In the days a few decades ago when I was an attorney for military cops on several military bases, getting calls at odd times such as 3:30 a.m. or half past midnight was typical. I never objected despite the many nights my kids and spouse voiced complaints about repeatedly being awakened by those calls. I knew the cops were performing their due diligence to seek a legal opinion concerning action they proposed, often in the context of determining whether there was probable cause to take that action. While no numbers come to mind, I recall that a significant number of times I expressed my opposition to the proposed action. On several of those times, my boss demanded an explanation the next day as the daily reports described the scenario. My boss wanted to always give the cops the benefit of the doubt, so in close questions, he would let the cops have their way. My view was opposite, based on my understanding of the US Constitution. I never backed down, and in that process I became known as a fiercely independent prosecutor who took seriously the job of carefully balancing public interest with private freedoms.
Sadly the tale on my mind today reminds me how unbalanced the prosecutors and judges have become who advise cops on probable cause for warrants and subpoenas. Today that fair prosecutorial discretion I prized is virtually nonexistent. Instead, cops seeking independent legal opinions get rubber stamped almost every time by those who should know better, the prosecutors and judges. http://www.huffingtonpost.com/2013/08/15/texas-swat-team-conducts-_n_3764951.html
That’s what happened in the outskirts of Dallas, Texas, when a SWAT team raided the private property of a 50 something lady named Shellie Smith. Over several days that included helicopter surveillance, ground surveillance with camera shots of all activities, and trial runs of raid protocol off site, the cops put together an affidavit, meaning a solemnly sworn statement of truth, that twisted words and phrases to make the residents on the Smith property appear to reviewing prosecutors and judges as if a drug gang had taken over that location. The prosecutors knew fully well from experience that the SWAT commanders uniformly push the envelope of truth when they manufacture their sworn statements. In other words, no prosecutor with over a month’s worth of experience working with cops believes even half of what they allege with straight faces under oath. Cops lie to get their job done, and those on the inside know cops consider lying to prosecutors and judges to be the best way to get their job done. http://www.wfaa.com/news/local/tarrant/Owners-irked-after-raid-on-Arlingtons-Garden-of-Eden–219354841.html
After the ten hour raid of the Smith property, no contraband whatsoever was discovered, despite the cops having torn up the crops on the property that the residents had depended on for several years to sustain themselves. It wasn’t as bad as Waco where hundreds of people, including kids, burned. But it scared the hell out of every man, woman, and child living then on the Smith property. The intentional infliction of emotional trauma by the cops should be the centerpiece of some sort of civil action, but that’s a stretch under Texas law. More likely, nothing will come of it other than a small group of militarized civilians who wanted to do nothing more than raise vegetables and a few chickens and goats. Psychologists can better assess the psychic trauma and its likely implications for the children involved. But all of us know that experience will stick with them for many years. http://www.vocativ.com/usa/justice-usa/marijuana-swat-raid-marijuana/
HamiltonFinanceServices.com observes that in the USA, we have changed from a nation of roughly 2000 SWAT raids in the 1980’s to over 70,000 of those raids now every year. That’s a lot of militarized civilians. No one sees clearly what the consequences might be, but no one should feel complacent about the absence of centurions to oversee the centurions, either. What do you think?
I live in Texas. It’s a disgrace and embarrassment. Thank you for bringing it to our attention!
As a retired prosecutor, I too am embarrassed, not so much just for Texas, but for virtually all jurisdictions that have buried the concept of prosecutorial discretion, meaning balancing public interests and private freedoms, with rabid war against perceived enemies. Some are truly enemies, but the majority are simply Americans making bad choices. A few suspects are even plain, law abiding citizens, and our American Constitution demands that we assume everyone is innocent until convicted through due process in a court of law. We need fiercely independent prosecutors and judges who let this Constitutional presumption of innocence trump the fever pitch of cops who must maintain that pitch to accomplish their ever more difficult job. The lawyers should be, but too frequently are not, the voice of reason. In Shellie Smith’s case, I blame most the prosecutors and judge who did not look out for the plain, law abiding citizens.