Monthly Archives: July 2007

The Rush to Judgment

When did we lose the presumption of innocence in this country?  When did we become so quick to judge and condemn our fellow citizens?

Tank Won't Face DUI Charge

Chicago, IL.  Chicago Sun-Times, July 6  –  The Arizona bust that got Tank Johnson booted from the Chicago Bears will not result in criminal charges, police said Thursday.

Sgt. Andrew Duncan of the Gilbert, Ariz., police said Johnson will not be prosecuted following a June arrest for allegedly driving under the influence. A blood test later revealed Johnson was not legally drunk…

The Bears cut Johnson three days after the Arizona arrest, with officials saying they were "embarrassed" by the lineman's actions.

So Mr. Johnson was fired from his job as an athlete with the Chicago Bears beccause….well, because he was arrested.  He wasn't charged with or convicted of a crime.  He was just arrested.  And that was enough.

Do you recall the arrest of the Duke University lacrosse players for gang rape?  Turns out they were all innocent, railroaded by a politically ambitious D.A.  But the possibility of innocence sure didn't stop the University administration from quickly throwing the students out in disgrace.

I'm not even talking about the attitudes of police, prosecutors and judges in today's assembly line criminal justice system.  I'm talking about you and me.  As Pogo used to say, "I have met the enemy, and he is us."

Every DUI defense attorney knows when he is in trial that he is facing a jury brainwashed by Mothers Against Drunk Driving's massive, hysterical and never-ending chorus, and simmering with frustration and anger from the daily bombardment of news reporting crime, violence and corruption.  Every defense attorney knows the look in jurors' eyes at the start of a trial:  "So prove to me he's innocent".  As more than one juror has commented to me after a trial, "If he's innocent, what's he doing here?" 

But this only happens to other people, right?  Keep believing that — when you are stopped and arrested because of alcohol on your breath from only a drink or two.  

I've been prosecuting and defending criminal cases for most of 38 years, and it didn't used to be this way.  What happened?

DUI a Crime of Violence?

It is difficult for members of the public to recognize and appreciate the degree to which a double standard exists in the drunk driving field. The laws are increasingly unrealistic, procedures unfair, evidence unreliable and constitutional protections largely ignored. An example of this was demonstrated in a United States Supreme Court decision three years ago (Leocal v. Ashcroft, 543 U.S. 1).

The Court was faced with the appeal of Josue Leocal, a lawful permanent resident of 20 years, who pleaded guilty to DUI with injury. As a result, the Immigration and Naturalization Service (INS) commenced proceedings to have him deported as an alien convicted of an “aggravated felony”. The INS regulations defined an aggravated felony as “a crime of violence”, which in turn is defined as “an offense that has as an element the use…of physical force against the person or property of another.” An Immigration Judge ordered the deportation, and the Board of Immigration Appeals upheld the order. Leocal went to the U.S. Court of Appeals, which promptly denied his petition for review.

Fortunately, the Supreme Court reversed the deportation order. In a rare unanimous decision, the Court stated the obvious: DUI is not a crime of violence, even if someone is injured in its commission. A deportable “crime of violence”, the Court said, required “a higher mens rea [mental state] than the merely accidental or negligent conduct involved in a DUI offense.” In other words, the requirement of “the use of physical force against” a person necessarily involves the intent to use that force. Put simply: How can you be accidentally violent?

The point here, of course, is that the everyone right up to the Supreme Court of the United States was perfectly willing to twist the clear wording of the law when the politically unpopular crime of drunk driving was involved. At every level, the nations’s agencies and courts pretended that a crime clearly involving no intent was, in fact, a crime involving the intentional commission of a violent act against someone.