Your Best Defense Podcast

JDP: Everybody says, “Why does it take so long for the federal government to investigate things?” What you have to remember is these FBI agencies and all of these guys with the alphabet agencies have a specific US Attorney they are assigned to. A case begins with the US Attorney, and the federal agent has to sit down and say, “You need this and this and this, and you need this and this and this. Go out and do this and this and this.” It just takes time. I’ve seen it take as long as 3-4 years. The investigations where they come in and catch a bank teller with a twenty-dollar bill in their hand—that’s the extent of the investigation? No. For instance, on the Oklahoma City side, an Oklahoma City police officer stops someone for speeding, writes a ticket, sees a joint. That investigation is over right then. And then you go to court and it may take 2-3 years to get conclusion. This is just the opposite. The feds will take their time investigating that person. This could be a larger embezzlement than just twenty dollars. They will go to the casinos and see if this person has a player’s card. They have a player’s card? How active were they? You will be shocked that people use those player’s cards like they’re crazy. There’s just a complete history of their gambling history. JF: And they’re just giving their evidence over to the government. Here it is in a nice little bow. JDP: That might as well go straight to the agent. So they continue their investigation and do all those kinds of things, because they have to make sure. They have to come up with an exact amount of money that is missing, and believe me, every dime, dollar, hundred-dollar bill that is missing or has been misplaced, whether this person did it or not, is all going to get thrown on that person. So they may make a twenty-dollar bill, and it may turn into several hundred thousand. You never know. Anyway, then they back it up because they have all of these gambling records, but she’s only making ten dollars an hour. That kind of thing. JF: So the feds didn’t get their act together early on, they get their case ready to present and when they indict or when they charge by complaint, they’re ready to go. JDP: A complaint is usually charged, as I say, supported by affidavit, but it’s when something immediate is happening. So a person may flee the jurisdiction, or they feel he is going to commit more harm—something like that. They bring these people into court with an affidavit, and they will be arraigned. It’s really a strange thing, when you go in front of a magistrate in any federal court in the United States—and that’s one nice thing about it—it’s very easy to practice in Kansas, Texas, Nebraska, Minnesota, and New York—it’s all the same rules and procedures. JF: And, by golly, they hold you to hose rules unlike state court. Isn’t that right? JDP: Yes, continuances have to be completely written with an accompanying order. JF: And it doesn’t come with that Good Ole’ Boy system: “I know this judge, and we go golfing together, and I had lunch with his secretary.” There’s none of that favoritism. There’s none of that relationship building. I mean, the relationships are important, but when you’re in front of a federal court judge in Oklahoma City, you’re held to a level of standard of anybody else who would walk in that courtroom. JDP: To give you an example of how powerful a federal judge is—we have examples right here in Oklahoma City. A federal judge took over the Oklahoma City school system, and he segregated. A federal judge right here in Oklahoma City took over the Oklahoma Department of Corrections and ran the corrections department. A federal judge in Tulsa took over the Department of Human Services—their foster care unit and so forth—and ran it. Now think about it. One man— JF: Or woman. JDP: Or woman—and, by god, we’ve got some good judges that are women, I might add— JF: Yes, we do. They’ve taken me to school a couple of times. JDP: Well, you know, it’s a long schooling process, I might add. JF: Yes, it is, and that’s okay. JDP: --one man or woman has the authority to affect the lives of hundreds of thousands of people, whether they are people being served by that state agency or whatever. And that’s an awful lot of responsibility and power to invoke in one person. That’s why they go through an extremely hard and difficult vetting process. And for the United States Senate, they say in Washington, it’s all about politics. I’m sorry, I want somebody that I know a little bit about who we’re going to be standing in front of in court, and I want to know a little bit about them. JF: Absolutely. JDP: Those Senate hearings are public, and it’s all printed and things of that nature. Once you’re arrested and you come in front of a magistrate—the comparable thing in state court of a magistrate is a special judge. A magistrate is hired for a specific term. We used to have a magistrate in Lawton, Enid, and several other places, but we don’t have them here anymore. However, we still have bankruptcy courts in Lawton, Enid, Oklahoma City, Tulsa, Muskogee—all over the state. Bankruptcy is another matter altogether. On a criminal level, you’re in front of the magistrate and the magistrate says, “Okay, I hereby find there is probably cause to have you arrested and to detain you.” A lot of people get caught in Oklahoma County, and they say, “What’s the jail bail? I’ll pay ten percent.” And they get out… JF: All the bondsmen will help you get out of here. JDP: Bondsmen don’t practice in federal court. Period. You get out on an O.R. or you don’t get out at all. And, if the government requests, they can ask for three days of detention. JF: To get their ducks in a row. JDP: Or to make a point. Because you know all of the jail calls are reported. And people like to talk. JF: It’s the worst thing a criminal defense lawyer can ever do is pop open a discovery disc and hear, “This is a phone call from the Grady County Jail. These phone calls are recorded. Please press 1 to continue.” And the next voice is often our client saying or doing something they shouldn’t be saying. JDP: “I didn’t do that deal!” and I’m going. “This is Jack Dempsey Pointer and Jacqueline Ford, and we have been on a conference call. This is an attorney-client conference, and it is therefore confidential. I had no choice but to speak to my client, other than to be forced to press button number one. I hereby revoke the right of the state to record my phone conversation. Do you agree, too, Mr. Jones?” “Yes, I do.” JF: “Please press one, Mr. Jones.” JDP: But anyway, they can hold you up to three days without bond. Then when you come back in, if you’re not indicted on complaint, then you have the right to a preliminary hearing, which means, one, that the alphabet agency guy gets up there and says what everybody else said. And the second thing is, are you a continuing threat to the community or a flight risk and need to be detained further without bond until this matter is over? Pretty high burdens on both of them. The nice thing is, the hearsay swings both ways. We can make proffers—and that by the way, Ms. Ford, is not a federally recognized word in criminal defense. It’s just whatever you’ve been told, that this man is not a flight risk or risk to the community or something like that. JF: So our first step at defense, oftentimes, is in that first hearing. We’re defending his right to be released on an OR bond. We’re defending her right to go back home pending the outcome of this trial. JDP: That’s correct. Now, let’s compare that to an indictment. An indictment is given by a jury of 16-23 citizens of Oklahoma who meet for six months at a time to hear evidence by a prosecutor all by the prosecutor—no cross-examination, no any type of spin, or anything like that. JF: Nobody’s there to challenge the evidence that’s being presented. JDP: That’s absolutely correct. JF: Sounds fundamentally unfair. JDP: Well, and it’s really kind of strange when you say it’s fundamentally unfair, because the unusual thing about it is that the founding fathers thought it would be our protection from the government. Now it’s being turned into being used as a club against our clients. Usually in that situation, somebody has received a target letter from the US Attorney’s office. “You are being targeted in an investigation.” That means you have a target on your back and you are who they’re coming after. “We hereby give you this opportunity to come in, spill your guts, and throw yourself at our mercy.” JF: And let’s just stop right there. Maybe that’s the first time you meet an Oklahoma City Criminal Defense Attorney, when you open that target letter. JDP: It’s probably after you get your first interview from the FBI, IRS, whatever, that comes out and says, “I’d like to talk to you about this little matter concerning money. Or this little matter concerning ownership.” And you go, “I didn’t even realize it, but I just talked to the FBI, and I wasn’t even Mirandized.” Voluntary conversations with the FBI? JF: So I say again, when you receive that target letter, it’s time to call an Oklahoma City Criminal Defense Lawyer. JDP: Actually, the time you need to all a criminal defense lawyer, Ms. Ford, is when they’re out there, “Can I just talk to you for a minute and let you explain this?” JF: Stop talking to the alphabet agencies. You have the right to remain silent; exercise it. You have the right to a lawyer; exercise it.

