The More Things Change . . .

Friday, October 19th, 2012

In this week’s issue of Huffington, they’ve published an updated version of my March article on Terrance Huff, drug dog searches, and asset forfeiture.

If you aren’t familiar, Huffington is the tablet magazine spinoff of Huffington Post, focusing on long-form journalism. If you have a tablet computer, I’d encourage you to check it out. One of the main complaints I hear about the Huffington Post site is its clutter and busyness. The magazine is very clean. No ads, no extras.

Anyway, while researching my book I recently came across the passage below from The New York Times Magazine. It has almost on-the-nose relevance to the issues at play in Huff’s case.

See if you can guess when it was published. Answer in the comments.

 

 . . . a number of judges [have begun] questioning police testimony that relie[s] on such legal passwords as “in plain sight” and “furtive gesture.”

“The difficulty arises,” New York Criminal Court Judge Irving Younger wrote last year, “when one stands back from the particular case and looks at a series of cases. It then becomes apparent that policemen are committing perjury at least in some of them, and perhaps in nearly all of them . . . Spend a few hours in the New York City Criminal Court nowadays, and you will hear case after case in which a policeman testifies that the defendant dropped the narcotics on the ground, whereupon the policeman arrested him. Usually the very language of the testimony is identical from one case to another. This is known among defense lawyers and prosecutors as “dropsey” testimony. The judge has no reason to disbelieve it in any particular case, and of course the judge must decide each case on its own evidence, without regard to the testimony in other cases. Surely, though, not in every case was the defendant unlucky enough to drop his narcotics at the feed of the policeman. It follows that in in at least some of these cases the police are lying.”

In California, where many drug arrests are made during highway patrols, Judge Stanley Mosk of the State Supreme Court recently questioned the police reliance on furtive gestures in justifying arrests.

“The furtive gesture,” Mosk wrote, “has on occasion been little short of subterfuge in order to conduct a search on the basis of mere suspicion or intuition.” In so doing, he said, policy imply guilty significance to gestures that are no more illegal than reaching for one’s driver’s license or turning off a car radio.

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23 Responses to “The More Things Change . . .”

  1. #1 |  Radley Balko | 

    Answer: 1971.

  2. #2 |  David | 

    A judge publicly saying that police are definitely perjuring themselves? I’m guessing Never.

  3. #3 |  Yizmo Gizmo | 

    Huff’s case gets discussed at laws schools because it captures so many levels of deception:
    The bullshit “weaving” accusation…
    the bullshit “nervous passenger” to get the dog.
    The bullshit “alert” by the dog.
    The bullshit “I’m gonna detain your car, but you can go” claim by the thug/ cop.
    The bullshit “mj shake on the floor” excuse for the fruitless search after the “alert.”
    Not just bits and pieces of gov’t abuse but a protracted 1-man tour-de- force of assault on the Bill of Rights.

  4. #4 |  Jack Dempsey | 

    You are right, they more things change, the more people still get arrested for things that are not a crime, nor suspicious, but at least we know the cops are there to protect us.

    I feel safe.

  5. #5 |  Dante | 

    So, let’s review:

    Judges know the police are lying, thereby corrupting their testimony and the entire criminal justice process. Judges don’t care, because the criminal justice system has never been about justice.

    Protect & Serve (Themselves!)

  6. #6 |  SJE | 

    The judicial skepticism of the 60s and early 70s reached a peak when SCOTUS affirmed stronger constitutional rights. Then four things happened to get us where we are today (1) explosion of drugs and crime (actually fear of, more than actual problems) (2) gradual erosion of the SCOTUS case law by subsequent cases (3) a narrative that we didnt need to worry coz the SCOTUS had all these great rights affirmed in the 60s and 70s (4) the law enforcement industry got better organized.

  7. #7 |  Aresen | 

    Nailed it. (Living through the time helped.)

    OTOH, I wouldn’t have been surprised to have read it was 1871.

  8. #8 |  Steve Verdon | 

    Answer: 1971.

    In other words Judges really don’t give a fucking shit. Yeah the cops are lying but that son of a bitch must be guilty of something. In fact, now we can rely on dubious drug dog alerts as well so even more fun (and money, and power, and even prestige to the prosecutors and judges who use their records of being tough on crime to obtain higher office).

    Our criminal legal system is a fucking pathetic sick joke.

    Seriously Radley, why aren’t you some form of anarchist?

