Thoughts and Ramblings

Chinks in the Armor of Justice

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Chinks in the Armor of Justice; Lessons Learned from Breonna Taylor

Bad facts make bad law.  We don’t have many facts in this case, and that’s a big part of the problem.  Breonna’s death is a huge tragedy.  The question is, was it preventable?  For both the benefit of the police and of potential victims, are there legislative or procedural changes that can make situations like this preventable in the future?  There a lot of factors that weigh in on this question.  And it’s hard to make valid judgments without all of the facts.  Based on what we do know, here are the biggest factors that matter; here are the chinks of the armor of justice:

The WARRANT:

Transparency: Any served warrant should be part of the public record, available for anyone to view.  In this case, it’s possible that the warrant was deemed part of all the other evidence in this investigation, and therefore not released to public until all investigations in this matter are over.  This is standard police/court procedure.  The question is this lack of transparency ethical?  Maybe.

Validity: Who wrote and then signed the affidavit based on possibly questionable evidence?  How valid was their evidence that drugs, cash, or weapons would be in that home?  Was the warrant even really a no-knock warrant?  If so, what was the evidence that strong enough to necessitate the expediency of an all-hours no-knock warrant?  Should all-hours, no-knock warrants be legal in these situations? Should either the police officer who wrote the affidavit, or the judge who signed it, be held partially culpable for Breonna’s death?  This is partially what the federal investigation will be determining.

Followed in Good Faith:  Once a warrant is signed and issued, police officers are bound to follow it.  They are assuming in good faith that it is a legal, valid warrant.  So was the warrant followed exactly by the police officers this time? This is a big deal because this is where qualified immunity comes in.  Their actions in following the warrant in good faith are deemed legal based on the 4th Amendment.  However, if they didn’t obey all details of the warrant correctly, then the officers could be held liable.

Warrant details: Again, this is why transparency is so important.  A warrant will tell them specifically WHEN they can search (anytime, or specific time range), WHERE on the property, WHAT they’re allowed to search, and HOW they can search (no-knock or announce?)  This is how we (and the grand jury) can tell if the Police’s actions (based on the validity of their incident report) match up with what the warrant said they were legally allowed to do.

MORE POSSIBLE CHINKS:

In Uniform or Not: Were the police officers in uniform or plain clothes?  Even though this seems to be a big deal, it doesn’t make a difference legally. The question is, should it?

Knock vs. No-Knock: Did the police officers knock and announce, and just weren’t heard?  Or did they force entry without knocking?  This only makes a difference legally if their actions don’t match the specifications of the warrant.  And even if it wasn’t a “no-knock” warrant, there are still some exceptions that legally allow them to force entry (like danger to the area).

The Boyfriend: Breonna’s boyfriend was licensed to carry, and shot at who he believed were dangerous intruders.  Does he have that right?  Were his actions legal, even though he shot an officer in the leg?  Yes.  However, the boyfriend was still initially charged for his actions.  They were dropped, but only after huge public outcry.

Self Defense vs. Excessive Force: The police then started shooting back to defend themselves.  Do they have the legal right to defend themselves on someone else’s property which they forced themselves onto?  Yes.  Does it take 32 bullets (amongst 3 officers) to defend yourself?  Not sure.  We don’t know how many shots the boyfriend fired in proportion.  How many bullets does it take to be considered excessive, into the realm of attack instead of defense?  Each State and police department have their own policies and procedure delineating self-defense vs. excessive force.  Kentucky Statute 503.090 suggests that they are most likely justified in their actions in this case, especially because an officer was shot.

Duty to Render Aid: After the gun firing stopped, and Breonna was shot, no life saving aid was given.  Are there legal protocols in Kentucky for offering life-saving aid in shooting incidents like this?  If there is a duty to render aid, it would only be a local police policy, and the lack of aid would not be a criminal statute.  Is the lack of aid ethical, does this need to be legislated?  Maybe.

Body Cameras:  Police either weren’t wearing their body cameras (because they were in plain clothes?) or they didn’t have them turned on.  They violated their own police policy in doing so, but there are no criminal mandates as of yet, only in-house department discipline instead.

Incident Report:  The officers reported that they did not force their way into the apartment.  Witnesses and crime scene photographs show they did.  The officers listed Taylor’s injuries as “none.”  This could be classified as a Class A misdemeanor for falsely reporting an incident (519.040).  Perjury only applies if they claim these falsehoods in a sworn statement under oath.

Grand Jury:  Why a grand jury to begin with?  In Kentucky, all Felony charges go through a Grand Jury first.  Grand Jury is the charging process to determine whether there is enough evidence to justify going through the rest of the court process.  Are Grand Juries public?  No.  Will the transcripts be made public soon?  Not until the rest of the criminal court procedures are complete.  Most likely the evidence, interviews, transcripts, and warrant won’t be made public until all criminal court procedures are complete, including federal.  This is to protect potential jury members and witnesses from being biased from such public knowledge.