Jacqui Ford: Welcome to Your Best Defense Podcast. My name is Jacqui Ford, and I’m excited to be here with you today. We’re going to be talking about federal criminal defense and what it means to be charged in federal court, the processes—how they’re different from state court—and why it’s important that, if you’re being investigated for a federal crime, have committed a federal crime, or are charged with a federal crime, you need to find the best Oklahoma City Federal Defense Lawyer you can find. I’m excited today—we have with us my friend and colleague, Mr. Jack Dempsey Pointer. Mr. Pointer has been practicing criminal defense for well over 40 years in the state of Oklahoma. His practice is primarily in the federal courthouse. Jack, thanks for being with us today. JDP: Thank you very much. I did not bring my chisel so I could show you how I wrote Hammurabi’s Code. Ms. Ford and I have embarked on a journey in federal court that very few people have admitted to that privilege. Of course, she’s a tremendous trial lawyer in Oklahoma City—and civil, in the state court. But in federal court, I felt like she needed a little more experience, and that’s why I have kind of taken her under my rather exhaustive wings. JF: And, for that, I could never be grateful enough, Jack. Thank you. JDP: You’re quite welcome. Believe me, you’re going to be paying the price. Ms. Ford approached me about talking about federal criminal defense in Oklahoma City. It’s something that I know something about. As she said, for 45 years, I’ve been doing this. That takes it back to probably when most of the people listening to this’s parents were still in at least junior high school. To start off with, federal criminal defense by Ms. Ford and myself in Oklahoma City is a very unique area. In fact, you’re not going to be able to go to the phone book and say “Federal Criminal Defense.” It’s not going to bring up anybody who has any experience. On the Internet, it’s a little bit of a different deal. A lot of people pay for that privilege, but Ms. Ford as a federal criminal defense attorney has taken this method, which I’m highly impressed with. Let’s start about how Ms. Ford and I approach a case. Indicted in federal criminal court in Oklahoma City. JF: What does it mean to be indicted in federal criminal court, Jack? JDP: The federal government, in criminal cases, does them one of two ways. One is a complaint. A complaint is just a written document supported by an affidavit from one of the alphabet agencies. One of the Is—IRS, ATF, DEA—and secret service does not go by SS. They find someone or it has been reported to them that a crime has been committed under federal jurisdiction, and you have to remember that federal jurisdiction is limited. For instance, in civil cases, in federal jurisdictions all over the country, there’s a minimum of $75,000—the amount has to be $75,000 in controversy—or a constitutional issue. If it’s not $75,000, then it goes to the state court. The federal courts are courts of limited jurisdiction, and they are presided over by what we call Article 3 judges that are set forth in the Constitution. Article 3 judges are district court judges that are appointed by the President of the United States, and they serve for life. There’s no elections, no votes of confidence; they’re actually in there for life. Federal judges—there are three judges in Oklahoma, the northern district, which takes in Tulsa; the eastern district, which is surrounded by Muskogee; and then the western district, which roughly is from west of I-35 south to the Texas border and north to the Kansas border. It’s one of the largest districts in the United States. There are 93 federal districts in the United States. All of them have district judges in varying amounts. There are also 93 United States Attorneys. Those individuals are political appointees. You may remember a case when there was recently an election. The President took office and immediately sent out 93 faxes to the people who had been appointed under the prior administration: “Thank you for your service. It’s no longer needed.“ JF: So they worked at the will of the President, and whatever that administration’s agenda might be is strongly influenced by what their US Attorneys and all of the different districts are motivated by. Is that right? JDP: Yes. For instance, here in Oklahoma City, we have a US Attorney, Mr. Sanford Coats. He has a staff of probably 35-50 US Attorneys. These people are highly experienced in federal criminal practice. There of course, is the civil section, but mainly it’s criminal that they handle. And these individuals are the ones responsible and directly connected to the alphabet agencies, and when you’re practicing federal criminal defense in Oklahoma City with Ms. Ford and I, you get an education on this pretty quick. One of the things you have to remember is—when I was talking about the limited jurisdiction of the federal government—we have interstate highways, which are nationally funded and built by states’ highways. (Little highways are enforced by Oklahoma State Troopers.) They could be enforced by the FBI, DEA, ATF—whomever—to go out there to write traffic tickets and