requires the same work as a legitimate arrest, and come budget time, no one is penalized for an arrest that doesn't generate a lawsuit and payout.
After my second arrest, I was taken to the same jail as before and released after several hours. This time, the Santa Clara County District Attorney's Office decided to charge me, which meant they issued a warrant. Unfortunately, they issued the warrant (aka notice to appear) to my residence months after the incident and when I was out of the country and thus had no way of checking in. I later discovered the government is not required to personally serve notice of a misdemeanor warrant/charge. I am unsure if the same latitude apples to felonies, but compare such discretion with a civil case: when I file a civil lawsuit, I must effect personal service of the complaint unless I swear to the court I have tried every means of personal service and failed, a process that requires hiring a third party and/or using a specialized database. It doesn't matter if the case is worth 250,000 dollars or 8,000 dollars--I have to effect personal service, which means I have to do everything humanly possible to ensure you receive the complaint in your hands. (Note: in California, restraining orders utilize a less rigorous process than civil complaints, leading to potentially widespread abuse--and more work for police.) If the court later decides I was not forthcoming about my diligence in locating the defendant, the judge can sanction me and/or refer me for disciplinary action, which could result in the loss of my license to practice law.
Moreover, as a civil lawyer, I cannot sit on a complaint for months as the district attorney did in my case. I am required to serve the complaint within a short period of time and appear at a status conference regularly to tell the court I am actively pursuing the case. If I appear months after I file a complaint and tell a civil court judge that I have done nothing, the judge will likely dismiss the case sua sponte. Suffice to say, I was more than a little stunned at the gap in required diligence: work for an individual or business trying to get money, and you better cross your "i"s and dot your "t"s, or you can't get past the first stage of litigation; work for a government that can imprison you for failing to appear at a police station, and you can jail someone for 11 months without a reasonable person ever receiving or knowing about a warrant.
Here we may be tempted to judge government more harshly than the private sector, but what we're actually seeing is government exempting itself from rules in order to avoid unnecessary costs or the potential for employee discipline. Since most governments are self-insured, any litigation, whether employee mistreatment or police brutality, impacts innocent taxpayers. In short, when the government "turtles," its shell is designed to protect the innocent. What's the catch? "Turtling" protects taxpayers but destroys the ability to see defects in governance, ensuring long-term decline. On corruption, George Carlin once remarked, "It's a club, and you ain't in it." When threatened, the "club"--any club, really--binds together more tightly, preferring jurisdictional carveouts as defectors sprout like statutory subsections from an original statute. The outsiders, aka the "others," leave because they are ignored or poorly treated, and they leave because the main body of law has failed to institute effective procedures alerting them to dissatisfaction. Even if you don't know Goodhart's Law, you know incentives matter, and incentives drafted in response to creeping corruption require plain eyesight, not rose-colored glasses or blindness.
Predictably, as voters raise complaints, city councils--staffed mostly by lawyers and de facto union representatives--increase regulation. Yet, because the regulation is like an NFL front office demanding changes to the strange QB to WR scenario discussed earlier, we have the additional obstacle of the blind inserting themselves into a game they do not fully understand. Faced with miscommunication and mixed signals, the QB, the WR, and the coaching staff all form their own clubs to insulate themselves from further regulation. More arrests are made or not made to placate the front office (aka city council), and regulation intended to reform has merely decreased morale: "These arrests are based almost entirely on the word of cops, who say they are incentivized to round up as many 'bodies' as they can."
Meanwhile, in criminal court, the district attorney runs the show. The judge, being structurally independent, has no pre-trial contact with the police or the accused, and thus relies on the integrity of the district attorney, who in turn depends on the integrity of the police. At the hearing where my charge was dismissed, about thirty other cases were present, and the judge didn't know any facts of my case, not even my arrest date--even though I could have been sent to jail for months. The judge brushed aside my comment that California's de facto one-party state had seemingly produced an outcome where life and liberty are treated with less respect than property and money. (Later, I realized civil courts function better than criminal courts because businesses, especially cost-conscious insurance companies, regularly use civil courts, whereas poor people and government employees regularly use criminal courts. Stated another way, each civil court filing provides hundreds to thousands of dollars for the government as well as the private sector, but each criminal court case is a negative taxpayer cost because criminal courts do not charge the accused fees or costs.)
When Americans think of respected American judges, they are thinking of appellate courts with limited dockets, not busy trial courts. The United States has a few judges who will be remembered as bucking the tide of totalitarianism, namely Judge James Robertson, Robert Takasugi, Roger L. Gregory, and of course Justice Sonia Sotomayor. None of them are now trial court judges, which means you, an ordinary citizen, could never be heard by them. At the first level of litigation are mostly judges who do not understand much, who specialized in only one area of legal practice, and who are at the mercy of information given to them by lawyers. Were tragedy not certain, one might marvel at the fact that American courts depend on the integrity of lawyers in a country where most people do not trust lawyers and most lawyers do not trust each other.