POSSIBLE CHARGES, Kentucky Revised Statutes:

What are the possible charges when someone’s actions result in another’s death?  And what may apply? (the definition of wanton = deliberate and unprovoked)

Murder (507.020): The requirement for this charge isn’t met because “intent to cause death” has to be proven.  The police officers weren’t going there purposefully wanting to kill anyone.  It might be said that the one officer “wantonly engages in conduct which creates a grave risk of death,” but again, since his bullets didn’t kill Breonna, this doesn’t apply either. (Class A Felony)

Attempted Murder (506.010): This applies if an officer’s bullets didn’t actually strike their target, but their actions/words show they had tried to kill.  Again, intent needs to be proven, so this charge doesn’t really apply because the officers weren’t purposefully trying to kill Breonna. (Class B Felony)

Manslaughter, 1st degree (507.030):  This is the intent to cause physical injury, resulting in death. Or the intent to cause death, but because of an extreme emotional disturbance. This again doesn’t apply because the two officers who shot Breonna didn’t have intent or extreme emotional disturbance.

Manslaughter, 2nd degree (507.040):  This is when someone wantonly causes the death of another person (i.e. reckless use of a motor vehicle, leaving a child in hot car, dispensing lethal drugs, etc.)  There could be arguments that this applies to the officer who fired the fatal shot, but would be nearly impossible to prove, especially given that he didn’t shoot first.

Reckless Homicide (507.050): This is when reckless actions causes death of another person.  Again, there could be arguments that the officer who fired the fatal shot, but only if it could be proven that he was reckless with the use of his firearm, and that doesn’t seem to apply. This can’t apply to either of the other officers because their bullets didn’t cause Breonna’s death.

Wanton Endangerment, 1st degree (508.060): This is when someone manifests extreme indifference to the value of human life, or who’s conduct creates a substantial danger of death or serious physical injury.  This carries the same penalty as reckless homicide (Class D Felony).  This is what Officer Hankison was charged with, not in behalf of Breonna, but for her three neighbors.  Why not Breonna?  Legal precedence says that he was legally justified to shoot into her apartment in self-defense.  Should law or police policies be changed to make a shooting like this not legally justified?  Maybe.

Wanton Endangerment, 2nd degree (508.070): This is when someone causes substantial danger of physical injury to another (this is only a Class A Misdemeanor).  Again, the claim of self-defense protects these officers from this charge.

Explaining the chinks in the armor of justice may help us know how to petition to our lawmakers and police departments for the specific change needed.  We’re hoping to funnel our destructive negative energy surrounding this case into a more productive energy to enact positive, and specific change.  We have one of the best justice systems in the world, but that doesn’t mean that there isn’t room for improvement.  The ultimate goal in any procedural or legislative changes would be to better protect citizens and police officers alike.  The wish is to prevent future heartache like this from happening again and providing more equitable justice for all.

I’M LISTENING

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For over a week now, I’ve been drafting a blog about systemic racism and how the events in Kenosha, Wisconsin epitomized our racial divide. With more pondering, I realized that I was addressing the wrong issue. People have stopped listening to each other on this topic. Opinions have already been made and set in stone. Besides, as a white male, my words would have little weight or bearing on racism. So, my blog radically changed gears toward another national epidemic.

Listening. Is it a lost art?  Have we forgotten how to listen? We hear, but do we listen? I’m talking about true active listening. Listening to understand, not just to respond. I know I am guilty of not practicing this vital skill enough. I’m guessing I’m not the only one. The rarity of this skill is perhaps more heightened with our new norm of social distancing.  How can we stay physically distant while connecting cognitively and emotionally? Can empathy and understanding exist in a world of isolation?

How often have we seen harsh words on social media or elsewhere lately that reveals the toxic symptoms of this lack of listening?  We build up verbal ammunition for defense or even attack to prove ourselves right.  Instead of taking offense, arguing, debating, or attacking. I choose to UNDERSTAND. I choose to SUPPORT. I choose to LOVE. I choose to LIFT.

I am a devout Christian. I believe in my savior Jesus Christ. He lives and loves each and every one of us. I know He sees us through lenses of love. He knows our strengths and weaknesses. His message is to lift where you stand, to love others no matter where they stand. Ours is not to judge others by their race, background, beliefs, or even their words or actions. Instead I can live my beliefs through love and service.

During our last virtual Sunday church service, the speaker focused on the Christ’s words from Luke 6:27-36:

27 But I say unto you which hear, Love your enemies, do good to them which hate you,

28 Bless them that curse you, and pray for them which despitefully use you.

29 And unto him that smiteth thee on the one cheek offer also the other; and him that taketh away thy cloak forbid not to take thy coat also.

30 Give to every man that asketh of thee; and of him that taketh away thy goods ask them not again.

31 And as ye would that men should do to you, do ye also to them likewise.

32 For if ye love them which love you, what thank have ye? for sinners also love those that love them.

33 And if ye do good to them which do good to you, what thank have ye? for sinners also do even the same.

34 And if ye lend to them of whom ye hope to receive, what thank have ye? for sinners also lend to sinners, to receive as much again.

35 But love ye your enemies, and do good, and lend, hoping for nothing again; and your reward shall be great, and ye shall be the children of the Highest: for he is kind unto the unthankful and to the evil.

