POLICE LIE WON MY CASE FOR ME
The Beginning of Reason, Maybe
Dennis L. Blewitt, Esq.
The Sixties were a time of turmoil, conflict and change. Nowhere was it more pronounced or exiting than in Boulder. There was an invasion of “hippies,” much to the onsternation of the town’s founders and power structure. It is still going on today.
Before I left town for law school in Chicago, I did an analysis of the Boulder power structure, using a recent floridation referrendum as the subject. Since there was a large Adventist hospital in Boulder, I assumed, that group was in the leadership position. Essentially, it was an attempted application of net theory. The reader should be aware that we were just coming out of the McCarthy era and the loyalty oaths were a subject of much debate among the faculty. The University was viewed as a fantasy land, inhabited by Comunists and other threats to patriotism. I was at my first anti-decrimination rally at the Woolworth’s store at Broadway and Pearl streets.
To my surprise, I discovered a different group, led by small businessmen ultra conservatives, agitating against floridation, and more, such as impeaching Earl Warren, getting out of the UN, firing a left wing professor who described J. Edgar Hoover as the biggest threat to democracy that existed in the world at that time. He was oposed by as naturalized “patriot” who traveled the state, addressing legionaires and others who feared politics of change. This paranoia increased with the start of the Viet Nam conflict and the draft and anti-war resistance movement.
So, after a three year absense for law school, imagine my surprise to find how the city had changed. Turmoil prevailed. The old guard was still there, but circling the wagons. They were threatened. The Impeach Earl Warren billboards were still up going South out of town. Outsiders were barely tolerated, unless they were famous. The founding fathers viewed hippies as commies and traitors. The police now harassed those who looked different rather than thought different. The university loyalty oath became less important, at least to some. Hippies were now the clear and present danger. When arrested, they were given haircuts for “sanitary” reasons by the jailors. It took a lawsuit to stop that practice. However, the jailers substituted hosing down with garden hoses in the booking center as a substitute. It was more fun to watch. Sometimes, the arrestees had to strip and be hosed down in the showers, generall in front of a full audience. It was explained that it was for the prisoner’s protection. From what, I never discovered. Fear and loathing was the general condition. The conservative founding fathers led the charge against hippies and change. The culture war was on. Sides were chosen. And some were drafted, just like in Viet Nam.
The main stage for this war was marijuana. It was the symbol of choice for those against the status quo, the establishment, the war machine. However, the forces for change lost with the convention of 1968, There were riots in Chicago at the democratic convention where a police force ran rampant over the constitution to stop the infestation of hirsute youth. There was a revolution by a younger generation. They lost. My belief was that the only logical political position was that of a counterrevolutionary. Otherwise, the pro-police state maniacs would win. The election of Richard Nixon confirmed my analysis.
There hoards of “hippies” ariving in Boulder, dressed in colorful costumes in unconventional styles. There were the Hare Kirshna’s robed in safron and beating drums or chanting. There were the activist. There were the stoners. And, also, there were a group, led by a robed hippie calling himself John the Babtist, preaching from the flatirons about love, sex, drugs and resistance. He made Timothy Leary seem like a reactionary.
In any event, one of his followers wandered into my office, after being caught in posession of over a pound of weed, in a grocery bag, tucked under his arm like the ghost of the London Tower. He was arrested in that hotbed of communism and drugs known as the “hill,” adfacent to the University, over-run with University Students and other suspicious persons. A good percentage of law enforcement hung out there, municipal, state, and federal, where it was easy to bag their quotas of pot smokers and other non-patriots.
The client was of Hispanic origin from Harlem, New York. His New York accent was hard to miss. I had known his wife prior to his marriage. She was related to a prominate Southern Senator at the time and came from a long, established Southern family. She escaped to Boulder to explore life. Her relative, when he heard I was representing her husband, offered me a sum of money to take a dive. I declined. I wasn’t a big fan of Southern Democrats. I ended up defendingn him for free, but it was worth it.
