Case Law 4 Cops Blog

Many are shocked at the verdict of the Casey Anthony case. Not guilty on any crime for the death of her daughter. I kept up with the case and I was convinced she was guilty of murdering her daughter. Whether we agree or disagree with the verdict, it was rendered by her peers. The jurors were not convinced beyond a reasonable doubt of her guilt. Many on the jury may have felt she was guilty, but they were not convinced she was guilty by the evidence. The genius of our justice system is that the government cannot punish her, the judge cannot punish her, and the prosecutors cannot punish her. Only the 12 jurors had the power to hold Casey accountable for her actions. None of these citizens had any vested interest in the outcome of the trial. They listened to the evidence for weeks and rendered their verdict. They did their solemn duty and justice was done.

Out of control activist judges like Jose Longoria in Corpus Christi have no business ruling on cases. Judges service the people. They rule on laws enacted by legislatures who answer to the people that elect them. Judges, however, too many times, use their positions to usurp authority from the legislatures and people. They take it upon themselves to dictate to the people. In this case Judge Longoria stated, “You don’t spank children today. In the old days, maybe we got spanked, but there was a different quarrel. You don’t spank children.” Rosalina Gonzales pled guilty to Injury to a Child for spanking a 2 years old leaving red marks.

The current law in Texas reads: Sec. 9.61. PARENT-CHILD. (a) The use of force, but not deadly force, against a child younger than 18 years is justified:
(1) if the actor is the child’s parent or stepparent or is acting in loco parentis to the child; and
(2) when and to the degree the actor reasonably believes the force is necessary to discipline the child or to safeguard or promote his welfare.
(b) For purposes of this section, “in loco parentis” includes grandparent and guardian, any person acting by, through, or under the direction of a court with jurisdiction over the child, and anyone who has express or implied consent of the parent or parents.

The law clearly states that a parent can spank a child for discipline. Just because Activist Judge Longoria does not like the law, it is the Texas Legislature’s responsibility to change it, not his. And, as far as I know, higher courts of authority over this court have not ruled that Sec. 9.61 of the Texas Penal Codes covering spanking is unconstitutional. I hope he is removed from the bench before he does more harm to the true rule of law.

Marijuana may have some possible legitimate medical benefits. Marijuana seems to provide some aid to cancer patients in helping curb nausea and increase appetite. It also may relieve some of the symptoms of glaucoma. The benefits, however, are not significant enough to justify the legalization of marijuana. There are many legal prescription drugs that have the same effect as marijuana to help cancer patients. Many of these drugs actually do a much better job than marijuana. The same holds true for glaucoma. There are studies that claim that marijuana helps reduce the intraocular pressure of glaucoma sufferers. The truth is that a person would have to smoke marijuana almost continuously to have any effect. There are legal drugs that are far more effective and have no long term risks that come with marijuana.

Legalized marijuana with its possible health benefits does have a very negative effect on the enforcement efforts by police. As it stands with illegal marijuana, police do have an easier time enforcing the marijuana laws. The odor of marijuana gives the officer probable cause to search a person or vehicle. The odor also will give the officer probable cause to obtain a search warrant for a home or business. Legalizing marijuana changes this dynamic. If marijuana is legalized, the enforcement effect will be to change the odor from being probable cause to reasonable suspicion. The legalizing of marijuana will also greatly increase its use publically, making the odor more pervasive. Medical marijuana is also protected by the rules governing the privacy of medical records from law enforcement inquiries. If a police officer smells marijuana in a public place, and he locates someone smoking it, the officer may face legal challenges for compelling the person to reveal proof that he has a prescription for the marijuana. The current laws will curtail the officer from receiving confirmation from the prescribing physician. If the user refuses to answer any of the officer’s questions, which is his right, the officer will probably not be able to arrest because he can’t disprove the user’s possession of a prescription. In lies the insidious problem with legalizing marijuana. It is an abused drug. It is a social drug. It is often used to temper the effects of other abused drugs. It is a huge cash crop for illegal drug dealers and drug cartels. Making this change in the drug laws and allowing medical marijuana makes the enforcement of the illegal use of marijuana far more difficult. It also encourages the use of marijuana exponentially.

The one aspect that many may not have thought of involves police drug dogs. How will this change affect them? The purpose of a drug dog is to develop probable cause to search, primarily vehicles. If the odor of marijuana is no longer considered probable cause, but only reasonable suspicion, the drug dogs will have to be trained to not detect the odor of marijuana. It would be very difficult if not impossible to train a drug dog to alert differently on the odor of marijuana as opposed to the odor of other drugs. No wonder drug dealers and drug cartels are the biggest advocates of the push for the legalization of marijuana.

MICHIGAN v. BRYANT (No. 09-150, 2011). The US Supreme Court reviewed this case and the opinion was given by Justice Sotomayor. The case involves the questioning of a gunshot victim by police. The victim was dying and did later succumb to his wounds. The victim named his shooter and the location of the incident (he had driven from the crime scene and was found close by).

Police officers have long known that a person’s dying declaration is admissible in court as an exception to the hearsay rule. What makes this case unusual is that it centers on an error of the prosecutor in the case. The prosecutor laid the grounds for excited utterance exception to the hearsay rule and not the grounds for a dying declaration exception. The trial court allowed the statements under the excited utterance. The Supreme Court of Michigan held that the admittance of the statements under this exception was in error and remanded the case back for retrial.