whatever, but that’s a terrible waste of a very experienced resource. FBI agents don’t need to be writing traffic tickets is what I’m saying. JF: So what do these alphabet agencies do? How do we find ourselves in the limited jurisdiction of the western district of Oklahoma—or any court in Oklahoma, Jack? JDP: Let’s go to some examples. Federal banks that are federally insured by the FBI see if a teller, a bank officer, or someone like that commits a crime like laundering money or misincorporating it or misplacing it or misusing it, that is automatically reported by management to FBI, or secret service, IRS—it just depends on what it is. JF: And we have some experience here, right? It’s not just you get caught and you pony up all the money like we’ve seen in the past, and so they don’t say anything—no harm, no foul. In fact, there’s not a “Pay it back, and we won’t say anything” kind of deal, is there, Jack? JDP: No, Ms. Ford and I’ve prosecuted a federal court case in Oklahoma City where the individual was caught, and he paid every dime—several hundred thousand dollars back immediately. JF: Prior to the feds even knowing anything had even gone missing. JDP: Nobody was involved. We were dealing with a civil lawyer on the money, okay? And we paid the check—and of course, attorneys and civil attorneys aren’t criminal attorneys. They can’t guarantee there won’t be prosecution. So we tried to nail him down and say we’re not going to tell anybody, and we were quickly informed that this instance must be reported to federal regulators. JF: It was mandatory. JDP: Yes, it’s absolutely. Or the person would get in trouble. So we had a situation where the next thing, we got a phone call from the lawyer for the FDIC in Dallas and we got a phone call from the FBI, and we began our merry journey through the federal defense system here in Oklahoma City, Ms. Ford and I did. Fortunately for the gentleman, he received one of the few sentences I have ever seen where probation was granted. That’s highly unusual. The federal sentencing guidelines and the federal law provide that there is no longer any parole in the federal system. If you get a 10-year sentence, you’re going to do eight-and-a-half years flat. JF: Now, Jack, that doesn’t sound like easy time. It sounds a little different than state court, too. In state court, I can get a 10-year sentence, depending on the crime I committed, and let’s just say it’s a measly little white-collar crime, as people like to downplay white-collar crimes in this country. I might not serve all 10 of that in state court, but in federal court, with there being no “Good Time” credit and no parole, we’re serving every day. JDP: The state court sentence you’re talking about is probably a deferred sentence and pay the money back and so-on-and-so-forth. The sentence you would receive in federal court is not only pay the money back, but under the sentencing guidelines, we have chart and we have a table. We compare how many points are added, and so-on-and-so-forth, and then you come up with a range of punishment. That range of punishment used to be mandatory, but now it’s advisory to the federal judges. However, the judges follow it pretty closely, but I can assure you, that if it’s embezzlement from a federally-insured institution, a federal agency, beating up a postal officer, you don’t like the SEC—all that kind of stuff—that’s all going to federal, and you’re going to do flat, hard time. We have three types of prisons on the federal system. There are the camps—the ones that are so notorious that everyone calls them “Camp Fed”—I believe you try to envision yourself that in 24-hours, they tell you to get up, to go to sleep, and you do what they say. You take a banker who has owned several banks who has to go out in the morning and has to milk cows. It’s not too easy for him. Then you have the federal correction institutions—FCI. (The camp and FCI in Oklahoma—we have one in El Reno.) It’s a federal camp, and it’s also a federal correction institution. The federal correctional institution is behind wire, not walls. It’s very difficult to get in and get out of. Of course, you hear of no escapes from there. The third type of institution is basically a prison, and that would be places like Leavenworth, Kansas. And Leavenworth, Kansas is very much like McAlester—it’s a very strict environment behind walls. JF: So it’s not a place any one of our clients, future or current, want to find themselves. JDP: No. JF: This is not easy time. So, as criminal defense lawyers in Oklahoma, what do we do? What do we do to keep them from finding themselves in one of these three places? JDP: Well, it’s like any other case except for it’s accelerated. You must understand that, under the federal system, they have something called the Speedy Trial Act, and the Speedy Trial Act basically says the first time you appear before a federal magistrate or judicial officer, a clock begins to run. And that clock is 70 days. At the end of that 70 days, we’re not talking about talking to get a jury—the judge is calling the jury. You’re getting ready to try this case. JF: 70 days from indictment to jury trial. JDP: From initial appearance to jury trial.