36 Be ye therefore merciful, as your Father also is merciful.

The speaker continued by asking us to self-evaluate the following three things which will improve the quality of our human connection on a level that supersedes politics, religion, even race or nationality.

  1. Vison.  Do we see others as God sees them? Or even as they see themselves? Do we give others the benefit of the doubt, or instinctively judge and criticize? This includes how we think about ourselves. We are often our own worst critic. Can we look past our differences and weaknesses and focus our vision on each other’s similarities and strengths instead?
  2. Embrace Diversity.  Do I physically or emotionally distance from those who have different cultural or ideological views than I do? Am I comfortable connecting with those with different backgrounds, beliefs, and opinions than me?  Am I ok to agree to disagree and still have meaningful relationships? Instead of the old adage, “hate the sin, love the sinner,” we can say “love the sinner, invite them to dinner!” After all, this is exactly what Christ did. By including more into our social circles, we invite more opportunities to listen, understand, and practice empathy.
  3. Don’t Look Beyond the Mark.  Do we look toward the final end result, but forget the steps between? It is important to society and individuals that rules apply to all individuals. In our quest for equity, we can check our own attitudes, and make sure we don’t live as if we know better than others. The rules apply to all of us, but do I live as if some rules don’t apply to me?  If so, maybe I can change my own mindset.

Most of us are good at social civilities and superficial kindness. That’s a great start! Now it’s time to delve deeper, for the sake of our whole country, but more importantly for the sake of each individual. We can focus to see others in a different light. We can choose to embrace differences instead of attacking them. We can choose to empathize with other’s individual struggles and heartaches. We can choose to listen and connect in a positive way. I invite you to join me in this challenge:

I choose to find someone who I might not normally associate with. Then I’ll find some way to improve their day. It begins with me. It begins with us.

The only thing necessary for the triumph of evil is that good men do nothing

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Saturday night I watched in horror as my beloved city of Reno was barraged with rioting, looting, burning, tagging, vandalizing, tear gas, rubber bullets, and rocks. In real time on social media, I witnessed the messages of shock, outrage, and extreme vehemence of this destruction by my fellow Renoites.  And I wondered, “Where was this virulent indignation when George Floyd (or so many others) died?” I was as guilty as my other white privileged friends.  I had intentionally let disturbing events from thousands of miles away be just a distant, hazy, impersonal piece of news, sterile and benign in my life. I had silently let evil triumph. NO MORE!

Here are my Thoughts:

  • What happened to George Floyd was murder. Not manslaughter.  Not something protected by qualified immunity! Murder. Plain and simple.
  • The violent and destructive actions of rioters and looters is also wrong! It’s criminal. It violates any rights bestowed in the 1st amendment.
  • Our feelings of grief, condemnation, and horror over the vandalism and destruction of property should NOT be MORE intense than what we feel towards murder. The purposeful loss of a living soul should create a much more visceral reaction within us than any purposeful loss of inanimate property. 
  • Just because one violent act hits our little Reno community directly, but a violent murder thousands of miles away doesn’t affect us directly, shouldn’t make one worse or more unjust than the other. 

My thoughts when I hear statements like these:

  • “Violence is not the answer.” Have we forgotten that our country’s origin was founded on peaceful protests turned violent against an oppressive government system resulting in unfairly distributed rights? How then can we help quell the violence?
    • We can step up and do our part to end the inequality and racism in our country.
    • We can vote for leaders who will lead and protect our most vulnerable.
    • We can teach our children tolerance and compassion by our words and actions. 
    • We can serve within our own communities.
    • We can seek to problem solve and compromise instead of seeking blame.  
    • We can listen to ALL and give a voice to ALL. 
  • “A few bad apples don’t represent ALL police officers.” As Martin Luther King, Jr boldly reminded us, “Injustice anywhere is a threat to justice everywhere” and “He who passively accepts evil is as much involved in it as he who helps to perpetrate it. He who accepts evil without protesting against it is really cooperating with it.” Eighteen previous excessive force complaints were filed against Officer Derek Chauvin. EIGHTEEN!  In a just system, he wouldn’t have been an employed law enforcement officer.  He wouldn’t have been given the means and opportunity to murder George Floyd in the first place.
  • “There is a better way.” Where were we when peaceful protests and difficult conversations were attempted? We laugh, minimize, criticize, or outright ignore peaceful attempts to protest racism in this country.  How far have we come in almost 30 years since Rodney King?  Are we progressing or falling pitifully backwards in our quest for equal treatment of all? And yet again, we are allowing fringe extremist rioters to hijack the purest voice of protest.  Not only have unfair rights been distributed to many in this country, but now these marginalized groups are being robbed from delivering their message of social change because of violent anarchists.  Where does it end? 

Despite this past week filled with atrocities, there is much to be encouraged by.