Conclusion
As of 2020, I am not actively practicing law, and I've enjoyed not wearing a suit in five-plus years. Abraham Lincoln once said, "Let no young man choosing the law for a calling for a moment yield to the popular belief -- resolve to be honest at all events; and if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer." When I realized I could not give my clients reasonably predictable outcomes based on the evidence, I resolved to quit practicing law as soon as possible. To the extent Americans cannot find an honest lawyer, judges may realize too late they have relegated American courts to the realm of the rich and the overinsured.
It is tempting to say the United States should become like India, a country with perhaps an even more complex legal system. After all, post-colonial India excels at technology within a large, multicultural, and diverse land once colonized by the British, and no less a visionary than Jeff Bezos has said, "I want to make a prediction... I predict that the 21st century is going to be the Indian century." Realistically, we should strive to be exactly like ourselves, no better and no worse, and accept that growing pains are a normal part of a young nation's growth. One day, we will realize the foundation of globalization was built on an inherently insecure technological standard, and we will understand our devolution from civilization to fragmented security state. For now, until diplomacy and global cooperation improve, all we can do is hope our lonely betters survive to tell our stories as we stumble along in open darkness.
© Matthew Mehdi Rafat (December 2020)
Dedicated to David Simon, creator of The Wire (2002-2008)
Disclaimer: Nothing herein is legal advice. As of December 2020, I am not accepting new clients. I am writing solely in my capacity as an observer, and your experience with police and/or the criminal system may differ substantially from mine.
Bonus: Good Journalist Hunting, Part 1 is HERE. Part 2 is HERE.
Update: I don't mean to imply civil courts are perfect or more conducive to justice than criminal courts. Most civil court motion judges don't read all of the parties' briefs, but their law clerks prepare memorandums for them, which provide summaries of relevant law and facts. Civil court is procedurally intensive and geared towards creating a record of everything, which delays justice but also tends to soften both parties' original demands. In state criminal court, the district attorney functions as the judge's de facto law clerk until trial, blurring the lines between independent judiciary and executive branch (i.e., the district attorney acting on behalf of the state, mayor, and police). Compared to civil cases alleging over 25,000 USD in damages, most criminal cases lack bespoke dispositive motions because the system assumes a trial will take place, even though most civil and criminal cases settle or plead.
Since lawyers know most cases settle, they are incentivized to overcharge or to allege every possible violation, but with an important difference: if a district attorney overcharges, s/he can usually drop the unnecessary charges before trial without consequences, whereas a civil lawyer, upon opposing counsel's request, must spend hours matching all of the facts and evidence to each element in each claim early in the case. This is another way of saying criminal statutes are extremely broad, whereas civil statutes at least attempt to restrict both parties. At the end of the day, civil lawyers not working for insurance companies have to show their clients results to get paid, and if a civil lawyer files too many claims or motions, at some point, the civil lawyer's own availability or client becomes a check and balance on excessive behavior.
Finally, some civil lawyers do get default judgments against individuals by publication or by serving the complaint at an old address, but they still have to declare under penalty of perjury that 1) the address they used is the one given to them by a third-party investigator or specialized database (Lexis-Nexis, etc.); and 2) they attempted personal service at known addresses, including work. Any defendant not personally served can also file a straightforward motion to remove a default judgment if plaintiff failed to exercise proper due diligence.
Update: regarding court transparency, the following opinion from federal Judge Davila in USA vs. Elizabeth Holmes (2021) is useful:
The United States Supreme Court has held that the right to attend criminal proceedings “is implicit in the guarantees of the First Amendment.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 556 (1980). The First Amendment right of public access extends to pretrial proceedings as well as documents filed in connection with those proceedings. Associated Press v. U.S. Dist. Court for Cent. Dist. of Cal., 705 F.2d 1143, 1145 (9th Cir. 1983); see also Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1178–79 (9th Cir. 2006) (“Historically, courts have recognized a ‘general right to inspect and copy public records and documents, including judicial records and documents.’” (quoting Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 & n.7 (1978))). Access to judicial records, however, is “not absolute.” Kamakana, 447 F.3d at 1178. The Supreme Court “has made clear that the right to an open trial may give way in certain cases to other rights or interests, such as the defendant’s right to a fair trial or the government’s interest in inhibiting disclosure of sensitive information.” Waller v. Georgia, 467 U.S. 39, 45 (1984).