The new DA was a former FBI agent who practiced law in the town. He was an Easterner and therefore felt compelled to wear cowboy boots to show he was one of us. He was going to rid the town of the scourge, and the most obvious way was to prosecute all marijuana posession cases. The judge was the just defeated DA. He was WW2 disabled Navy vet who ran as a democrat after ther Chicago police riots. He was friendly
The new DA was full of himself, but had the support of the law enforcement community. His new policy was to try every case. Be tough on crime, especially that evil marijuana. Show hippies who we are. I was batting a thousand in losing drug cases thus far. However, since no other lawyers would go near them with a ten foot pole, I was relatively safe. That was until it was discovered that many “hippies” had substantial trust funds and I was getting paid for some of my cases. In the meantime, those of us who objected to the oppressive and punitive conduct of the police and Courts, decided to clog the docket. This we did without effort. The only way that it was stopped was by the institution of a Public Defender’s office.
Marijuana was extremely divisive amoung the townspeople. When I was growing up, it was referred to as “loco weed,” favored by Mexican immigrants and seasonal workers. Nobody seemed to pay any attention, until it started being assosicted with draft and war resistance, Commie politics, and flat-top dodging young men who burned draft cards and protested the war. The weed became a problem because it bacame associated with everything feared by the young people’s parents. They survived a depression, World War, rationing and recovery. The wanted better for their children. They wanted obedience, conformaty, loyalty. Ozzie and Harriet was their model. Beaver was what they expected in their children.
There was no dialogue, just demonstrations of power. It was “my way or the highway” as far as the Government was concerned. Dissent wasn’t to be tolerated. Patriotism was an imperative. The children had to be saved from themselves. The hippies must die. So must dissent and disorder. One of the most hated was the “STP” family. They were colorful and predated the rainbow coalition. There was a case in our office involving one of their members who was arrested for having an upside United States flag sewn on the seat of his pants. That one was in the appellate stage. STP John preached from the flatirons every day, extoling the virtues of the Leary halucigen.
That was the climate when Carlos got caught with his kilo of marijuana. An Hispanic from Spanish Harlem, he had the New York attitude that cold piss off any cop. He had a ponytail and beard together with outrageous cosuming, consistig of beads, bells and other bobbles. From the town’s elite, it was worse. He had a white wife. He was exactlly what Boulder didn’t want. Image conscious Boulder was afraid of what the STP family would produce. Why would parents send their kids there, when there were draft dodgers, draft card burners, hippies, intellectual Marxists and other undesireables. I had a choice. I could plead Carlos guilty in exchange for a prison term not excednign 5 years, or I could go to trial on what appeared to be an open and shut case.
At a suppression motion, the arresting officer testified that he observed Carlos in a high crime area. (It was “the hill,” a student area, infested with students, hippies and other young people. It was adjacent to the University and was were the students went to shop, eat and drink.) It was the happy hunting grounds for training new narcotics officers. It was impossible to be there for more than one half hour before an arrest could be made. Students and hippies were fair gaim for the police.
The arresting officer testified at a preliminary hearing that it was a high crime area because drugs were a crime and over half of the people in that area were in possession of the same. (He failed to testify that 90 percent were youths and college students.) He stated that the defendant had a Safeway bag under his arm and seemed nervous. When he approached Carlos, he noticed that the bag was leaking a brown leafy substance. His experience and training told him that the defendant had marijuana. The defendant stated he was picking up trash and on his way to a trashcan on the corner when he was accosted by the officer. The evidence was ruled admissible. (My client said that the hole wasn’t in the bag when the officer took it. I asked the officer if this were the case, and stated that the bag was exactly like it was when he took it and turned it into the evidence locker.) He said that my client was probably lying to me. A polygraph indicated differently. So, we went to trial.
However, at the trial, another version was told. The Courtroom was packed. It resembled a clown convention or a Halloween costume party. There were festive ornaments on the multi-cullored garments. Bells rang and bracelets rattled. The hippies were in force to watch American justice in action. The defendant’s story was unlikely, but it was plausable, but just barely. I didn’t think I could sell a jury, so additional tactics were in order. I believed that if the jury thought I was a court appointed red-neck bigot, they might feel sorry for Carlos for having to be defended by such an ass hole. I scowled at him in front of the jury. So, when picking the jury, I had Carlos sit away from me and I looked at him with disdain, as though I were court appointed to represent him. The jury looked formidable. Not a hippie among them. They looked so serioud. I felt they were making plans to build a scaffold while sitting there. When the DA questioned, they smilled and nodded like good little robots.They all had short hair.