  9. #9 |  Burgers Allday | 

    Didn’t SHG do a post about this artie about a year ago.

  10. #10 |  Kratoklastes | 

    Irving Younger has been dead since 1988, and he retired from the Bench in 1974, so I guessed 1973. D’oh.

    Younger is famous for a very good set of CLE videos on advocacy, including “Ten Commandments of Cross-Examination” which is so good it’s still in use today (and you can’t get it on a torrent, dammit).

    @Steve Verdon – if Radley’s not some form of anarchist, it’s because he believes somewhere deep down, that there exists a system whereby all positions of power will not eventually fall into the hands of the unscrupulous and sociopathic. That somehow, if we only got things right, only the ‘right’ people would seek office. It would be nice if it was true, but then again it would be nice if we all had unicorns that shat winning lottery tickets.

    It’s a blind spot that many MANY people suffer from – Glenn Greenwald is another one, and even Matt Taibbi (although Taibbi is suitably jaundiced about all politics). These people (Radley included) are smart, have a deep-seated sense of social justice, and in all other ways are admirable as fuck.

    But they can’t slough off the last vestiges of naivete about the State. They seem to seriously think that there would be a descent into barbarity in its absence… and that this descent somehow would generate losses that exceed the 50%-plus that the State currently takes, when one counts

    [tax+i*(debt + NPSBR + unfunded liabilities)]/GDP

    where i is the interest rate on a bond with a duration of roughly seven years.

    And of course they do’t think it through to the very end… where the State, having raped the polity until the debt servicing level gets past a tipping point (historically, when interest payments exceed 15% of the tax take), takes the nation to war and obliterates hundreds of billions of man-hours worth of otherwise productive labour.

  11. #11 |  Lawman 9mm | 

    [quote] . . . a number of judges [have begun] questioning police testimony that relie[s] on such legal passwords as “in plain sight” and “furtive gesture.” [/quote]

    Not in Minnesota.

  12. #12 |  Cyto | 

    At first this was heartening. Then you let it sink in that “a number of judges have begun questioning” for forty years. In other words, that “number” ain’t growing. It ain’t gonna grow. It ain’t changing. And it ain’t gonna change.

  13. #13 |  Helmut O' Hooligan | 

    #8 Steve Verdon: “Seriously Radley, why aren’t you some form of anarchist?”

    First, let me say that I would not presume to speak for Radley. But even if he was an anarchist, think of what a loaded word that is. I’m not saying that the “bomb thrower” stereotype is correct (in most cases), but that is what a lot of people associate with the term anarchist. If Radley was an anarchist he still might not go around talking about it in order to avoid marginalization.

    I am–to borrow a phrase from Nock–a “philosophical anarchist.” More broadly, I would say I fit into the left-libertarian camp. I know that it can be hard to wrap your head around anarchist ideas. Just as Margaret Thatcher tried to tell people that there is no alternative to state capitalism (she and her ilk erroneously referred to it as “free market capitalism”), we all grow up thinking that there is no alternative to nation-states and other coercive government structures that surround us. Indeed, I still struggle with the issue, and I don’t begrudge people who decide to reject anarchism. The honest anarchist needs to admit that we don’t know how things would turn out.

    But I don’t think it is at all certain that life without a central state would be “nasty, brutish and short” as Hobbes warned. Those who believe anarchism is synonymous with chaos are oblivious to the fact that state structures very often promote chaos. This is the realization that led me to reject statism. But that doesn’t mean I wish for the immediate demise of the state. This scenario could indeed lead to chaos. If a new society emerges without states, I believe it will be after a gradual process. It will happen after people simply start ignoring the state and organize themselves voluntarily. Maybe we don’t have to have riots, assassinations and more war. Maybe we can just walk away.

  14. #14 |  AlgerHiss | 

    And he shall always be remembered as..

    ….Michael “Shake” Reichert.

  15. #15 |  Other Sean | 

    Quite apart from the moral and legal bankruptcy of it all…

    “Furtive gesture” is one of the most idiotic word combinations in the history of language. A “gesture” is something meant to be noticed. “Furtive” is how you describe something meant not to be noticed.

    It would be one thing if they used the combination ironically, as in “deafening whisper” or “silent scream”, but anyone who puts “furtive gesture” in a police report is an unlettered buffoon.

    All them fuckers should be sent to dictionary jail.