DE: Every day I read a story, or see a video, or read a new study just to see that, you know, it really is pretty bad. And the so-called “Land of the Free” that we live in is really not so free. It’s a marketing term more than it is an actual description.

JF: Right.

DE: But the ideal is still there, and I think people are waking up to it in a lot of ways.

JF: I think people are waking up to it now, too. And it’s unfortunate that it took it getting so bad that it ended up in the back doors of everyday regular citizens to finally get jazzed up. If that’s what it takes to start making a legitimate change in our communities, both on our side—meaning when I say “our side”, I don’t mean the criminal side, as much as I’m a criminal defense lawyer, but I defend the people, right—and on the people’s side and citizens versus law enforcement, it would just be an incredible world to live in that it wasn’t like that, that it wasn’t so inherently adversarial at every single encounter.

DE: Well, and it’s not only adversarial, but it’s fraudulent. And so, here we have this system that’s supposed to administer justice, but then you go and look at the court dockets, and how many people there actually have a victim? How many people actually victimized somebody by what they did? And how many of them are on there for some—the only person they victimized was the State itself by—

JF: I offended the dignity of the State of Oklahoma…

DE: Right. By not turning my turn signal on or something like that, right?

JF: And now that should be an arrestable offense.

DE: And that kind of stuff—it makes me think that there’s just a bunch of crazy people out there, because the Sandra Bland thing happens in Texas, right? And the rationale given for pulling her over was that she didn’t use her turn signal, then it turns into this stereotypical kind of police brutality encounter, which ends up with her death in the jail. And then, not a week or two later, Oklahoma City Council’s response to that seems to be, “You know what? We need to make it easier for our cops to pull people over for not signaling when they turn.”

JF: Because clearly enough people don’t die in the Oklahoma County jail.

DE: Yes, and clearly, this cop is being questioned about the legality of pulling Sandra Bland over for not signaling, and we need to make sure that our cops don’t have to face that kind of scrutiny. And what in the world does that create in the minds of the public?

JF: It really is crazy! Right? And you sit there, and I read them every day, too, and I get on social media, and I read newspapers, and I try to keep myself really informed, but I find myself pulling my hair and thinking I can’t be the smartest person in the room! I just know that I’m not. So who are these people running our world?

DE: Right. And here we have this philosophical discussion, right? And so, I’m trying to put myself into your shoes because the discussion you and I are having right now is full of solutions. I mean, we’re looking at education. And it’s also full of respect for the actual role of a police officer.

JF: Well, sure.

DE: I mean, in my mind, it is.

JF: I don’t want my police officers to have to be, number one, trained and actually be in fear of being murdered on a traffic stop. I wouldn’t want to live in that environment, either.

DE: Right, but I think, on the other hand, I can imagine when you’re in front of the system and trying to navigate a client through that system, it’s a very different conversation—

JF: It is a very different conversation.

DE: Because it’s not based in reason. It’s based in the statutory law that’s made by crazy people who make laws like “You need to signal one hundred feet before you change lanes. Otherwise, a man with a gun is going to pull you over and assume that you’re going to try to kill him.” I mean, because that’s the situation.

JF: And when you die in jail three days later, the world will say it’s your fault because you should have signaled.

DE: So here we are having one conversation, and if you sat a police officer in the room with us, he could join the conversation and add to it. There would be a lot of just really great, reasonable solutions come out of it. However, you move this conversation to the courtroom, and now all of the sudden, it becomes this unreasonable thing that’s detached from reality, and its motives are completely suspect. So you don’t trust it, and you’re just praying that it doesn’t kill you. Literally. And something tells me that this isn’t the system that our forefathers envisioned.

JF: Certainly. You would hope not, right? And it’s sad. My clients go through this process afraid of the known, afraid of the unknown, and more often than not, I hear myself saying, “Nobody’s telling you this is fair, but I’m telling you this is legal.” And we have conversations with juries, you know? We’ve got a no-jury nullification. Why I can’t argue jury nullification is the most obscene thing in the entire world, because if we have a crazy law that, in application, is affecting the community in a manner we know it was not designed, then why then should the community—the actual citizens—be able to say no more?