  • Courageous Conversation Friday evening, May 29th, a heartening Courageous Conversation took place online. UNR Psychology professor, Dr. DuPree, facilitated a discussion with our interm Reno Police Chief, Tom Robinson, and a local diversity expert, Tiffany Young, and our Washoe County Sherriff, Darin Balaam. This conversation was a great starting point for our community where empathy, understanding, and compassion was shared.  It was pointed out that we have an independent internal affairs department in City Hall for us to submit any abuse of power by local law enforcement. Regrettably, this conversation was not picked up by local news stations or given much publicity except by our City Council member, Devon Reese. More publicized conversations like this would do much to heal our community and build back trust.
  • Peaceful Protest The following day, Saturday, May 30th, our local Black Lives Matter organization marched in peaceful protest to show solidarity for and raise awareness of George Floyd and other similar plights. Once this protest was finished, the crowd was asked by its organizers to disperse and return to their homes.
  • A Heroic Voice of Reason Unfortunately, a fringe group broke off from the protest and went to the police station. As I watched the live feed, I was stunned to hear the anti-police chants, shocked the taunting towards officers to come fight, horrified as the Police Badge sign was ripped off the wall and stomped on, saddened by the graffiti being splayed across the sidewalk and walls, and disgusted by the flag being burned. And then it happened. A lone young woman could be heard over the crowd, calling everyone to stop the vandalism. She pulled people back to the original message of solidarity they were trying to convey. THAT YOUNG WOMAN IS A HERO!  Even though events of violent vandalism continued later, for this moment the mob was quelled by one lone voice of reason.
  • Appropriate Law Enforcement Response
    • Empathy and De-escalation. As their building was under assault, law enforcement did not strike out. They stood ready should things turn violent, but did not escalate an already volatile situation. Interm Police Chief Tom Robinson gave a statement wherein he showed an understanding of the anger and frustration that the group felt. He agreed that we need openness, communication and change. He displayed empathy for the fallen and frustrated. He explained that while some of the actions were illegal, “tonight is not the night to deal with that.” His words were an attempt to defuse and de-escalate.
    • Balancing Act to Protect and Serve. Shortly afterward, Reno City Hall was attacked and set on fire. Police had to respond at this point, as did Reno Fire Department, and later our Reno National Guard. At this point, law enforcement had to do the difficult balancing act between their objectives of protecting and serving once the defacing turned to destruction. I was encouraged by the press release of Sheriff Darin Balaam who acknowledged the balancing act. He clearly stated that his first priority is the health and safety of the county. He followed that up with a call to action and an urging for communication.
  • A New Day of Hope I have been further encouraged by the community response this morning. It is my continuing hope that this “moment” of darkness will bring more openness, communication, and collaboration. There are many resources to help educate and guide allies in this cause for justice and equality for all.  Here are two examples:
  • Our Moral Compass Many religious leaders have taught love, forgiveness, compassion, and tolerance.  No matter our stance on religion, compassionate spiritual teachings from sacred texts are universal to all humankind and point us in a moral direction. We as a nation can only heal when we honor and embrace our diversity while unifying our common humanity.
    • Buddhism
      • “Radiate boundless love towards the entire world — above, below, and across — unhindered, without ill will, without enmity.” (The Buddha, from the Metta Sutta)
      • “Hatred is never appeased by hatred in this world. By non-hatred alone is hatred appeased. This is a law eternal.” (The Buddha, from the Dhammapada)
    • Christianity
      • “Whatsoever ye would that men should do to you, do ye even so to them.” (Matthew 7:12)
      • “Charity suffereth long, and is kind.” (1 Corinthians 13:4)
    • Hinduism
      • “When a person responds to the joys and sorrows of others as if they were his own, he has attained the highest state of spiritual union.” (Bhagavad Gita 6.32)
      • “The person who is always involved in good deeds experiences incessant divine happiness.” (The Rig Veda)
    • Judaism
      • “Be the first to hold out the hand of peace.”  (Talmud, Sota)
      • “Who acts from love is greater than who acts from fear.” (Talmud, Sota)
    • Muslim
      • “The reward of goodness is nothing but goodness.” (Al Quran 55:61)
      • “And good and evil are not alike. Repel evil with that which is best. And lo, he between whom and thyself was enmity will become as though he were a warm friend.  But none is granted it save those who are steadfast; and none is granted it save those who possess a large share of good.” (Al Quran 41:35-36)
    • Taoism
      • “Simplicity, patience, compassion. These three are your greatest treasures.” (Lao Tzu, Tao Te Ching)
      • “Love is a decision – not an emotion!” (Lao Tzu, Tao Te Ching)

Crisis in Isolation: Deescalating Domestic Violence

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And just like that, most of us have shifted to a “work from home” self-quarantine society. This is unprecedented territory for many of us.

Some of us may handle this shift differently than others. Introverts who typically revel in quiet isolation will be content, right in their element.  Although other introverts, like my lovely wife, may now be trapped in a house full of family members 24/7. Extroverts may struggle without the daily social interactions which they thrive on.  Sports fans are grieving and have few positive outlets left to engage in. Many spouses will be together more than they have been since honeymoon days. We parents are now dealing with stir crazy kids full time.  And we’re all just trying to figure out how to live, learn, and work in a virtual world while living in our real world at home.

We may feel off kilter because of unfamiliar routines, our work life melding into our home life, and either a great increase or decrease of alone time (depending on your situation). All the while, uncertainty about our risk of illness looms over us. And unexpected financial situations from drastic job changes or unemployment can further heighten our stress and anxiety.  As these negative emotions increase, our defenses naturally go up. We can find ourselves more on edge and short of patience. This can add up to a large ticking time bomb just waiting for a spark.

