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Gina Tessener’s 0.0 BAC arrest highlights fallibility in the criminal justice system. Back to more frequent blogging

Jul 11, 2011 Gina Tessener’s 0.0 BAC arrest highlights fallibility in the criminal justice system. Back to more frequent blogging

My weekly blogging activity is usually more active than last week’s two entries. Two factors were last Thursday’s crash of my blog that my sitehost attended to wonderfully and right away (thanks immensely!) and last Friday’s being out of town. The criminal defense and civil liberties items keep coming, including the following:

Recently, a non-lawyer who is rather mainstream and conformist told me about some recent negative encounters with police for such minor matters as traffic stops that challenged his previous higher overall view of police. I acknowledged how uncomfortable his encounters were, but also pointed out that he can now do a public service by spreading the word that not all is Disneyland with all police and policing, because people are more likely to believe him than me about that state of affairs.

As I have said again and again, police are drawn from the general population. A significant percentage of people in society have such serious personal issues — or just lack of personal development — that they do not belong with the power of policing, a handgun, and a taser  — which can escalate the personal problems — just as a significant percentage of people do not belong in the military, making decisions about whom to shoot or not in the battlefield. Unfortunately, so long as we continue with our overgrown and overly-budget-burdening criminal justice system (which can be shrunk, for instance, by legalizing marijuana, heavily decriminalizing all other drugs, eliminating mandatory minimum sentencing and the death penalty, and eliminating per se guilt for 0.08 blood alcohol levels in drunk driving cases) and overgrown military, we will continue to have too much police misconduct and soldier misconduct.

Of course there are good police and good soldiers, too. By shrinking the criminal justice system and military, we will have higher-quality police and soldiers being better trained, supervised, rated, and promoted. By shrinking the criminal justice system and military, we will move away from the systemic problems that enable and lead too many police and soldiers to stray from the just path, and we will move away from the excessive police state and militarized society in which we all live.

Police are here to serve the public, and not the other way around, even though we certainly owe due respect to police who are just, even though even the most honest and just police still are part of an overly unjust criminal justice system that repeatedly cages presumed-innocent criminal defendants pretrial, prosecutes for such crimes as marijuana that should not be crimes, and has a Fourth Amendment that has been riddled with Swiss-cheese holes by the appellate courts.

Everyone needs to shine the light on police abuse, and to encourage police who act justly and fairly. North Carolina’s Gina Tessener and her husband Hoyt Tessener (a fellow attendee of the Trial Lawyers College) recently spoke out about her drunk driving arrest that ended up not getting prosecuted (see their interview), after the police detained her apparently without any possible grounds other than suspicion of drunk driving, but continued to detain her to see a magistrate even after she blew a 0.0 on a breathalyzer machine. Whether or not the ongoing detention was discretionary under police policy or law, the Constitution does not support continuing to detain a suspect when probable cause is lacking.

The Tesseners’ allegations are many. I will focus on what seems beyond dispute, which is that the police continued to detain Ms. Tessener to see a magistrate (as confirmed by this video footage), even after she blew a 0.0 on the breathalyzer machine and when there did not seem to be any other grounds for detaining her further; and that the police engaged in the following texting unbecoming of Trooper Smith):

Arresting Trooper Edward Wyrick texting Trooper Andrew Smith: Her husband is a trial lawyer and told me I should be ashamed of myself.

Trooper Smith: Hahahaha f— her and f— him. She say how much she’d had to drink?

Trooper Wyrick: She said 1 drink at 7pm.

Trooper Smith: F— her.

Trooper Wyrick’s above texts do not necessarily reveal wrongdoing. Trooper Smith’s "hahahaha" response and f-bombs do not engender confidence in him as a police officer, particularly where he throws in a "f— her" jab at Ms. Tessener, who is not revealed in the texts to have gotten on anybody’s case. To what extent does the First Amendment enter the equation about Trooper Smith’s texts? To what extent does and should he lose First Amendment rights while on the job as a government employee? That is a discussion for an entirely separate blog entry, but needs to be borne in mind.

Hoyt Tessener’s complaint letter to North Carolina’s governor alleges, among other things, that Trooper Wyrick yelled at his wife after her arrest, and that the magistrate lectured her — presumed innocent by law and finally released by the magistrate — and asked her to admit she had done wrong, which she refused to do. Here is a report of the state police investigation into the Tessener matter.

The state police cleared Trooper Wyrick after an initial administrative suspension, but suspended Trooper Smith, saying Trooper Smith acted "unprofessional and in violation of Patrol policy."

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