DE: How about not even a crazy law? How about a law that, on the facts, apply, but in the spirit, don’t? And let the community decide, right? So you bring a guy who, the facts of the law all say that he’s guilty of breaking the law, but the jury can sit there and look at the extenuating circumstances and say, “You know what? We don’t care. We acquit.” And that’s the whole idea of our system of government is that it never assumes that the lawmakers were all-knowing and all-powerful—

JF: And able to see every possible outcome.

DE: That’s right. And so that’s why the power was given to a jury, but also that jury wasn’t given a power that can create precedents. So one guy can let go of a law, and another guy can get convicted of the same law based on the standards of a community, which is represented by the jury. And you say, “Well, that’s subjective,” and yeah, it is subjective because the only law that isn’t subjective is the law of gravity. The law of—the physical science laws. And nobody has to enforce those laws; they enforce themselves. But when we’re trying to live in a just society, when we’re trying to maintain justice and make sure people aren’t victimized, that’s upon us to put some effort into it. We need to have some flexibility to do that because the situations are different. And like you said, for it to be forbidden, for you to tell the jury that that’s their right is ridiculous. It’s not justice at all. It doesn’t serve justice at all.

JF: It’s the imbalance of power, and I think it kind of goes back to what you said. They can only have as much power as we give them, and we can’t give them more than what we have, so we’ve got to start taking the power back.

DE: And power, in my philosophy, is born of dependency. You know, you don’t bite the hand that feeds you. So if one hand on the body is feeding you, and another hand is beating you, you might not fight the hand that’s beating you because you’re dependent on that other hand to be fed. So government knows this; they know how to establish their power. However, when we become more self-sufficient, when we start taking care of our own communities—little things like doing our own charitable things, getting out to know people—the hand of force becomes a little more inappropriate. We begin to see it as something we don’t want. So, for instance, right now if a lady were making tortillas or something on the side of the road and selling them, literally a cop could walk up and shut her down. And if she resisted, he could lock her up for making tacos without the proper paperwork.

JF: And we see it with the little kids in their lemonade stands. It’s happening. These aren’t extreme examples; they’re not theoretical. It’s actually happening.

DE: To me, it looks ridiculous. Why not just let her sell those tacos or whatever she’s doing?

JF: Why can’t I assume the risk to take the taco off a truck?

DE: But the other question is, when I see that happen, why don’t I step in and stop it?

JF: Well, you know why. Because you’re getting arrested, too.

DE: Right. And nobody will support me because we’re all a little dependent on the system. And we’re all a little bit afraid that we don’t have each other’s back, too. And, you know, my life’s pretty good, so why would I want to get caught up in your drama? So what that does, that apathy just begins to create more room for the state to do the things they do. And they start with the poor, the marginal. You know, every population that is oppressed is some population the rest don’t care about that much. That’s where the roots of state power are established. So if you look in Oklahoma, the homosexual population, or the Muslim population, or the minority population, the drug users—these are people who are marginalized in some way, and when they’re oppressed, people don’t really care, because they’re not me.

JF: And it would never happen to me because I’m not black, I’m not gay, and I’m not poor, or whatever.

DE: Exactly. But what we don’t realize is that, by tolerating that or allowing the state to entrench itself with force into our communities—that force at some point, if you come up against it, you’re not going to have a chance. And nobody’s going to be there to back you up, either.

JF: Well, and it’s tough to defend yourself. My clients learn the hard way that innocence costs extra. We say it with a smile on our face, but it’s a fact. “I’m falsely accused. Can’t you just call the judge?” No, I can’t. It doesn’t work that way, and it’s not meant to continue profiting on the back of bad policies, but I find myself—if I’m really honest, I am really part of the system, and law enforcement doesn’t want to call me part of the system. But I remind them all the time that I’m law enforcement, too. I enforce the law against the government while the government enforces it against the people. But it’s a sad truth that the innocent person has to pull me up to go defend themselves more than the guilty guy who wants to just go in, get a good deal, and get out of town. It doesn’t seem like it should be right until you understand that the justice system is an unjust system, and to get the right result requires ten times the work and a lot more resources—judicial resources.

DE: And everything is pitted against the innocent person, even down to what we talked about before with the jury not being allowed to consider anything but the law. Or the facts of the case. They can’t look at the law and say, “We don’t like this law. It doesn’t apply.” They’re instructed not to do that, in fact, which to me is like, we do we even have a jury? Why not let the judge decide? But you do create that kind of…where the innocent person is at the disadvantage. Where it’s a lot quicker and cheaper to plead something you didn’t do and go on with your life.

JF: It’s a terrible reality of the criminal court system.

DE: And it’s something we need to let people know about and work on changing. We live in a new age of information. Like you said, if you’re not aware if the police violence is worse today or if we just know about it more? We do know about it more. It’s easier to get the information, and it’s also easier to get the information out. Take for instance, that civil asset forfeiture hearing that we went to, we had quite a few people show up that, in the past, before the internet, nobody would have shown up to that thing unless they were personally invited by—

JF: Somebody in the inner crowd.

