Jul 28, 2009 Police Chief David Baker, meet prosecutor Davis Ruark and the litany of others
Image from National Institute of Standards & Technology.
My first five years in criminal defense was with the Maryland Public Defender’s Office. There, I was always on the opposite side of cops, except for the one time I defended an ex-cop. Among the many cops I have met on and off of my work time, I have interacted with police running from the delightful and caring to the reprehensible-acting, just like in the general human population.
Some cops automatically place a wall of armor between me and them, even when they know nothing about me. Others genuinely seem to think that cops, lawyers, judges, and prosecutors are all part of one legal establishment, and are ready to get along just fine with me. Some others probably think that the prosecution gets more strategic advantage or else no overall disadvantage to talk with defense lawyers, in part because the defense lawyers’ questions may reveal some of the lawyers’ strategy and pool of information.
By now, I have defended many ex-police officers in criminal court, and continue to do so. As with my clients who are or were in the military, I usually ask them if they wish to know my biases about the policing and military roles — so that this does not become an issue later on if they read some of my strong opinions on my blog — and then tell them how I believe I am successful in not having differences of political opinion, social opinion, or other opinion interfere with my effectiveness for my clients, and how I recognize the difference between policymakers and those who follow orders. After all, if I only chose to represent those I agree with, why would I defend those accused of murder, rape, and child pornography distribution if I was convinced they committed the alleged act?
In taking clients of all opinions and backgrounds, I move beyond the ideals of defending the Constitution and the practicality of running the business aspect of my law firm, and move closer to seeing each person as a human being, with us all interconnected, all fallible, and all subject to false accusations. The more I reach this destination, the better I am at persuading judges and jurors by them knowing that I have shed my preconceived notions about any of them.
Yes, although I would initially have defended Eichmann at his trial in Israel out of my opposition to the death penalty and probably would have struggled to find any humanity in him, even there I would have made every effort to humanize him to the tribunal, which is essential to do with all criminal defense clients. On a daily basis, I run into few like Eichmann, and most who have many common denominators with me, even though I often continue with many people to struggle to find such common denominators.
Every time a police officer or prosecutor tries to dehumanize my client as a lowlife not worthy of being believed, a loser or ne’er-do-well deserving of ridicule, or a threat to society, I want them to know Publius Terence‘s truism “Homo sum: humani nil a me alienum puto./I am human: nothing human is alien to me”. And, I want them to remember that each of my clients is presumed innocent unless and until proven guilty beyond a reasonable doubt, and that this rule of criminal law is sacrosanct.
In the foregoing context, the Alexandria, Virginia, police chief last Saturday got charged in neighboring Arlington with driving while intoxicated with a blood alcohol content of at least 0.15. Today’s Washington Times article reporting the alleged 0.19 blood alcohol content is here. This is the second time I have written about a top law enforcement official caught up in the unjust DWI laws that create a mockery of themselves by creating irrebutable culpability for as low as a mere 0.08 blood alcohol content, allowing unconstitutionally shortchanged evidentiary procedure from perpetually-fallible breathalizer machines, and (by caselaw) allowing the junk science of field sobriety tests. Last year I blogged about the DWI defense plight of Wicomico County, Maryland, chief prosecutor Davis Ruark here, here, and here.
Even though chief Baker apparently championed the DWI laws very publicly — whether a matter of personal conviction, perceived professional expediency, or both — he is as deserving of the protection of the law and legal procedure as any other criminal defendant.
Yesterday, Washington Times Melissa Giaimo called and spoke with me at length about the strengths and weaknesses of chief Baker’s defense, as well as the risks to his job from his current prosecution. I did my best to include a focus to the reporter about the high fallibility of breath testing equipment, and how blood testing is superior to breath testing when performed correctly. I informed her that mandatory minimum sentencing law for DWI in Virginia looks to the blood alcohol level at the time of testing, rather than accepting breathalyzer test results hook, line and sinker. I told her about chief Baker’s possible defenses in challenging at any trial whether it can be proven that he drove (seeing that this was apparently an accident with no police witnesses), challenging the field sobriety tests, and challenging the breath test results through such options as obtaining documentation on the performance of the equipment and hiring a breath test expert witness.
Here are the excerpts of our conversation that reporter Giaimo, her editors or both chose to print. I do not think I said that a challenge to the breath test was the chief defense, although it is a critical part of the defense:
“Jon Katz, a criminal defense attorney who has been defending clients accused of drunken driving in Virginia since 1998, said the chief defense in this type of case would be to take issue with the blood alcohol content reading.
“However, attacking the integrity of breathalyzers may be off limits for the chief of police.
“Chief Baker coordinated a sobriety checkpoint for Alexandria in June and alerted drivers in a press conference about the stiff penalties for drunken-driving convictions.
“‘From a public relations perspective,’ Mr. Katz said, ‘he may be damned if he does, damned it he doesn’t.'”
On a side note, at the end of our talk, I asked reporter Giaimo if her orientation at the Washington Times addressed concerns about independence from its ownership ties to the Unification Church, which the Washington Times recently characterized as follows: “The Washington Times was founded in 1982 by the Rev. Sun Myung Moon, founder of the Unification Church. The Times is operated by a media conglomerate called News World Corp. that is led by one of his sons.” My understanding from her is that her official orientation did not cover the Unification Church connection, but she feels the newspaper’s editorial function is “separate”, by which I take her to mean that she thinks the reporting function is separate from the editorial function. I did not push her to talk about how much this “separateness” spelled independent and accurate reporting; I have her phone number to do so later.
In any event, as with all DWI defendants, I wish chief Baker the best in his defense. Jon Katz