So what can we do to put out the fuse?  If we feel ourselves losing control, or if a loved one is emotionally raw, what can we do?  In more mild situations, a great first step is to contact a local therapist for help.  They have insightful techniques to help us view our situation in healthy ways.

The Reno Gazette Journal[i] recently wrote an article in which they quoted a marriage and family counselor out of Valdeston, Georgia, Mark Webb. His advice during this time is threefold:

  1. Communication
  2. Patience
  3. Focusing on the long term

And I would add a fourth one:

  • Hope.

Effective communication begins with active listening (listening to understand rather than listening to respond). Focusing on connection can unite us and draw us together. We can love with our hearts, think with our brains, and hope with our souls.

Unfortunately, many situations escalate rapidly. Before the world started self-isolating, 1 in 3 women and 1 in 4 men had at some point been victims of violence by an intimate partner. Incidents of domestic violence are already increasing with so many of us sheltering in place. During this pandemic we may feel as if we are losing control, and we will search for ways to cope. Most will seek healthy activities like exercise, cleaning, writing, or art, but some will force their control on those around them in unhealthy or hostile ways.  If a situation at home becomes unsafe; if you fear for your emotional or physical safety, I plead with you to seek help from any of these resources below. 

Please call 911 if you’re in immediate danger.

Nevada 211 dial “211” or text zip code to: 898211

Crisis Support Services of Nevada 1-800-273-8255 or text to: 839863

NAMI Nevada crisis line: 1-775-470-5600

National Domestic Violence hotline 1-800-799-7233

Crisis Text Line text to: 741741

House of Ruth Maryland

Safe Horizons 1-800-621-4673

Suicide Lifeline 1-800-273-8255[ii]

If you feel on edge, and unable to control your own anger or actions, please seek help from the resources above immediately, before you put yourself or others in danger. You can overcome this tumultuous time! You can protect those you love by seeking help. However, even if you’ve already hurt someone you love, it’s not too late. There is still help out there for you and your family. Hopefully you seek help before things escalate, but if not, and legal charges are filed, I can help you navigate through that process too.   

In this time of isolation we can still unite against domestic violence. We check-in on friends and extended family.  We can keep an eye on our neighbors. We can protect our own family from ourselves or our spouse by reaching out for help before tensions escalate. Together we can make a difference in the lives of those around us. 

[i] Love in the time of coronavirus: Couples at home find friction instead of sparks, John D’Anna, Arizona Republic. Reno Gazette Journal 3/19/2020.

[ii] Home isolation is fertile ground for domestic abuse, Alia E. Dastagir, USA Today, 3/19/2020

How Does Intoxication Effect Consent?

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I’ve been thinking about consent for quite some time. I want to start by saying I completely agree with the 10 state jurisdictions who have put into law that voluntary intoxication leads to an inability to consent to sex. A person who, for whatever reason, would be unable to stand before a judge and enter a plea, is not in a position to make a decision as important and potentially life altering as sexual activity. This seems a logical sentiment that justly protects the rights of all involved.

My question really comes about, not in terms of consent to sexual activity, but other forms of consent. I sat in my office, watching video of a client who was obviously intoxicated. During the night he had been provided bottle service and had become increasingly intoxicated as the night wore on. He was being accused of a serious crime and was in the holding area of a night club. As he sat there, he professed apologies to any who would listen. He tried to explain his thought process. Finally, a sheriff’s deputy came in with him and read to him his Miranda  rights. Of course, wanting to clear his name he started explaining his story. He was vague and somewhat evasive with his story, so the deputy continued to prod and pull before finally just asking “you did X, Y, and Z, didn’t you.” My client hung his head and said “yes.”

Unfortunately, this is not an uncommon occurrence. While a subject is high, drunk (or both), officers will question them about their behavior, often even providing the parameters and terms they need for arrest. This same intoxicated individual would not have the legal cognitive capacity to enter a plea in court nor to consent to sex, but based on common practices, he is allowed to voluntarily waive their Fourth, Fifth, and Sixth Amendment rights. If a person is not legally sober enough to make important decisions about sexual conduct, why are they held legally liable to make decisions that could very well affect their liberty or possibly even their life? Why do we hold individuals accountable to two very different expectations of critical thinking when in the same intoxicated state?

This is not the first time this question has been raised, nor will it be the last. For police officers, priorities most often work toward closing cases. If an officer is called out on a specific charge, they will be looking for evidence to substantiate that charge. They may not automatically weigh the evidence before them and then decide on the case. For example, if they get a call about a suspected DUI case, they are going to be looking at all the clues that support a DUI prognosis, rather than ask the individual if their eyes are red from crying all night. They will just assume that red eyes equal intoxication. To this end, it is in the individual’s best interest to get a statement from all involved parties while limiting themselves in what they say.

As an American Citizen:

WE HAVE THE RIGHT TO KEEP OUR MOUTH SHUT!