DE: Right. And they would have had it at the Tulsa Police Academy, and the Police Academy would have rah-rahed their idea, and it would have gotten done. But because they can get information out to people and because people begin to see these stories, and to read these things, and to understand, I think that the human mind is a rational engine. And when it’s presented with truth that contradicts the paradigm that it’s living in, it really doesn’t like that, and it will deal with it and it will change how it sees the world in order to accommodate that information. So getting that information out to people is absolutely the most powerful thing you can do. It’s more powerful than passing a law, especially when you’re trying to pass a law in an environment where it’s not going to get passed. The goal should never be to pass the law. The goal should always be to change minds and to use the opportunity of the public battle, of the hearing, to present a truth and to get that into people’s minds so it begins to break the—I call them mental firewalls.

JF: Fair enough. I like that.

DE: So we live in these constructs in our minds, and most of them were given to us by somebody else.

JF: Parents, teachers, pastors…

DE: Yeah, these are constructs that we’ve been given. It creates our culture. Most of them we didn’t create on our own. So we don’t know why we think this way; we don’t know why a cop has more authority than a regular person. They just assume that’s the way it is because that’s the way it’s always been, but then when you start planting little nuggets like, well, is a cop a human being? Yeah? Well, where does a cop get these rights? Is he a special kind of human being? Does he get special rights from God? When you start to logically work these things out, all of the sudden, it doesn’t make sense. And this thing that I’ve held as true and as part of my identity now has a glaring contradiction logically. The human mind will not deal with that; it will either resolve it by changing its mind or it will find some way to deal with it like through drugs and alcohol. One of the funny things is, when you start talking about drug policy—we’ve been so enamored with this idea that drugs are bad and the drug wars have just cause—that when you start to challenge people on it, it’s like you’re challenging their religion. It’s a sacredly held idea that “just say no” and all of these ideas they grew up with. But when you start to work through things logically, and it starts to not make sense, I like to say that they’ll actually develop a drug problem getting over their drug problem. Because they only have one of two choices. They either have to accept the reality and adjust their frame of mind accordingly, or they have to figure out a way to cope with the cognitive dissonance, and drugs and alcohol actually work pretty well for that. So they can anesthetize themselves to the cognitive dissonance. And so, kind of in my worldview and in what I do, it’s a lot easier for me because I live in that worldview and that philosophical, real world solution where I can just spout off ideas and people can listen to them. Sometimes they get them, and sometimes they don’t. But at the end of the day, the world changes just in little bitty increments versus you who have to go up in front of a judge and convince somebody, not according to reason, not according to logic, not according to right and wrong, but according to the law, which may have been written by crazy people who don’t even have a connection to the cultural context that this case is being presented within. And that’s a much different kind of skillset. I don’t envy the stress that it has to bring—especially with a person like you who I’ve heard speak about issues and see as an activist. Having to reconcile those two worlds has definitely got to be a challenge.

JF: It certainly is, but I think we’re doing it. I always say, “Be the change you want to see,” right? And as much as there are many days I want to go bury my head in the sand, and plead ignorance, and turn up the music, and not pay attention to reality, I think what we have to do, and what we’re doing, and what I appreciate from you, for you helping us do it today, is educating people and keeping the conversation alive—not just when it’s hot, not just when the senate meetings are happening, but keeping the conversations alive and in the forefront. Because that’s what I think is how we change people’s minds, too. It’s the whole ‘90s version of Rock the Vote. I remember getting empowered and inspired to be informed by MTV! And, thank goodness, because from that, at a very young age, I rocked the vote in my little community. And I think Anna, my assistant, will tell you that I’m the reason she registered to vote. I just lit into her when I realized she was 20-something years old and wasn’t registered and wasn’t voting in local elections and things like that, because we have to be the change we want to see and keep the conversation alive and keep progress moving forward. Because we have to move forward, right? We can’t move backward, and we can’t stay still, so…

DE: We have to at least be a bulwark against the encroachment of the state onto the individual rights. And for a long time, they’ve been allowed to do it, kind of under the cloak of darkness. They had control of the media, the newspapers, the television, so the narrative was theirs. And so, all of the stories of injustice were word-of-mouth and almost like a conspiracy.

JF: Well, yeah, it was everybody’s Crazy Uncle Dennis, right?

DE: Right. Or they all looked so anecdotal that you couldn’t see any kind of systemic problem. But now with the Internet and with our ability to see things on a bigger level, we see this is a systemic problem. There is a problem with policy in our country that’s creating an adversarial relationship between the people and the police, and between the people and their government in general. It’s not healthy, and it’s only benefitting a tiny fraction of the people in our country, and it’s victimizing everybody else. You know, as more people become aware of it, it doesn’t mean the bad guys out there who are doing this on purpose—that are actually promoting these systems because they want power—it doesn’t mean they’re going to stop, but it does mean they have to adjust their tactics to be more palatable to us. And so the smarter we are, the more aware we are, the more outraged we get, the more they have to shrink back and say, “Okay.” So it’s this ongoing ebb and flow, this back and forth between people who want to live peacefully and people who want to aggressively live at the expense of other people. As you kind of do that, the more we know, the brighter we become, the more people are able to think rationally with good information, I think the better systems and policies that we’ll see implemented.

