Tuesday, June 12, 2007

Not guilty

One of my favorite Willie 'n Ethel cartoons has Ethel asking wistfully, "Willy, what are the three most beautiful words in the English language?" and Willie answers, "If. Maybe, and Tomorrow."

Today, I'd add two new ones: Not guilty!

About six weeks ago, my car was ticketed and towed from the front of our house. Ostensibly, temporary no-parking signs had gone up the morning of May 1 notifying everyone that the street would be swept on May 2 and to move our cars or else.

Lovely Wife and I do not remember seeing the signs. We took a walk in the afternoon of May 1 (ironically, the 15th anniversary of my admission to the Minnesota bar) and noticed how odd it was that there were signs on all the surrounding streets but not on ours; or at least that what we remember thinking. In any event, we didn't move the car that evening.

I went to work on May 2d, taking the bus, and walked out the front door onto the street where the care was parked, and again didn't see, or was oblivious to, the signs that were ostensibly posted there. Later that afternoon came the call from home that the car had been towed and that I had to take my first trip to the impound lot.

It cost about $145 to get the car out of the city impound lot, and then there was a $34 parking ticket from the county. The impound people said that if I got the ticket dismissed I could file a claim to have the towing and impound fee refunded. So a few days later I went to the courthouse, met with a traffic hearing officer who offered to drop the fine. This was nice, but not good enough to get the towing fees refunded. So I rejected the deal and was told to come back to court in three weeks to make a plea. Just to be sure that it wouldn't be easy, I was told to be in court by 9 sharp and to count on at least two hours before being called.

I did so, only had to wait 90 minutes, pled not guilty, and had a trial date set.

My case was going to be that I hadn't been given notice of the temporary no-parking, and while I was unable to say for certain that the signs were not posted on time, I was doubtful enough that I was willing to put the state to its proof.

The trial was today. At first, my heart sank when I saw a uniformed, middle-aged woman already sitting in the courtroom. My best hope was that the city wouldn't bother to send an officer to testify and the charge would be dismissed without a trial. It was now clear that it wasn't going to be that easy.

The prosecutor was the next to arrive. She was an intelligent-looking, friendly, attractive young woman who is an associate in a large (the largest) Minneapolis law firm which donates its trial associates through thee-month stints as assistant city attorneys to help them get courtroom experience. This, too, was not good news; I'd worked with these "rotators" many years ago and they were uniformly smart, able lawyers over whose eyes no wool was going to be pulled. Not that I was going to pull wool, but still a sign that I was going to have to work for it.

The city attorney spoke with the parking officer, and then came over to talk with me. She showed me a copy of the log kept by the street department recording when it posted its no-parking signs, and upon which the parking officer relied in tagging vehicles. The log showed that the signs had been posted on our block between 9:46 and 9:52 am on May 1, more than 24 hours before the ticket was issued.

But this was my ray of hope: I knew that the street department's log was not admissible unless the "custodian of the record" would testify that the log was kept in the regular course of business, and that the parking officer was not able to lay that foundation. If I could keep the street department log out of evidence, they wouldn't be able to prove that the signs were posted 24-hours in advance and I should win.

I mentioned this to the city attorney who saw the trouble she was in. She did what any good lawyer does in that situation: she began looking for loopholes, and found one. She printed out a copy of the parking ordinance and discovered that there's nothing in the ordinance that requires 24-hours notice of a temporary no-parking zone; the 24-hour notice requirement was a city administrative policy, not an element of the offense itself. Now I saw I might be in trouble. If the ordinance doesn't require 24-hours notice, then the street department log wasn't relevant; it was enough that the parking officer would swear that the signs were posted when she showed up, I was sunk. I thought.

The city attorney saw my disappointment and offered to go "halfsies" with me -- I could get off with a $17 fine instead of $34. I was tempted. I was beginning to see the hubris in my thinking that I could out clever them and that maybe I should cut my losses and accept the invertible. It's what I did in 1972 when I pled guilty to trespassing in someone's swimming pool that I hadn't trespassed in because I didn't want to come back to Cleveland from college to contest what was going to be a small fine, and in 1971 when I didn't file my application as a conscientious objector because I had a high lottery number and didn't need it. I accepted both those decisions as the rational ones, but I always felt badly about them, that I was somehow dirty for taking the easier road.

But this time I said no. I don't think the signs were up, despite the evidence, and I will put you to your proof. "You're going to trial over a parking ticket?" the city attorney said incredulously. "Unless you dismiss the charge," I said.