WE HAVE THE RIGHT TO HAVE A LAWYER PRESENT FOR QUESTIONING! (Though not for field sobriety tests or evidentiary tests.)

WE HAVE THE RIGHT TO MAKE THE POLICE GET A WARRANT TO SEARCH OUR CAR OR SEIZE OUR BLOOD!

WE HAVE THE RIGHT TO REFUSE TO DO FIELD SOBRIETY TESTS OR EVIDENTIARY TESTS. (There may be some consequences to deal with though).

WE HAVE THE RIGHT TO SHUT UP!

When we know our rights, especially when it comes to legal consent, we will be better advocates for ourselves and others. And unless the law changes the legality of verbal statements and evidence obtained while an individual is intoxicated, the best policy is to consult an attorney before anything is said.

I am happy to advocate for your rights.

To Prosecute is Human, To Defend Divine

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“How can you defend someone who is guilty?”

In law school, this was a question that I deeply pondered. Even though I was passionate about pursuing criminal law, I wondered if I could ever feel ethically confident defending a client who clearly had broken the law. As a young, naïve law student, I didn’t think I could ever be a defense attorney. I could not imagine defending those I knew were guilty. So, I became a Deputy District Attorney for Washoe County instead, and loved being on that side of justice for eight years.

In law school, we learned in our sterile classroom environments that “this noble profession is about finding justice through the adversarial process.” In practice, it is not always like that. The stereotypical reputation that lawyers have from television, movies, countless jokes, or even personal anecdotes is not favorable. Our profession is often seen as full of hucksters who look for loopholes, or worse yet corrupt to their core. As I worked as a prosecutor, I found this stereotype to be far from the truth. There will always be a few who are not honest with the facts or are looking to manipulate the system to avoid consequences, but I’ve found these to be the exceptions. Most attorneys I have worked with, in and out of court, simply seek the best deal for their clients while also trying to get them the assistance they need to overcome things like addiction or other struggles.

My time with the Washoe County District Attorney’s office helped me fully recognize the important need for each individual’s rights to be protected throughout the legal process, whether or not they were guilty. I watched as the members of the defense bar defended the rights of their clients without necessarily defending their actions. As I watched this from the eyes of a prosecutor, I gained a respect for the work that defense attorneys did and the methods most used.

A big turning point in solidifying my personal philosophy in defending guilty individuals, was an article entitled “Dialogue Between a Prosecutor and Defense Attorney” in the Clark Memorandum, a magazine put out by the J. Rueben Clark law school at Brigham Young University. This article highlighted a one-hour discussion between United States Attorney, District of Utah Paul M. Warner and Ronald J. Yengich, a prominent defense attorney in Utah. The words of Mr. Warner resonated with me, explaining all the many reasons he loved being a prosecutor, many of the same reasons I loved being a prosecutor. But even more important were these powerful words of Mr. Yengich:

“I have a statement in my office: ‘To prosecute is human, to defend is divine.’ I believe in my heart of hearts that I will be accused before the great white throne and Christ will be my advocate, and he will certainly be defending a guilty client. I know that about myself. I am a defense attorney because I know all of the errors I have committed in my life and the luck that I have to be standing in front of you honorable people after a life that has been full of mistakes and errors that could have put me in trouble.” The imagery of these words have vividly stuck with me all these years since.  This philosophy has become one of the brightest guiding lights in my career.

A big turning point in solidifying my personal philosophy in defending guilty individuals, was an article entitled “Dialogue Between a Prosecutor and Defense Attorney” in the Clark Memorandum, a magazine put out by the J. Rueben Clark law school at Brigham Young University. This article highlighted a one-hour discussion the 2005 Orrin G. Hatch Distinguished Trial Lawyer Conference between United States Attorney, District of Utah Paul M. Warner and Ronald J. Yengich, a prominent defense attorney in Utah. The words of Mr. Warner resonated with me, explaining all the many reasons he loved being a prosecutor, many of the same reasons I loved being a prosecutor. But even more important were these powerful words of Mr. Yengich:

“I have a statement in my office: ‘To prosecute is human, to defend is divine.’ I believe in my heart of hearts that I will be accused before the great white throne and Christ will be my advocate, and he will certainly be defending a guilty client. I know that about myself. I am a defense attorney because I know all of the errors I have committed in my life and the luck that I have to be standing in front of you honorable people after a life that has been full of mistakes and errors that could have put me in trouble.” The imagery of these words have vividly stuck with me all these years since.  This philosophy has become one of the brightest guiding lights in my career.

All of us are guilty. We’ve all made mistakes. Some are just more serious than others. My goal is to provide the assistance and protection that each of my clients deserve, despite their guilt. I will forever protect my client’s rights, but I cannot defend their actions.  I defend the rights of the guilty because that is what is right and just.

I strive to live by what Mr. Yengich calls “The Defense Attorney’s Oath” (quoted from Walt Whitman):

“This is what you shall do: Love the earth and the sun and the animals. Despise riches. Give alms to everyone that asks. Stand up for the stupid and the crazy. Devote your income and labor to others. Hate tyrants. Have patience and indulgence toward the people. Take off your hat to nothing known or unknown or to any man or any number of men. Go freely with powerful uneducated persons and the young and mothers of families. Reexamine all that you have been told at school or in church or in any book and dismiss whatever insults your soul.”