JF: Thank you so much, Dax. I appreciate it.

DE: I had a great time.

Jacqui Ford: Welcome to Your Best Defense Podcast. My name is Jacqui Ford, and I’m here in the office today with my friend, Dax Ewbank. Dax, how are you doing today?

Dax Ewbank: Just great. Glad to be here.

JF: Thank you for coming. I think we’re going to talk about, overall, what’s going on in the world today and kind of a broad overviewing topic of the militarization of police and how it’s changing the world that we live in.

DE: Absolutely.

JF: And not just within our communities, but within the judicial system and what is oftentimes referred to as the “justice system”. How it’s maybe lacking and doing more harm rather than good.

DE: And it’s happened in recent history, I think, because I’m not that old. I was a high-schooler in the 90s, and I can remember, in our small town, our relationship with our small-town police department was much different than anything that I see today with people—how they relate to the police. Back then, we were the typical teenagers. We’d run around, cause problems, party, and all those kinds of things, and the cops were there, but we knew them by name, they knew us by name, and the biggest threat they would have that would really keep us in line was that they’d go tell our parents what we were up to.

JF: Right?

DE: And it worked. And that was the kind of relationship that we had with them. Now, if they needed to arrest somebody, they could. But that rarely happened, and most of the time, the way they kept the community safe was by knowing people. I can still remember one of those guys that literally walked the main street and checked the doors, kind of that old school policing that you read about now but don’t really see anymore. And just in the last 20-25 years, we’ve seen a radical change in the personality of the police and especially that relationship between the police and the public. I think they still try to maintain that “we’re here to help” PR. But when we start to look at—“How do I really feel around a cop? How does the general public really feel around a cop?”—it doesn’t have that same “I’m going to run to you when I’m in trouble” kind of attitude. It’s become more of a “If all else fails, this is the nuclear option”. And it seems like an unfortunate thing, because these are civil servants, and the ideal situation is that these are heroes that will step into a violent situation and put themselves at harm in order to bring peace to whatever the situation is in their community. Yet, because of the way law has changed, because of the way policy has changed, they’ve become more and more of an aggressive force where they’re stepping in before anything violent has happened, before anybody’s been harmed, before any fraud has taken place, before any crime is even known about. We’re seeing this thing where law enforcement is stepping in and kind of initiating an aggressive interaction with the public.

JF: That makes it kind of scary now to interact with law enforcement, and I have this kind of conversation with clients often, and with friends. What do we do moving forward? My law enforcement friends say they feel it’s a war on the police and that the whole world is coming against them. So they’re feeling threatened, and the communities are feeling threatened, and we’re all walking around in fear. This can’t be good for society, and I don’t know where the answer is. I don’t know if we have more police brutality now or if we have more awareness of it because of social media and everybody having a video camera in their purse and pocket. And does it really matter? I don’t know if it does. I don’t know if it makes me feel better that it’s increasing or that it’s always been like this, and now everybody just knows about it, so now we’re offended. I’m not comfortable with either one of those responses, and I don’t know how, as a society, we move forward. And being on the other side of the “us against them”, I’m generally perceived as being very anti-law enforcement. People generally believe that I just hate them. And I think that people that know me well enough know that clearly that’s not true and I have lots of law enforcement in my family. But I do hold them to a level of standard greater than I would hold a regular civilian. I think that you have to.

DE: You have to, especially in our environment because law enforcement is a position created by government. So the policy defines what they are. Whatever government policy is created, that’s what defines what a cop is and what a cop can do. And ultimately, that is what defines the relationship between that created entity and the public. I tend to think that the abuse has gotten worse, especially from the violent, where the police are being more aggressive—anecdotally and from studies that I’ve read (some Radley Balko and other research that I’ve looked at). Let’s look at what used to consist of a felony warrant, or serving up a warrant, or a search warrant. I read a story not too long ago, where it was basically one or two cops would show up—one, if they didn’t think it was going to be a problem, and two if they did. Now look at what it looks like. That was in the ‘70s, and it was a cop telling a story about how he used to roll up, and if the guy answered the door, they’d arrest him, and if he didn’t come to the door, they’d call for backup and go on in and get him and have one or two cops come with him.

JF: Now they’re showing up 20 deep with a squad team.

DE: And that’s on the first call, so they’re doing that as the go-to instead of the last resort, so they’ve been equipped for that. They’ve been trained to do that, so that’s what they do. And they’ve been authorized to that.

JF: That, I think, is really the core problem, and if they are granted this ability to enforce the laws, and that power comes from the government, and the government is training them, and the government is blessing their actions, then we really do have a government problem and not just a cop problem.