The DA was a smiling glad-handing yuppie. He was young and dynamic. He was likeable. The judge was a WWII vet from the navy. He was wounded at Normandy and had a bad back. He had just been defeated for DA even though I worked for him on his election campaign. He was sort of fair, but not exactly a model of liberalism. He was better than the alternative. He allowed most questions and sat there looking judge-like.
My turn. When I got up to interview the jurors, I sighed and tried to do my job. The reception was more than hostile. These were solid, middle-class, white, patriots of the white middle class community. It was hard to discern what was hated more, the hippies, the students or hispanics. I was pissing into the wind. There were no students on the jury. Few young people were in the pool. They were all in the audience. They couldn’t vote yet. So, I shook things up a bit. When questioning the jurrors, I asked, “Do any of you have an opinion of Spicks?” Those jurrors that were shocked, I left on. The ones that snickered or laughed, I threw off. However, there was one man from a small town who was on Social Security that I could not get off the jury. I was out of challenges. So, the trial began. All I could do is try or cry.
Some preliminary witnesses established the substance and the analysis. Finally, it was the policeman’s turn. His testimony was essentially the same as earlier, except for one minor point. He had previously testified that he saw a hole in the bag with green leafy substance seeping out, which, as a trained police officer, knew was marijuana, althogh it was dark with little light. At the trial, he testified that as he approached Carlos, Carlos shifted the bag on the other side, using his body to shield the bag from his light.
Now, the reader might ask, “why did the officer change stories?’ He obviously saw the hole lin the story he gave at the preliminary hearing. It looked suspicious when the hole in the marijuana bag was the approximate size of a pencil. In the cultural war, no one in the policeman’s circle of friends would have assumed any hippie would carrying a bag would have anything else. “Yes, you may say, but why would he obviously tell such a lie?”
Now that is something more complicated. Testimony is tailored to specific results. At the suppresion hearing, the officer was charged with justifying his stopping of the defending, the questioning and the subsequent search. It was important that he establish probable cause to look into the bag. The only possible reason was that there was marijuana coming out of the bag. That necessitated a hole from which some mysterious substance could leak. The reader must realize that, to the police, the biggest threat to society, other than stopping commies in Viet Nam rather than at the Golden Gate Bridge, was the scourge of marijuana use, causing all the political and social turmoil. Marijuana caused rebellious youths. Marijuana caused daughters to have sex out of wedlock. Marijuana caused anti war protests. Marijuana killed patriotism. Marijuana was a communist conspiracy to undermine the youths of this country and sap their vital bodily fluids. Marijuana was evil. So were the users. So, since police always believe the ends justify the means, the officer felt justified in lying for the greater good and said what he wanted. At the trial he had to justify some sort of guilty knowledge. Therefore, blocking the light with his flashlight so that the officer could not examine the bag was conceived. It showed that Carlos had guilty knowledge of the bag’s contents.
However, I left comment for later. After a denied motion to dismiss, I gave an opening statement and presented my defense– my client. He was dressed in what he described as “West Harlem Pimp” finery and was applauded by my audience, which I generally attracted in those days. The audience were mostly members of the STP family, with court regulars and colleagues hoping to see me get chewed out by a judge or other entertainment that might occurr.
Defendant stated his name and his address as “the streets and mountain campgrounds.” I asked him to tell what he remembered of the night of his arrest.
“Wha chu mean, mon, about that night? How could I forget it, man? I was on the hill minding my own business when I noticed this bag in the gutter. I stooped over to pick it up and take it to a trash container when I am confronted by this racist pig. He asked what I was doing there and if I was a citizen. I said that Puerto Rico qualified me for citizenship last I heard and told him he was a racist pig.”
“Why did you say that?”
“Because he was. I know the way these guys think, whether its New York or Boulder. If you white, that’s alright, if your black, get back, get back, get back. All you have to do is read the papers to know that.” Iv’e experienced it my whole life. This town ain’t no different. They just hide it better.