Justice v. Compassion

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As an immigration and criminal attorney in Nevada, I am bound to the laws of our land. I love and respect our country’s constitution.  While upholding these precepts I hold dear, I find I am also able to show compassion for those clients I serve. I do this by protecting their rights that our great country affords them.  I do this by treating them with the respect that all human beings deserve. I do this by seeking fair and equitable justice as their legal advocate. I find this compassion is as equally important as the letter of the law.  As I reflect my personal philosophies, I can’t help but wonder at the direction our country’s legal system is heading. Are we abandoning compassion for justice and order? Is there indeed room for both? There have been several recent events that I’ve been pondering lately.

On April 11, 2017 Attorney General Jeff Sessions issued a Memorandum for all federal prosecutors. He urged federal prosecutors to “focus on criminal cases that will further reduce illegality.” Calling for “consistent and vigorous enforcement” of key immigration laws. The laws he truly focused on were 8 U.S.C. § 1324 “bringing in and harboring certain aliens” and related offenses. Priority was to be given to section 1327 “aiding or assisting criminal aliens to enter,” and section 1328 “importation of aliens for immoral purposes.” I promote measures that in good conscience dissuade illegal activities, but question extreme implementations of such measures.

In a recent NPR article by Lorne Matalon, three current criminal immigration case studies were examined. The first, Scott Warren, a college geography instructor and volunteer with a group called No Mas Muertes (No More Deaths) was arrested and is facing three felony charges including conspiracy to transport and harbor migrants. No Mas Muertes leaves jugs of water in the desert along migrant trails to help prevent dehydration and exposure, leading causes of death among migrants in the Arizona border deserts. Warren, from Ajo, Arizona was allegedly seen talking with two migrants who sheltered in Ajo. Warren denies any participation in sheltering plans, and counters that his First Amendment religious freedom is being violated.  He asserts that the government has turned his spiritual belief (of assisting those in distress) into a criminal act. 

In the second example, an elected city and county attorney from Marfa, Texas, Teresa Todd, is under investigation for human smuggling because she stopped to help three ailing migrants in February 2019. Todd noted that one young man was pleading for aid, explaining that his sister, 18 year old Esmeralda, was in trouble. Todd sheltered the migrants in her car, as she tried to contact a friend, a legal counsel for the local Border Patrol. Before Todd reached her friend, a sheriff’s deputy arrived and called the Border Patrol. Todd was soon being read her Miranda warnings. Eight days later a Department of Homeland Security (DHS) investigator served a search warrant for her cellphone at Todd’s office. She was told that her phone would be returned in a matter of hours. The sheriff of Presidio County, Danny Dominguez stated that anyone with undocumented migrants in their car risks arrest, even if the vehicle is not moving. Todd’s phone was held for 53 days before finally being returned. Esmeralda was told by doctors that she was on the brink of death by the time she got to the hospital. 

Finally is Ana Adlersteina.  She is a U.S. citizen and volunteer at a Mexican migrant shelter. Adlerstein wanted to observe the process of seeking asylum, so she decided to accompany an asylum seeker from Sonora, Mexico to the border crossing at Lukeville, Arizona to experience the process. Instead, Adlerstein was accused of human smuggling and detained at the border for several hours. The border official had been previously told that a U.S. citizen would be accompanying an asylum seeker that day. Current law allows for a migrant to request asylum once they step onto U.S. soil.

Thus far, only Warren is facing criminal charges, however, Adlerstein has received subsequent calls from DHS investigators and Todd is still waiting to find out if she will be indicted for human smuggling. Their lives are in the balance as I write this, at the mercy of our ever evolving justice system.

I am a Christian, a member of the Church of Jesus Christ of Latter Day Saints. I often find myself reconciling between my Christian faith and my legal logic. I tell my clients before they hire me that I will protect their rights, but not defend their actions. As I read this NPR article, I was reminded of the biblical story of the “Good Samaritan.” Sometimes we forget that those human beings most affected by the letter of the law still deserve human decency and dignity. Are we forgetting that most of our ancestors were once immigrants, many coming into the country illegally themselves? Our Lady Liberty still proudly stands, declaring to the world “Give me your tired, your poor, your huddled masses yearning to breathe free.” I firmly believe in protecting the rule of law, but in many cases like those above, maybe compassion and common sense has a bigger precedence. If we continue to punish people for helping others, how will that influence the moral fabric of our society? And at what point does our basic humanity degrade completely?

Question: I was told I can’t be on my company’s auto policy because I have a ticket. Can I have the record sealed?

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In order to completely answer this question, first we need to clarify a few things. In Nevada, there are only three categories of criminal activity:

  1. Felonies
  2. Gross misdemeanors
  3. Misdemeanors

Many other states will have different levels, including infractions or citations. If you receive any kind of citation in Nevada, it is a misdemeanor citation. So, anytime you are “found guilty” through pleading (which includes just paying a ticket in the mail) or through trial, that is equivalent to being convicted of a misdemeanor.

