Saturday, October 29, 2011

Fear Itself

As the Chronicle's Lisa Falkenberg observed in her column, "If Lykos and her prosecutors have done nothing wrong, there's no reason why a runaway grand jury should have them running scared."
That's from near the end of an editorial in yesterday's Houston Chronicle about the runaway grand jury in Harris County that's busy investigating the local DA's office.  I've kept in the link to Lisa Falkenberg because it doesn't actually link to the column the Chronicle's editorial board is quoting.  In fact, as best I can tell, the Chronicle's quote isn't a quote at all.  What Falkenberg wrote, in what I think must be the column to which they refer, is this.
If she trusts this grand jury to judge the facts in other cases, why not trust them to judge her, and HPD?
Or perhaps there's a reason this runaway jury has Lykos and her prosecutors running scared.
Which is much the same theme, but not the same words (or at least not all of them, and not in the same order) as the ones the editorial board put in quotes.
Despite appearances in the early going, this isn't really going to be a post about language or sloppy reportage or messy copy editing/cite checking or even why it is that if you can't trust the newspaper to quote itself accurately you might plausibly wonder why you should trust anything else it puts out.  (Mark Bennett made a similar point about Pat Lykos's office a few days ago, but that's not my point, either.)  No, this is a post about trust and fear and grand juries and prosecutors and why Lisa Falkenberg (and the Chronicle editorial, for that matter) are naively wrong.  And so was the second President Roosevelt.
You know, the one who said
We have nothing to fear but fear itself.
Because, in fact, there's a whole lot to fear.  And I'm not talking about terrorists or nuclear proliferation or overpopulation or an economic meltdown or the lack of health insurance or the drunk driver in the next lane on the interstate.  I'm talking about fear of cops and prosecutors and grand juries (and courts and all legal process, for that matter) even if you've done nothing wrong.
Because they're ready to bite you on the ass.
Just ask some of the factually innocent folks who've been convicted of crimes.  (Forget legal exoneration here.  I'm talking about the people who didn't do it - even sometimes when the "it" they didn't do didn't happen.)  The ones who were once on death row or just serving long terms in prison.  The ones who pay the traffic ticket they didn't deserve because it's easier and cheaper than finding a lawyer and fighting it.  The ones who entered a plea in exchange for time served regardless of guilt because they couldn't afford bond and needed to get out of jail.  The ones who got fucked by bad lawyers or dishonest prosecutors or cops or just by really bad luck.
And then there are the ones who got caught up in what nobody could have expected to be a crime but damned if some overzealous prosecutor didn't find a way.  (See Harvey Silverglate's Three Felonies a Day: How the Feds Target the Innocent, which isn't as good as it should be and doesn't make the point quite as clearly as the title suggests but certainly points to the problem.)
Yes, you can be charged with crimes, even convicted of them, if you're innocent.  Hell you can be shot by the cops (and no, those aren't the only examples) just because. 
And yet we maintain this fantasy that somehow, someway, innocence is enough.  It isn't.  Not even close.
It's not enough to prevent criminal charges.  It's not enough to prevent criminal convictions.  It's not enough to prevent time in prison.  It's not enough to prevent executions (just ask Cameron Todd Willingham).  And, sadly, it's not enough to prevent being shot and killed by a rogue cop.
And yet there's this myth embraced by Ms. Falkenberg and by the Chronicle.  If you have nothing to hide, you're secure.  There's nothing to fear but fear itself.
And so:
  • Of course I'll come down to the station and answer your questions.  I have nothing to hide.
  • Of course you can search my car.  I have nothing to hide.
  • Of course I don't need a lawyer.  I have nothing to hide.
Which as any half-smart criminal defense lawyer can tell you is simply (and I'm putting this in boldface for a reason) wrong.
It may be true that you have really have nothing to hide.  
It's still not true that you should go to the station (or sit at your kitchen table, for that matter) and answer questions.  It's still not true that you should consent to the search of your car.  It's still not true that you don't need a lawyer.
What's true is that once they start looking at you, you're in trouble.  Maybe you get out of it unscathed.  Maybe not.
And the "not" happens more often than we like to think.
Let me put this as simply as possible.
You don't trust the government to do much of anything right, but you trust it not to pursue criminal charges against innocent people?  You're living in a fool's paradise.
I don't know whether Pat Lykos and her office have violated any laws.  I don't know whether the grand jury in Harris County will end up bringing indictments against anyone.  I do know that to say she and her minions have no reason to be scared if they didn't do anything wrong is to be grossly naive.
Lykos and her minions know that, of course.  The Chronicle should know it, too.  So should you.

1 comment:

  1. I could not agree with you more. Once you fall under the radar of the police or prosecutors, their goal becomes figuring out a way to prosecute and jail you somehow. Every step of the way, they will all say their hands are tied, that they are just doing their jobs.

    I can't count how many cops have said to me that even if they wrongfully convict someone, there were surely other crimes committed by that person that went unpunished and for which their current false prosecution is compensation. "They're all guilty."

    We incarcerate more people as a percentage of our population than any society in human history. Anyone who doesn't think they can easily become a part of that trend is sorely mistaken. Being "innocent" has nothing to do with it, which people probably naively mean in the sense of being equitably innocent in some common sense way.

    Well, sad to say, but the very concept of such innocence is foreign to the modern police officer or prosecutor. The funny thing is, our laws are so vague and numerous, we ARE all indeed technically guilty of something. Modern law enforcers are required NOT to exercise common sense and discretion in enforcing those amazingly broad and vague laws but to pursue any possibility of technical guilt. This pressure dismays and upsets some law enforcers, but their "hands are tied," a phrase they will repeat to you endlessly as you are processed for prison. The pressure comes from mandatory arrest/charges/minimums, political pressure from every direction, and the underlying drumbeat of the financial incentives of the prison industry and the prison guards unions.