The US Supreme Court granted certiorari. The Court proceeded to intellectually justify the admission of the statements outside the dying declaration exception, from which they are barred from considering in this case. The Court held that there are two prongs to the admissibility of statements to be considered. If the primary purpose is “testimonial” then the statement is subject to cross-examination under the Confrontation Clause of the Sixth Amendment. If the primary purpose is “to assist police in an ongoing emergency” then the statement is admissible without confrontation. The trial court will have to weigh the totality of the facts in the case to determine which category the statements fall in. The challenge for the trial court will be the weighing of the facts when the police often times are both deliberately trying to elicit statements about a past crime (testimonial) while simultaneously gathering information about an ongoing emergency.

The initial impression of this case for law enforcement has been an easing of the admissibility of statements in criminal cases. I, however, believe that the long term effects of this case will be minimal on law enforcement. This case was crafted to prevent the loss of the dying declaration of a victim due to the procedural error of the prosecutor. The trial courts will see it for what it is. These courts will use their discretion to require the cross-examination of anyone making statements to police in an emergency if they are available (i.e. not dead).

I admit that in the not too distant past, there was an institutional acceptance of bad, criminal, and unconstitutional behavior by police officers in numerous police agencies in this country. To this day, many police agencies have to deal with the civil distrust they created in the past within the communities they service. Fixing all the internal problems of the past may not be enough. It may take a generation or more, if ever to undo the damage. People don’t forget. They also pass down to their children what they learned and experienced. The children then perpetuate the feelings and beliefs against the police.

Police behavior toward the black community during the civil rights movement in the 1950’s and 1960’s if done correctly could have been a huge win for both the police and the black community. Instead, police agencies, in a very public way, massively destroyed any trust and well-being the black community would have for them by defending the white population’s desire to be separate and superior to the black community. It was straightforward, they only had to stand up, support, and defend the community’s Constitutional rights. Instead, many police agencies did everything they could to deny them of their rights. Could we blame the black community for being angry and bitter for what the police did? Unfortunately a result of this is a deep mistrust ingrained in virtually every member of the black community today. The damage done will take generations to fix. The community in many ways has isolated itself from the greater society in part as a reaction to past police treatment. This isolation has made it very close-knit, but it has also been internally destructive with high crime rates, drug use, poverty, etc. Because of the hyper-sensitivity of the black community, a hundred good things the police do for the community can easily be negated by one bad police action.

The animosity in the black community probably affects police departments’ ability to recruit qualified black applicants. I say qualified black applicants because it is crucial to have well trained and educated officers with non-criminal backgrounds regardless of race to prevent the re-occurrence of past wrongs. Lowering recruitment standards like they are doing in Dayton, Ohio to get more black officers into the police ranks is a profound mistake. The Department of Justice is pressuring Dayton to lower the standards to as low as scoring a 58 on the entrance exam. This is a failing grade. Police organizations need to be moving to higher and higher levels of professionalism. The improvement of standards over the last couple of decades is one aspect, albeit a very important one, in healing the wounds created by past wrongs. Better educated, better trained, better paid, and the more professional officers make better decisions. These standards also attract better candidates. There are numerous blacks that are more than capable in being police officers without lowering standards. The police agencies just need to do a better job attracting them to police work.

Stating the obvious, the primary function of police forces is to seek out, detect, and apprehend criminals. It is also obvious that the criminals will do just about anything to evade the police. It is easy to understand that criminals are in fear of being caught. The consequences of capture mean bond costs, jail costs, lawyer’s fees, fines, and the worst of all the loss of freedom through incarceration. Monetary loss can easily run into the thousands of dollars. This hardship is usually born by not just the criminal, but his/her family as well. Incarceration, even for a short time, could mean the loss of employment. It definitely means a loss of freedom. This further compounds the problem of paying all the accumulating costs. How is the person to support a family and pay all these debts? The group of people that probably has the greatest aversion to accepting responsibility is criminals. So, if they are not responsible for all this hardship, who is? The police of course are responsible. “The police officer caught me and made me have to pay all this money, causing my family to starve, and then I had to go to prison. The officer did not have to stop me. He did not have to charge me with my crimes. He could have cut me a break and let me go.” The criminal perceives the officer as ruining his life, causing anger, fear, and bitterness. The typical perverted view point of many criminals is that they erred in getting caught, not in committing the crime.

The criminal is the focal point of the anger and hatred felt toward police in his world. The criminal, however, infects others around him with this anger and hatred. The criminal’s family, friends, and criminal colleagues will incorporate these feelings and perpetuate them. The family is the strongest reflector of these feelings. The family could suffer the loss of income, food, clothes, even the home. Utilities could be cut off. The car could be repossessed. The parents mortgage their home to make bail and pay the criminal’s attorney. The criminal conviction and all the ramifications of it could make it very difficult to find a new home due to the stigma of the crime and/or ruined credit. Hardship hits the family from all directions. All of this was set in motion when the police officer arrested the criminal. The family develops just as much hatred as the criminal toward the police. All these feelings flow outward from the core toward friends and extended family members, who are sympathetic. They also will assume these feelings toward the police. Since criminals associate with other criminals, they feed off of each other through the sharing of hardships. This magnifies the hatred because it is not just the one criminal and his family, the same thing is happening to others. The police are the common enemy, and, therefore, the target of all the animosity from this expanded group.