Ask Popehat!

Law

Once again, it's time for an edition of Ask Popehat!  Ordinarily Derrick answers your questions, along with a guest writer, but this week Derrick is engaged in a high profile secret mission for the government, so he's asked Patrick to fill in. We're proud to welcome a recognized expert in law enforcement, Maricopa County, Arizona Sheriff Joe Arpaio, as this week's guest columnist. 

Welcome to ASK POPEHAT!

Dear Popehat, 

I am an editor for the Columbia Journalism Review, and have recently taken a prestigious position as lead writer of the Crime blog for the well-known web publication Slate, the Internet's leading journal of politics, business, and the arts. Recently I’ve received a lot of emails from readers asking what, exactly, you should do if you find yourself in a supposedly consensual conversation with an officer of the law. Apparently a lot of innocent, non-suspicious-looking people have been or expect to be pressured into gratuitous interactions with the police. Although I am not an attorney, I am a journalist, and my work has been endorsed by Professors of Constitutional Law. So I answered, quite sensibly, that you’re under no obligation to talk with a police officer in non-investigatory situations, and you shouldn’t be intimidated into feeling otherwise. (And to be clear, I’m not talking about those times when a cop stops you for speeding, or jaywalking, or stealing an old woman’s purse. In scenarios like these, when there’s reasonable suspicion that you’ve done something wrong, you’re obliged to cooperate, and refusal to comply may lead to your arrest.)

Recently some have complained that my considered journalistic advice, that those suspected of committing crimes should always cooperate the police, is wrong. I'll be the first to admit I'm not a lawyer, but I am a journalist, and so I feel that my opinion carries a great deal of weight in these matters. Was I wrong to advise readers under suspicion of crime that they should always cooperate with the police?
Justin Peters

New York, NY 

 

ASKPOPEHAT

Justin,

I'm afraid you were wrong, and rather badly so at that. You've advised your readers that when confronted by police, they should waive their constitutional rights against unreasonable search and seizure, to remain silent when questioned by the police, and to the assistance of counsel. These rights, among others, are enshrined in the Fourth, Fifth, and Sixth Amendments to the Constitution. You've probably heard of some of these rights on television, in the so-called "Miranda" warning that television policemen give to actors playing suspects on popular shows like "Adam Twelve" and "Cops!" Unfortunately, the police don't always give these warnings when they should, and even more unfortunately, many Americans are unaware that they have these rights. In your small way, you've contributed to this confusion and ignorance.

Fortunately, it's not too late to undo the damage, assuming that none of Slate's readers have followed your advice. If I were you, I'd ask my editors to take down the entire column, so that it's never found through a Google search, and replace it with an appreciation, hopefully written by a practicing criminal defense attorney rather than an academic, of great cases such as Mapp v. Ohio, Gideon v. Wainwright, and Escobedo v. Illinois.

Please do it soon, before the column you wrote sends someone to prison or worse.

Patrick

Sheriff Joe Arpaio

Justin,

I appreciate the burden you're under, writing week in and week out on the sordid subject of crime. I myself know a thing or two about crime, being the nemesis of all evil in Maricopa County. I could tell you some stories if ever you come to visit us.

But I am happy to inform you that your advice was entirely correct. I don't pretend to know much about the Constitution. I leave that to law professors and judges. But I do know that every citizen, guilty or innocent, has an absolute moral duty to cooperate at all times with the police as we seek to root out the evil of crime. If only more citizens shared your public-spirited values of honesty and openness when dealing with the authorities, our labors would be lessened, and our streets would be safer.

In fact, I'd go further. It is my personal belief that when a criminal suspect bares his soul to a law enforcement officer,  the burden on his soul is lightened as much as it would be by confession before a holy priest. After all, isn't the Sheriff's Department, from the interrogation room to the detention area, a Temple of Justice? We've all heard of the guilty man tortured by his silence, whose conscience is cleansed when he tells the truth.

In closing, I appreciate the good work you've done, Justin. I'd like you to go on spreading the good news that the policeman is here to help. And please let your readers know that in most cases, an officer of the law is a suspect's best friend. I can't tell you how many times the judges in our county have deviated a sentence downward on my word that the guilty defendant had a friendly and cooperative attitude during interrogation.

Your in Truth,

Sheriff Joe Arpaio,

Maricopa County, Arizona.

Next week, Clark and and special guest writer Paul Krugman will debate the pros and cons of eliminating the outdated constitutional requirement that revenue bills originate in the House of Representatives, at the request of reader B.

Last 5 posts by Patrick Non-White

24 Comments

21 Comments

  1. En Passant  •  Jan 22, 2013 @10:50 am

    I'm shocked, utterly shocked, that the honorable sheriff didn't also advise that if you have a puppy dog you should immediately offer it to any inquiring officer as a blood sacrifice. More and more officers are performing the sacrificial rites these days without even asking. It makes them feel safer.