  16. #16 |  Kratoklastes | 

    #13 | Helmut O’ Hooligan, ‘gradualism’ is a non-starter: like those who advocated ‘gradual’ dismantling of slavery and gradual dismantling of Jim Crow, those who call for the gradual dismantling of the State are playing into the hands of the sociopaths who seek to rule.

    There has already been a successful society with completely voluntary political association (and ‘free market’ law with trade-able rights-enforcement… even for murder). The Icelandic Commonwealth developed successfully – and lasted for longer than the US has lasted to date. In fact it lasted right up until the time that the sociopath’s career-path-of-choice at the time (the Church) turned up and started laying down the (regionally monopolistic) law.

    Yes, it was pre-Industrial – but I don’t see that as making it LESS applicable to today: the Icelandic society of the time generated less surplus production relative to subsistence, and so competition for resources was harder then, than it would be in a genuinely-free modern industrial society. (People no longer steal hubcaps, eitehr).

    You’re right that the political-parasite class – and their media lackeys – have successfully perverted the meaning of ‘anarchy’ and ‘anarchist’, in the same way as their parasite forebears (the Church) perverted ‘heresy’ and ‘heretic’ (“heresy” means CHOICE: now we take it to be synonymous with “apostasy”).

    {As an aside, the child-molesting ‘priestly’ class also deliberately perverted “Apocalypse”, which means ‘revelation’ or ‘disclosure’, not “devastating end of the world where Jeebus shoots fire from his tongue, which is totally a sword”}.

    This is why my handle is ‘Kratoklastes’ – it means ‘one who seeks to break the power of the state’. It’s my view that arché (‘rank’) will always exist; differences in endowments, effort and luck will cause differences in outcomes and differences in one’s eventual place in the social order.

    POLITICAL power (kraté), on the other hand, does not need to exist – and only exists because the masses are too easily scared into compliance with the most opportunistic, parasitic and dishonest individuals in a society. I always refer to the parasite-political class as ‘individuals’ because I doubt that it is right to call them ‘people': I firmly believe that in time we will discover that they are effectively a different species – “homo cheneyensis” as I call them… in all outward respects identical to homo sapiens, but with a hard-wired lack of empathy that removes them from ‘humanity’ as we would define it.

  17. #17 |  albatross | 

    Helmut:

    I think the usual concern is that anarchism would soon collapse back into order, probably of the local-bossman type that would eventually evolve into something like feudalism. That might be internal or external, since an invading army under unified command is going to win almost every time against lots of local landowners/communities/etc. who can be split off and made into allies, or intimidated into neutrality, or wiped out piecemeal while the next targets are intimidated into inaction. Even in a straight up invasion, unified command is going to beat 50 independent forces negotiating over what to do, at least until the invading army gets so big that its internal administration and communications can’t scale up to the needed size.

  18. #18 |  Delta | 

    Typos you could fix in the quote:
    (1) “feed [feet] of the policeman”
    (2) “policy [police] imply guilty significance”

  19. #19 |  Helmut O' Hooligan | 

    Albatross:
    Agreed. I had–and still have–concerns like that. That is why I advocate an evolutionary movement away from statism. Though Kratoklastes would disagree, I think people will need time and education in order to prepare themselves for finally dismantling the last vestiges of the state. States have, after all, been with us for so long. Advocating some cataclysmic event to demolish the state is, in my opinion, begging for a “Lord of the Flies” type scenario. The movement for more transparency and accountability (sites like The Agitator, people filming police, etc) may be an early phase in which people become educated. A later phase may involve people developing viable alternatives to services provided by government and exploring different arrangements in workplaces and neighborhoods. Above all, people will have to accept more responsibility for their families and communities and reject the idea the coercive force and aggression must be a part of so many aspects of life.

  20. #20 |  Bruce Heerssen | 

    Actually, it was 1967.

    Irving Younger, “The Perjury Routine” The Nation, May 3, 1967, pages 596-597

  21. #21 |  CyniCAl | 

    #8 | Steve Verdon — “Seriously Radley, why aren’t you some form of anarchist?”

    Good question.

  22. #22 |  theCL Report: (D)ear Leade(R) | 

    […] The More Things Change … […]

  23. #23 |  Fascist Nation | 

    Missed it by one year (1972) and it was an almost complete guess based upon the use of the word “furtive,” though that was the popular word used around then when cops explaining why they shot someone.

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