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Eliminating the Barrier Between Cops and Criminal Defense Lawyers

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Cops and prosecutors were ordinary people before becoming cops and prosecutors, and that is at least one point of commonality I have with them.

In the District of Columbia Superior Court, I find more cops clam up when I try speaking with them than in any other courthouse where I practice, although there are plenty of exceptions. I do not know how much of it has to do with the high acquittal ratio there for criminal jury trials compared to neighboring Virginia and Maryland. Next comes the discovery desert of Virginia, where many cops — even when otherwise affable — insist that I get all case information from the prosecutor rather than from the cop. In Maryland, cops generally are more talkative, and this is facilitated in at least one county where the prosecutor issues a discovery letter that authorizes the cops to get discovery straight to criminal defense lawyers on request. (Such authority should not be needed, but several times I have loosened a cop’s tongue by showing that letter.)

Generally, a criminal defense lawyer will get more helpful information from cops and prosecutors, and further with negotiating cases with them, when talking with them as if they are next door neighbors. I am not saying to talk with them as friends if that is not how the defense lawyer feels about them, but to talk with them the same as the defense lawyer would ideally talk with anyone. which is with respect, without separation by a ton of armor, with humor when that is fitting, and with realness at all times. That is not always so easy to do when the defense lawyer believes that a cop or prosecutor is being underhanded, dishonest, or uncaring, all to the detriment of the client. That is not easy to do when at the very outset the prosecutor or cop belittles the client as worthless scum. That is not easy to do in jurisdictions and in situations where the cards are particularly stacked against the client.

People can be turned around, of course, and it is easier to do that when they are not keeping their guard up and full armor on. This was underlined once again in court recently. My client was charged with some misdemeanors. Because neither count was jailable over ninety days, we had to have a bench trial before being able to appeal for a trial de novo with or without a jury. We had a chance of winning, but that was not guaranteed. For a long time, the prosecutor would not budge from a plea offer of disorderly conduct, despite my offer to inactivate the case for many hours of community service. The cops essentially said my client had been acting like a royal jerk when they encountered him (that is but the cops’ version).

The prosecutor was much busier than I, and I walked into the hallway where the police witnesses were sitting, apparently with this as their only trial. I made some small talk, and then asked a few open-ended and non-confrontational questions geared in part to figure out the extent to which the police report accurately reflected the observations of the first cop on the scene, who did not write any report nor notes. The event happened a few months ago, and the cops seemed very interested in discussing the case with me. Sometimes all that is needed is an actively listening and non-judgmental ear by the defense lawyer. The prosecutor came over, and we all conversed about my idea of inactivating the case for community service. I calmly mentioned some of the weaknesses in the prosecutor’s case, and said: “Of course, I do not know what the officers’ other obligation are today that might encourage my community service offer. As for me, I always calendar to be in this courthouse the full day.” Ten minutes later, the prosecutor accepted my offer.

Taking a just folks approach can work with more serious cases, too, but usually will take longer than the five to ten minutes in which I took the above misdemeanor case out of the radar of a possible conviction. For some people, taking such an approach is easy because they always are like that. For me, it takes more work. It helps that I now do t’ai chi more often than before, usually not deviating from t’ai chi master Ben Lo’s telling me recently of the need to practice t’ai chi in the morning and evening. This helps me both to relax and sink my mind and body respectively towards my tan tien and the rooting of the ground so as to remove any short fuses and so as to be as uncluttered as a Count Basie solo, a Yasujiro Ozu film, and sometime even Baba Hari Dass’s minimalist chalkboard.

I am also helped to have role models not only in being calm, but in dissipating anger into calm. Great trial lawyers Steve Rench and the late Bob Ritchie exemplify ongoing calm. However, because I still experience significant anger from time to time, it helps, too, for me to draw inspiration from those devoted to calm who still struggle with anger. The concept of being mindful of anger is underscored by Claude AnShin Thomas, who became a mendicant Buddhist monk years after killing hundreds of people in Vietnam. I met Mr. Thomas five years ago during his speaking tour, and was taken by his dual approach of not denying or suppressing the anger that he still lives with, but also doing his best to dissipate and reduce the pain and anger. When he is about to get angry, he accepts the feeling, but tries to dissipate it by focusing on his breath and on the sound of a bell, which helps get him back to concentrating on his breath and calm rather than on anger. For me, sometimes I silently repeat the odaimoku, Na-Mu-Myo-Ho-Ren-Ge-Kyo, which is the Nichiren Buddhist prayer for peace, and I relax and sink, as with t’ai chi. I put that acronym, NMMHRGK, on my license plate, to inspire my ongoing calmness as I travel the roads.

If Claude AnShin Thomas, who experienced and caused so much pain, death and misery can find a way to dissipate his anger, his message is that just about everyone else has the capacity to do it.

Compassion is a critical part of dissipating anger, as is finding a way to feel connected with others, even those seeming to act like hemorrhoids. Most people do not intentionally act like hemorrhoids. They often act like pains and cause pain to others because they are in pain, or else are so wrapped up in their own world that they have trouble considering others. It is much easier to conceptualize of this when sitting alone typing at the computer than when confronted with people acting in such a way. Take for instance t’ai chi teacher Arthur Rosenfeld, who already knew the tools for t’ai chi calmness but whose first reaction to a man hurling insults at Rosenfeld for not finding a way to pull up any further in the drive-through line was to go for the door to slug the other driver. Rosenfeld’s reaction went beyond that to a physiological downhill metamorphosis:

“[M]y ire grew even further. Testosterone and adrenaline flooded my body and in a few seconds I had transformed from the peaceful, content, slightly thirsty writer/teacher to a raving lunatic. My heartbeat was up, my hands were clammy, my muscles were tense, and the whole world had constricted down to the tiny business of completing my hostile mission. Then I glanced in the mirror. The face of the impatient driver behind me was florid and twisted with anger and hate. I refocused my eyes and noticed that my own face didn’t look much different. Whatever plague had taken him had penetrated the steel and glass of my car to infect me too, robbing me of my much-vaunted equilibrium, my peace, my balance, my equanimity–precisely that thing that my beloved tai chi training, and the Chinese philosophy behind it prizes most highly. I teach my students that it is best not to lose that balance–wuji in Chinese–through meditation, breathing, and tai chi training, but when you do, you can use any of three ‘doors’ to get it back. Door number one is meeting force with force: I could go ahead and start a fight. Door number two is yielding: I could kowtow on the concrete, admit to being an idiot, and beg the other driver’s forgiveness. The best option, however, is door number three. That door is different every time. The trick is to figure out what that is.”

Rosenfeld chose door number three by telling the cashier he was paying for his own coffee and the order of the car behind him, even though it turned out that the honking man behind him had ordered a full spread for the whole carload. What happened next can be seen as the meaningful truism that expressed anger does not disappear in thin air and that goodwill is contagious, rather than as a corny publicity stunt possibly lengthened by the Starbucks drive-through store, in that the incessant honker proceeded to pay for the order of the car behind him, and the whole routine continued like dominoes with car after car that proceeded. Such a routine is embodied, by the way, with those who eat and volunteer at Karma Kitchen in Berkeley.

Rosenfeld admits that his purpose was no higher than to return to calm, and he drove away to avoid the honker from finding him. However, he paid with a credit card, Starbucks blew his cover, and the media tracked him down to play the story on television. The newscast is displayed here. (Thanks to Taijiquan Journal for referencing this story.)

Rosenfeld’s focus on a door number three that covers a different approach depending on the challenge is being in the t’ai chi moment. Jon Katz.