  2. Dan  •  Jan 22, 2013 @11:12 am

    Waitwaitwait… I was told that, when you see an officer approaching, you should immediately turn out your pockets, genuflect, and avoid eye contact for fear of antagonizing. Apparently this is incorrect? So confused…

  3. Jennifer  •  Jan 22, 2013 @12:06 pm

    If it's any comfort… When I had to write a fictional character's arrest, I thought of Popehat's credo first. Being thorough, I checked out flexyourrights videos (love the phrase 'legal condom') and got related linked to an insightful guest lecture which goes into magnificent detail about why you should always "SHUTUPSHUTUPSHUTUP." (The cop's agreement makes it even better.)

    Does Slate pay well? Maybe I should see if they're looking for a new head crime writer. I'm no more qualified, but I can do basic Google searches and IANAL my work.

  4. NM  •  Jan 22, 2013 @12:07 pm

    Don't forget that if you don't cooperate, Joe will send a tank to your house (and run over your neighbor's car) and your dog is liable to get shot.

  5. suspicious  •  Jan 22, 2013 @1:22 pm

    I have my suspicions as to whether that was "really" Sheriff Arpaio … Sounded more like Sheriff El Pollo!

    I'm a fan of Arpaio and can appreciate his commitment to his views (such a "breath of fresh air" vis-a-vis the complacency and/or political correctness of middle-America's masses).

    Anyway, BLAH … I'm not 100% that was Joe :p

  6. mojo  •  Jan 22, 2013 @2:27 pm

    Me, I like to go with "Ah, piss off, coppers! Ya got nuttin' on me! Nyah!"

    Then I generally do the old "goin' for the gat" move, which never fails to impress.

  7. Joe Pullen  •  Jan 22, 2013 @4:37 pm

    I saw the words "We're proud to welcome a recognized expert in law enforcement, Maricopa County, Arizona Sheriff Joe Arpaio" and i just lost it – literally I think I might have just peed my pants.

  8. AlphaCentauri  •  Jan 22, 2013 @6:00 pm

    The problem is that in Arizona if you don't respond to the officer's questions, he'll think you don't speak English and assume you're an illegal alien.

  9. Rob  •  Jan 22, 2013 @7:50 pm

    Waitwaitwait… I was told that, when you see an officer approaching, you should immediately turn out your pockets, genuflect, and avoid eye contact for fear of antagonizing. Apparently this is incorrect? So confused…

    Nononononono….Turning out your pockets before you're asked, and maybe sometimes when you are asked (depending on how the officer feels that day), will get you shot, which will cause your better to have to go on a two week paid vacation.

    You're supposed to genuflect, then assume the felony stop position until instructed to do so otherwise.

  10. Ancel De Lambert  •  Jan 22, 2013 @8:20 pm

    In other news, citizens of Maricopa County received gorilla safety glasses courtesy of the Albuquerque Zoo. When questioned, one zoo official stated, "the citizens of Maricopa need these glasses far more than our patrons do. I'd rather stare down an adult Silverback than dare look an Arizona cop in the eye. Besides, Arpaio is so dumb, he probably won't even notice that you're wearing the things."

  11. Southwest Brogue  •  Jan 22, 2013 @10:50 pm

    Arpaio is the worst. Thank god I've never been pulled over by a sheriff's deputy. The man is basically a racist grandfather… who collaborates with attorneys to make sure duly elected officials sing his tune.

    Thank goodness I'm a WASP, otherwise I don't know how I'd live having his goons hound me for just being a different ethnicity.

  12. AlphaCentauri  •  Jan 23, 2013 @6:18 am

    It's so ironic, when it's the Anglos who are the one ethnicity least native to Arizona.

  13. Miranda  •  Jan 23, 2013 @8:34 am

    Our State Bar Association publishes a monthly journal. It's useless. But I remember one December a piece on how to talk to people at cocktail parties about areas of the law in which you don't practice. For the criminal law section, the question you were likely to be asked by friends was "If I'm pulled over on suspicion of DWI, do I have to blow?" The published answer was given by an elected district attorney who, while never mentioning the right to remain silent or have an attorney, said to tell your friends that when they got their driver's license, they agreed to participate in the investigation of their own DWI. And this advice was given by a laywer. And published. In a Bar Associaiton magazine. To its credit, at least the journal also published my letter to the editor in response to this advise.

  14. James Pollock  •  Jan 23, 2013 @11:40 pm

    Call me a fascist if you like, but I have no problem at all with the possibility that someone who is guilty might make themselves look guilty by talking too much (to the police, or on Facebook, or wherever.)

    From a position of social utility, the substantial reduction in investigatory effort needed to convict the guilty frees up resources that can be used elsewhere… repressing the repressible, investigating other actual crimes, or perhaps converting law enforcement resources into other socially desirable resources, like lower taxes or writing letters to newspapers refusing to enforce gun-control laws. (That last one being how my Sheriff uses his time saved from criminals admitting being criminal instead of requiring investogation to prove it.)

    The social contract requires people to not be criminals. If you can't hold up your end of not being criminal, you can AT LEAST make it really easy to convict you. (Everyone knows that if you aren't really guilty, your defense attorney will somehow make the guilty person stand up in court and admit their guilt, in around 54 minutes.)