So she called for a judge. This surprised me. I had a trial date and I expected there to be a judge immediately available. But no, it was so unusual to need one for a parking ticket that they just called around to find a judge with the time to hear a short trial. We waited, and then the call came. "Judge Z has time to hear your case if you can come to his courtroom," the clerk said.

More good news. Judge Z was previously the general counsel for the local office of the Equal Economic Opportunity Commission with whom I had had some small dealings about seven years ago. He was a gentle soul with a reputation as a friend of the downtrodden, and as a mensch. If there was a judge anywhere in the courthouse that might give a sucker an even break, it was Judge Z.

We went to his courtroom, and after a couple of short waits where Judge Z showed himself to be the very model of a modern judge -- he's there not to "judge" but to "help" -- the case was called.

I was pretty nervous, actually. I hadn't been in a courtroom for almost eight years, and my skills were rusty; I wasn't as familiar with the rules as I once was, and I was a little afraid of embarrassing myself. And I still wasn't sure what I was going to do with the lack of notice requirements in the ordinance. But I knew to object when the city attorney tried to introduce the street department log, and the word "sustained" was like music to my ears. I tried not to overplay my hand in cross examining the parking officer, since I knew the judge would take her side if I did, so I kept it simple to establish only that she had no personal knowledge as to when the sign was actually posted. That's all I had, and all I needed.

The city attorney rested here case, and I didn't put on any evidence of my own since I didn't think I needed any: the city simply hadn't proven its case, if some notice was required.

Then I made my argument. I know that the ordinance doesn't require notice, but think of it: if no notice was required the city could go around and hang temporary no-parking signs on the trees and immediately ticket any cars parked there. That isn't what happened here, maybe, but it could if the ordinance isn't read to require some notice. It's a matter of due process, and it would be unconstitutional to read the ordinance as not requiring any notice at all. And since the city hasn't proven that the signs were posted more than a moment before the officer arrived, it hasn't proven beyond a reasonable doubt that I had the constitutionally required reasonable notice of the temporary no-parking zone and therefore could not be convicted.

Then the moment of truth. The judge began reciting the undisputed facts. The car was parked. The signs were there. The ordinance doesn't require 24-hour notice. Uh oh, I thought.

But then: Though the ordinance doesn't require any notice, it does say that it is unlawful "to park" in a place that is marked with a temporary no-parking sign, not "to be parked" in such a place. There was no evidence that I "parked" my car in a place that was marked with a sign.Therefore, the city hadn't proven beyond a reasonable doubt that I'd parked illegally, I was not guilty, and the ticket was dismissed. (This was true, but I didn't think to raise it: the car hadn't been driven in several days, and there was no sign when I parked it.)

Yahoo. I was a free man. My towing fee should be refunded promptly. It was worth it.

Then Judge Z went back from being a judge to being a helper again: He assured the city attorney and the parking officer that the verdict didn't reflect badly on them, they did a terrific job and were honest public servants whose service he honored and appreciated, etc.

This time, instead of rolling my eyes, I just grinned. It felt good.

This was an important lesson for me. Too many years as a government lawyer myself (1992-99) had hardened my heart in some ways. I have become too presumptuous and conclusion-jumping with the justice claims of others when the rules seemed to be so heart-breakingly clear. Even today, my instinctive reaction was to say, "No, that can't be right; you can't ask the city to permit cars to stay parked during street sweeping time by simply not moving them; when you park on a city street you know that you will sometimes have to move it even if the no-parking signs are posted after you park." But while that may in fact be the objectively correct answer from a legal and public point of view, that wasn't the answer I wanted to hear as an individual citizen who felt treated unfairly.

I also got a renewed lesson on how privileged I am to be able to contest this ticket. I could afford to take two half-days off work because I have a flexible situation and enough working capital to be able to afford some unpaid time off. I was of the right age, demeanor, and color to be taken seriously. I have the legal training to respond to this relatively simple situation without having to spend a large amount of money on attorney fees. Etc.

I also learned not to assume anything. When I called the city to inquire how to get my towing fee refunded, I was told that that required a separate claim and investigation and that having my ticket dismissed wasn't necessarily going to get me my money back. So I still have work to do.

Finally, I learned a little more about what the presumption of innocence means. I was reminded of a Texas defense lawyer who I heard speak at a death penalty defense seminar who explained the presumption like this: Whenever he questions a juror, he asks the juror to stand up and look the defendant in the eye and say, "I think you're innocent, and they're going to have to prove it to me." He said that a juror who could say this was a juror who understood the presumption and the burden of proof.