To quote one of my favorite bands, “I hope you know this will go down on your permanent record.” But don’t get distressed, there are ways to fix it. The most thorough and permanent fix is a governor’s pardon. This works for all crimes and will completely wipe off the incident from your record, restoring any rights that may have been lost through conviction. Of course, for most misdemeanors, this is completely overkill and unnecessary. Although because a governor’s pardon restores ALL rights (whereas a sealing of record doesn’t), it can greatly benefit with domestic battery convictions which affects gun rights.) In Nevada, we have the ability to seal a record, in other states this is called expunging a record, the end result is essentially the same. After a record is sealed, and the notices are sent out, the record will be permanently altered in such a way that MOST people will not be able to see it.

It is important to note that there are certain crimes that may not be sealed, such as crimes against a child, sexual offenses, felony driving under the influence, etc. Also, cases must be sealed in order, newest to oldest, although courts are now allowing for multiple sealings at the same time.

Before a record can be sealed, ANY and ALL sentencing requirements (including paying fees, community service, prison, parole, probation, etc) must be completed FIRST. Then the time period can begin that’s required for sealing that record. In other words, when all ties to the court sentencing and penal system have been finished, then the time starts to countdown for eligibility of record sealing.

Different convictions have different waiting periods before their record can be sealed:

  • 10 YEARS:
    • Category A felonies (things like murder, trafficking, and kidnapping)
  • 7 YEARS:
    • Crimes of financial and fraudulent use of services
  • 5 YEARS:
    • Category B felonies (grand larceny, home invasion, etc.)
    • Category C felonies (possession of a stolen vehicle, elder abuse, child pornography, etc)
    • Category D felonies (involuntary manslaughter, forgery, perjury, etc)
  • 2 YEARS:
    • Category E felonies.
    • Gross misdemeanors (crimes that are punishable by up to 364 days in jail)
  • 1 YEAR:
    • Most misdemeanors (petty offenses that are punishable by no more than 6 months in jail)

If you were arrested and the case was either dismissed or you were acquitted at trial, you can immediately petition to have the arrest record sealed.

So, back to the initial question above, YES, you can have your traffic ticket sealed, if you’ve met the sentencing requirements, and waited the specified time period (usually 1 year for most simple traffic violations). If you decide to try the process yourself, there are online instructions to help.

While sealing records is not hard work, but it can be quite complicated and tedious work. It reminds me of doing taxes in that way. There is also the risk of completing the paperwork incorrectly. Just like taxes, there can be repercussions for making mistakes in the process. For sealing of records, a mistake could cost an extra year before the record is eligible to be sealed. So, just like with taxes, sometimes it may be worth hiring a company, or a trusted attorney to assist in these matters.

HAPPY INDEPENDENCE DAY!!!!!!!

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July 4th has always been one of my favorite holidays. I was always fascinated by the Revolutionary War. Concord and Lexington. Guerilla warfare. The ultimate underdog. Farmers, blacksmiths, normal people standing up against a corrupt government and fighting for rights. These freedoms and rights are the reason I love the law. The Constitution is an amazing document that has molded who I really am and why I enjoy working within the legal system. This is a day celebrated by an entire nation in one fashion or another, often times with food, alcohol, and explosives.

As a criminal defense attorney, the rights that were carved out during 1776 and the subsequent years are what my work life is all about. Currently I deal greatly with the Fourth and Fifth Amendments, specifically the Search and Seizure Clause and the Privilege against Self-Incrimination. As we celebrate this Summer, whether Independence Day, Hot August Nights, Rib Cook-Off, or Street Vibrations, let’s keep ourselves and Reno safe.  I know we have all  heard this before, but if planning to drink, don’t drive. Uber and Lyft are everywhere, install the application on your phone. Taxis roam the streets of Reno with regularity as well, Reno Taxi Cab (775)333-3333, Whittlesea Checker Taxi (775)322-2222, and Reno Lake Tahoe Transportation (775)813-0814 to name a few. Often times Reno provides free rides for certain holidays or special occasions. If you plan on drinking remember to give your keys to someone who isn’t. Also maybe let someone else light off those fireworks because alcohol and explosive entertainment aren’t the best mix either. 

Prevention is the best, however sometimes the best plans still go awry.  So if you find yourself pulled off to the side of the road with the red and blue lights flashing behind you, I have some advice for that as well. This is where the rights that our forefathers bought with their blood come into play. Your right to remain silent is exactly what you need to remember during these times. The police are not looking to “exonerate you” or “make sure you are safe to drive.”  They are investigating and collecting evidence. Keep your mouth closed. The field sobriety tests (divided attention and balance) that they will ask you to preform are not going to help you. And in spite of what they will tell you, those tests are not required and you will not lose your license. However, your driver’s license will be revoked if you refuse of a preliminary/evidentiary breath test or a blood test. Law enforcement cannot have you do the evidentiary tests without reasonable suspicion that you are driving under the influence of alcohol or drugs. That is a fight that belongs in the courtroom, not on the roadside. My job is to defend your rights. If you find yourself in trouble, call me and let me assist you through troubled times like these.

I wish us all an enjoyable and safe summer! Happy Fourth!