  15. Dave  •  Jan 27, 2013 @9:16 am

    Mr. Pollock:

    Call me a fascist if you like, but I have no problem at all with the possibility that someone who is guilty might make themselves look guilty by talking too much (to the police, or on Facebook, or wherever.)

    What's your position on the possibility that someone who is innocent might make himself look guilty by talking too much?

    A follow-up question: which is the greater sin: convicting the innocent, or letting the guilty go free? Hint: this isn't a philosophical question; there is only one correct answer, and it's self-evident if you think about it.

  16. James Pollock  •  Jan 27, 2013 @2:33 pm

    "What's your position on the possibility that someone who is innocent might make himself look guilty by talking too much?"

    I think it's pretty rare… and refusing to cooperate ALSO makes you look guilty.

    "A follow-up question: which is the greater sin: convicting the innocent, or letting the guilty go free? Hint: this isn't a philosophical question; there is only one correct answer, and it's self-evident if you think about it."

    A touch smug here, aren't we? Here's a free hint… people who are interested in the application of law to society probably have "thought about it" a little already.

    There're at least four answers to your question, any one of which COULD be "correct" in the appropriate circumstances. (The "correct" one is a value judgment (to go along with notions of "guilt" and "innocence".))
    But you're right, the most usually correct, "best" answer IS easy, and it's "both". We should strive for a justice system that avoids BOTH convicting the innocent AND acquitting the guilty, if we can afford the time and money for it.

  17. babaganusz  •  Jan 29, 2013 @11:55 am

    J.Pollock: "…people who are interested in the application of law to society probably have 'thought about it' a little already."

    probably? gee, that's a relief.
    or were you cutely implying that everyone with legal enforcement powers is sure to have given consideration to such a question? because i sure wouldn't advise banking on that.
    also, 'both' can't be 'the greater sin', although 'neither' (presuming that's another of your 'four' possible answers) could. but either way you're not playing Dave's game – which is fine, of course… but you might as well admit you aren't, instead of rolling out the counter-smug.

  18. babaganusz  •  Jan 29, 2013 @11:57 am

    "…if we can afford the time and money for it."

    …and if we can't? (which leads to… get ready for this… the point of the question!)

  19. James Pollock  •  Jan 29, 2013 @2:31 pm

    "probably? gee, that's a relief.
    or were you cutely implying that everyone with legal enforcement powers is sure to have given consideration to such a question? because i sure wouldn't advise banking on that."

    Actually, I was referring to people who comment publicly on the subject, say, for example, on a blog related to the subject.

    "also, 'both' can't be 'the greater sin', although 'neither' (presuming that's another of your 'four' possible answers) could."
    So you agree with me that question was so poorly phrased that the correct answer isn't even one of the choices?

    For the record the choices work out to:
    One
    The other
    Both
    Neither (something else)
    Neither (neither one is actually an answer to the question)
    It depends

    "'…if we can afford the time and money for it.' …and if we can't?"
    Depends on why. For example, soldiers on the battlefield lack the time to provide extensive due process. If you're wearing the enemy's uniform, there is a rebuttable presumption that you are the enemy. The soldier may act on the presumption before examining your rebuttal evidence. This is an example of time constraints limiting the process due. One of the biggest complaints amongst users of our justice system is that it is slow. Accuracy of results takes time (some times more than others).
    You can get even more severe problems where the societal wealth does not support an extensive, expensive justice system. If your punitive options are largely capital, the costs of inaccuracy of result are obviously magnified. Even if you're just talking about legal matters involving wealth, if the cost to secure representation are too high, valid claims may be foregone because the costs of pursuing them are too high. Access to justice is ANOTHER complaint about our justice system. Yes, you can have an attorney appointed to you if you are an indigent criminal defendant… but the attorney who represents you has many, many other clients competing for their time, and may not be able to provide you with full, undivided attention. (Also, it bothers some people that the taxpayers cover the expense of defending criminals).

    There are three axes in building any kind of system. You can have it quickly, you can have it be efficient, you can have it be cheap. Choose any two. EVERY choice has tradeoffs… even if you're building a system of justice administration.

  20. J  •  Jan 30, 2013 @8:12 am

    "The social contract requires people to not be criminals."

    Do you know someone that has never ignored a law? I know a "dirty secret" about every person I am close to. Drunk driving, vandalism, destruction of public property, tax fraud, stealing, assault… I myself have ignored more laws that I can count. Some because I simply do not agree and accept the possibility of a fine, some that I regret and hopefully won't do again.

    Persecuting all the little missteps of every citizen would cost more money than it's worth and take more time than the system has. I actually see this as a form of protection from the law. If every single time I overstep a law I got fined, I would probably try to change quite a few laws.

  21. James Pollock  •  Jan 30, 2013 @11:47 am

    "Do you know someone that has never ignored a law?"
    Newborn infants? I have a neice who's just about a month old, I'm pretty sure she's not a hardened criminal yet.

    It's kind of hard to follow your argument, which sounds like a civil version of Christian theology ("we are all sinners"). The legal principle of de minimus dispenses with a lot of your argument. Note that "criminals" is a stricter category than "violators of the law".

3 Trackbacks