I won't likely be not guilty for long, but I'm enjoying it while I can.

* * * * *
Tomorrow is Only Son's 16th birthday. I've gotten him a good electric razor. It seems like yesterday I was getting him Legos.


Marshall Massey (Iowa YM [C]) said...

Hello, Paul!

Combining this posting with your next one -- I guess I'm not all that convinced that what-the-f**k Jesus would do would be to fight the matter in court.

This is a good question, and an important one. I might be totally off base, but let me tell you my thoughts, and I'd like to hear your response.

It was certainly Christ's principle to uphold justice; but he also taught, in the Sermon on the Mount, that we should make peace with our accuser on the way to the courtroom, rather than waiting for the trial and then trying to duke it out -- and it rather seems to me that you were offered that option by a Christianly compassionate city attorney and passed it up.

Christ also taught us, in the Sermon on the Mount, to resist not evil. The only way I can think of, in which to reconcile this teaching with Christ's manifest concern for justice, is that he meant we should be less concerned about standing up for our own rights, and more willing to let our rights slide and suffer some injustice graciously, when there is some greater prize (such as the winning-over of the other person and the reaching of that person's mind and heart) to be gained by being graciously nonresistant.

Perhaps a good way to apply this principle in a situation such as you've described here, would be to say to the enforcers: Let's let the question of my own innocence slide for a bit while we ask how you ensure that there won't be other innocent victims down the road. Do you have ways of ensuring that people already parked where the signs are being set out, have adequate opportunity to move their cars before they are towed?

By taking such an approach you might be able to make yourself a team player with the enforcers, rather than their opponent, and the underlying issues of justice and compassion might, just might, be better addressed.

But I don't know. You know the legal setup where you live a lot better than I do. Maybe I'm just being ridiculously idealistic. Do you think so?

I'd love to have your feedback.

Paul L said...

Marshall -- Your questions are good ones. As you know, I have deep respect for your thoughtful, gentle, clear thinking as reflected in your writing, and I accept your questions as honest ones asked in good faith, and I'll try to respond in the same vein.

As you also know if you read here often, I am not necessarily careful or serious about all I write here and sometimes have some fun at the expense of accuracy or precision. And above all, I feel free to express parts of my personality that are not yet fully integrated into my Quaker identity, and don't hold out everything I say as a proper Quaker point of view.

That said, I am not sure that what I did was as far off-base from what I imagine Jesus might have done under similar circumstances, if only I could imagine what the First Century CE equivalent of a parking ticket might be.

First, I distinguish between being accused of a crime by the state (the parking ticket is a petty misdemeanor in Minnesota, and is a crime albeit of the most minor category) and a dispute between two individuals described in Matt. 5:21-26.

I agree that Jesus wouldn't have gone first to court to sue his neighbor if the neighbor had damaged Jesus's car (WWJD, I wonder?) without first doing all he could to resolve the dispute informally (including forgiving the debt), and perhaps not even then.

But I have never understood this admonition to apply to the state that has accused the believer of a crime. In the only instance I can think of where we have Jesus before the state -- his appearance before Pilate -- he more or less stood mute. He certainly didn't try to work out a mutually acceptable settlement, or to engage Pilate in a conversation to convert him.

Similarly, our Quaker forebears were not hesitant to defend themselves by insisting on strict compliance with legal procedures and proof when they were being persecuted.

I also didn't consider the city attorney's offer to go halfsies with me on the fine to be a compassionate offer. The county offered to drop the fine at the very first stage of the proceeding -- but not to dismiss the charge altogether which is what I needed to get back my towing charges. This wasn't a half-a-loaf; it was more like a stone, and I simply wasn't interested.

I'm also not sure that I would characterize my parking ticket as a suffering for the faith that I should have accepted graciously as testimony or an example to others. If I thought I was towed because of a political bumper sticker I have on it ("God hates torture. So does the law."), or if I had deliberately parked it in a no parking zone in order to disrupt some unjust business-as-usual, it would be a different story.

Here, I simply did not think it was fair, or perhaps legal, to be ticketed without proper notice of street sweeping and I was not sure that I had been given notice.

The question you suggest I may have asked the city is a little hard for me. As a lawyer with experience in the criminal and civil justice systems your question sounds to me more niave than idealistic.

In fact, the city already has a pretty good system of ensuring that notice is given before a car is towed. It may not be 100% effective in every case, but it is as good as can be reasonably expected.