He then testified how the officer asked about the bag, and when the defendant told him he could not look in the bag, the cop poked the bag with a pencil. Then the cop told him it looked like marijuana coming out and he was under arrest. And, he said, “Here we are.”
He was then cross examined by the DA. After several questions, that got him nowhere, the district attorney asked, “Do you expect this jury to believe that you came across two pounds of marijuana just laying in the streets and you were going to throw it in the trash?”
“I grew up in Harlem, man. You country clubbers haven’t expexerienced it. There was trash everywhere. In the streets, in the gutters, on the sidewalks and just everywhere. I vowed that if I ever was able to escape, I would never again tolerate trash anywhere I lived. So, when I saw the bag, I picked it up to throw it away. On the way, the pig stopped me, questioned me, stabbed the bag and arrested me.
“Are you saying that the office is lying.”
“He don’t look like no George Washington to me.”
At that point he sat down and the court was adjourned until the next day where we would the jury instructions would be read and our closing arguments given. That night, we both went out and got drunk together.
The next morning, I was raring to go, but the DA overslept and was hung over. That was one defense tactic he wasn’t taught, but I educated him in a hurry. When he arrived, he didn’t look too good, but told the Judge that he was ready to proceed.
We gave final argulments. My opponent argued that it was the jury’s duty to stop the marijuana scourge and clean up the town. We should not tolerate drugs or the people that it brought to the town, pointing to my client’s supporters assembled in the back of the courtroom, in a rainbow of colors and beads. He summoned moral outrage and told the jury that it was there duty to protect the community from such trash. Then it was my turn. I slowly arose, shaking my head,looking bewildered. I slowly addressed the jury, starting in a soft voice, making them strain to hear me.
I agreed with the district attorney. Cases like this were significent and would define our community. But it was up to the jury to determine what type of a community we wanted to live in. Since the district attorney brought up the subject, I thought I woud comment on the subject.
“What type of community do we want,” I asked rhetorically? I then described the dream middle class existance, whith all white people, no crime or delinquency and with all youths with close shaved haircuts.
“There is ample precedent for such communities or societies. My father risked his life in a war to with such a society that wanted to descriminate, euthanise, and exterminate all the ‘others,’ to purify people and thoughts. That was what the DA was describing. But, is that what we want?
Or, do we want a society based upon tolerance and truth. I agree that my client isn’t the type of person that I would like my sister to marry. However, I don’t make decissions for her. Will we tolerate prejudice and lies to protect our daughters and sisters? Do we wast police tha believe that they can get away with lying because of the nature of the offense or the offender? Or, will we belileve any person who has a uniform or a badge? Does a certificate of truth come with the badge? I want you to go into the jury room and look at the evidence. Calculate the probability that a pencil hole just happens to be in a bag, or was it added later? Pick up the flashlig. Shine it around. Point it at you fellow jurrors and see if the flashlight is an xray flashligh. Can it see throu\gh a person? If, not, there can be only one conclusion. My client was right. He, ain’t no George Washington. So, if that is what you want, go ahead a convict the defendant. Very few people would care, and many would rejoice, not becqa\use of what he had done, but because he looks different, talks different, and is offensive. I don’t care. A year from now, I will be at some University teaching. So, the future is up to you.” I then sat down.
The jury was back in three hours. Supprisingly, the verdict was not guilty. I waited around the courthouse to talk to the jurors. One of the jurors whom I tried to exclude from the jury and started to talk. He was a farmer from Louisville, a smal neighboring town. He looked old enough to be retired, but said he was still farming. I asked him, “Why the hell did you find the defendant not guilty? He looked at the district attorney and replied, “shit, we just couldn’t convict someone of having anything that grows wild in the ditches around here. We all agreed on that.
The next day, the District Attorney’s office announced that it was impossible to obtain a marijuana conviction in Boulder County. That was his conclusion. His mind just wasn’t clear enough to see that maybe the problem was his constituency, not the community. No community likes a police force that bullies or allows purjury. Of course, one who worships law enforcement and owes his political existance to police would never think of that. Oh, well, at least I won.
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