There are two problems here, one systemic and one ideosyncratic to my case. The systemic problem is that as a practical matter the city couldn't function if it had to give actual notice (as contrasted with constructive, or presumed notice) to every car owner before towing a car in all circumstances. Streets could never be properly swept, or plowed if that was required; parades could never be held because there will always be cars parked on the street (perhaps the owner is on vacation) that will never receive the notice. Though the city should give as much notice as it reasonably can, the public good requires that cars be towed sometimes without actual prior notice.

I suppose one could say that in such cases the community as a whole should absorb the cost instead of the hapless individual, but that possibility is beyond my abiity to imagination.

The ideosyncratic problem here is that I don't remember seeing the signs; I can't say they wren't there, only that I don't remember seeing them. Objectively speaking, given the records that the city produced, and assuming that they were accurate (and there is no reason not to other than my own memory), it far is more likely that the city followed its procedures and posted the signs in advance and that I was just oblivious to them.

But I was in a situation similar to one where Groucho Marx asked, "Who are you going to believe? Me? or your own two eyes?" I simply decided to put the city to its proof, following the legal procedural rules that it had established. I didn't do anything tricky or dishonest. I simply said, "Prove it with competent evidence." If I'd have been found guilty, I'd have paid the fine (this wasn't a matter of conscience) and almost certainly would have accepted the verdict as legitimate.

In this, I think I was acting consistent with my apostolic namesake who asserted his Roman citizenship and demanded to be tried by the emperor. (To the extent that his motive was to bring the gospel to the emperor, he was certainly more lofty than me, but I'm not sure that that was the only reason he insisted on a proper Roman trial.)

The problem (or the answer, depending on point of view) in my case was that the city was unable to enter its records into evidence because it didn't send a witness who was legally competent to testify to the facts necessary to get them in as a business record.

In this, I return to Jesus's appearance before Pilate. When Pilate asked, "Are you the King of the Jews" Jesus answered, "You say so" and left it at that.

If Pilate had freed him, I think the record is pretty clear that Jesus would likely have accepted the verdict and walked away free. (For example, he did take evasive action once to twice to escape the authorities prior to his final week.)

Had Rome had the presumption of innocence and the burden of proving guilt beyond reasonable doubt without forcing the accused to testify, Jesus would have been freed, not because he wasn't the King of the Jews, but because they couldn't prove he was. (Even the temple authorities had trouble convicting him of the blasphemy charge and could do so only with perjured testimonty.)

While I admit feeling surprisingly happy with the outcome of the case, and that it satisfied a certain competative streak in me that I cannot deny having (ask my card-playing Friends), I can assure you that I was unfailingly polite, meek, and honest throughout. Except for a couple of "your honors" that I blurted out from old habits, I don't think I acted in any way that would have brought disrepute to Friends or the Church of Christ.

I hope this doesn't sound self-justifying. I freely admit that I had some fun in this, and that evidence of my self-denial is as lacking as the city's evidence of the signs being posted. A certainly amount of Pride is also at work here, I know.

But I also know that when I've made compromises with what I thought was right in favor of conciliation and nonresistance (as described at the end of my main post), I felt badly and a little guilty. I don't feel badly at all about this, however.

Thanks again for your serious questions, Marshall. Is there more to say?

Liz Opp said...

Hey, Paul.

I've skipped over Marshall's comment and your reply to tell you:

Jeanne and I ROARED as I read aloud your post and the inanity (is that a word?) of the whole situation!

I think I shall have to share your story with my father--a tax attorney with a sense of humor.

BTW, why didn't you call on Lovely Wife as a witness, given that she had taken that walk with you and had raised a similar question about why there were no signs on your block?

Also, next time there's a variety show/talent night, I think you should read this story. Just a thought.

Liz Opp, The Good Raised Up

Paul L said...

Well, I'm glad my trial and troubles were able to bring some happiness into your otherwise dreary lives. . . .

Seriously, I didn't call L.W. because (a) neither of us were certain enough that the signs were NOT there to testify to that fact; (b) I didn't have to prove they weren't there, the city had to prove they were; and (c) L.W. had to work and I didn't feel like issuing her a subpoena.

I have been pretty insufferable with telling this story over the last week or so to far more people than were really interested in it, going around to people asking if they can tell that the dark cloud of guilt had been lifted around my shoulders, etc., so I think I need to do something else at the party tonight, and will. But I may keep it in my repitoire.