DE: So when people say, “Oh, you just think all cops are bad,” I say, “No, actually I think the job of cop has become bad,” and what I mean by that is that the statutorily created job of cop has become a bad thing in our society—not that the guy who has the job of cop is necessarily a bad person. I think there are a lot of cops out there who want to do that right thing and have that idealistic notion of what it means to be an officer of the peace or a person that provides that service that we want in our communities. But because of how the job has been defined, it’s almost impossible for them to fulfill that ideal.

JF: Well, and today’s law enforcement officers testify regularly that that, in fact, isn’t their job. That they’re not here and designed to serve the communities. I was kind of challenged by one to “Find me a law enforcement officer who thinks that’s his job,” and I started watching and looking at police cars and state trooper cars in our communities and other communities, and what you see here is not “Oklahoma City Police, here to protect and serve”. You see “Oklahoma City Police, criminal law enforcement”.

DE: And it says on their cars, “We serve with pride”, which is a whole different statement than “To protect and serve”.

JF: Absolutely. And their training now is so different. It saddens me to listen to law enforcement officers talk to me about their attitudes and the way they are trained to approach cars. In just a basic traffic stop, our law enforcement officers are trained to believe their lives are in danger and this person is likely going to kill them. The regular, average Joe that they’re pulling over for a traffic violation is being greeted by a law enforcement officer ready, willing, and prepared in that moment to shoot and kill them. That’s terrifying for someone who maybe gets pulled over more than the average person.

DE: That right there, you talk about how many interactions law enforcement officers have with the public a year, every day. And when every one of those interactions is approached with that mentality, what do you expect to be the approach to that? Is that going to foster a good relationship? Is that going to foster understanding? Is that going to foster anything other than contempt? I mean, that’s what it’s going to do. If I approached everybody with that, I wouldn’t make a lot of friends. So this idea that there’s a war on cops and this idea that the public has that cops are at war against us is all driven by policy. It’s all driven by this idea that government can grant cops this authority to do things other people don’t have the authority to do, which in and of itself is a philosophical mistake. If we believe that we live in a government that gets its authority from the people, then that government can only have the authority that the people had in the first place to give. So a lot of people say, “When we see these police brutality videos and things,” inevitably there’s someone who says, “The kid shouldn’t have done this” or “The kid shouldn’t have done that” or “The kid shouldn’t have talked back to the cop”—and so they end up justifying this behavior, and they throw in the whole “Well that cop doesn’t know if this guy wants to kill him or not” and you’ve seen all of those conversations pop up. But the bottom line is that it’s a very simple standard that needs to be applied. And the standard is, if I as not a cop were in the same situation, would I be morally justified to do what the cop did? If the answer is no, then the cop is just as wrong as I would have been in the same situation, but somehow because of our kind of warped view of what a police officer is and what they’re allowed to do, when we look at that, we look at it differently. We say, “Because he has a badge and gun, it means he gets to do things that I wouldn’t get to do.” All of the sudden, you’ve now created another class of citizen. A class of citizen that’s protected with different rights than the rest of us, and it shows. Look at how they park their cars and how they drive their cars. They get to wear their guns on the outside of their pants; the rest of us don’t get to do that. All of these things define this cop as a different kind of citizen than a regular person. The thing we really need to start thinking about: Is that really the kind of world we want to live in? Because that is, by definition, a police state.

JF: I think a lot of the justifications for this, as I’ve seen it in my career, is… People come in—a higher class of clientele, if you will, generally white, middle class, privileged—and their rights have been violated by a police officer. They or their child has been arrested and experienced some of the most horrifying things a person can experience at the hands of local law enforcement and being taken to our fine Oklahoma County Jail, which is not equipped to house animals, let alone live human beings. And they come out, just outraged, with righteous indignation at “How this could happen to me?” I often find myself telling them, “Because you were okay with it happening to these other people because of who they were, and they were a smaller citizen in your mind, and they maybe deserved it.” And we talk about criminal defense lawyers and why it is we do what we do, and I’ve always shared if I don’t protect the fringes, the weakest of our class, then how can I protect those of us who are not living in the fringes? I think what’s happened is, we’ve all been okay with the poor, and the minorities, and the poverty-stricken to have their communities run like a warzone. And when their communities are run by military-style law enforcement that is set up every day to arrest, charge, and imprison its citizen, that eventually those citizens will be locked up, and where do they go? Now all of the sudden, it’s beating on the back door of middle-class America, and now they want to care. So my struggle is, what do we do? How do we move forward? I’m not sure that we get to take steps back. It’s 2015, and we’ve given this power. How do we take it back? And with any government bureaucracy—any committee that’s designed to never solve its problem—

DE: The solution is always to make the bureaucracy bigger.

JF: Right.

DE: If we just had more power, then we’d be able to solve the problems that we have.

JF: Because if we solve the problem, then we’re out of the job. So there’s really no incentive to solve the problem, and I think that’s how we end up with a million agencies beginning with “D” and ending in “S”, and everybody’s got their acronym, yet none of our problems are being solved. And I don’t know how we step back in our relationship with government law enforcement and say “Stop. No war” without almost a revolution, right? That’s what’s required to affect serious change sometimes, and that’s a scary concept to me. I think it’s a scary concept to a lot of us to think that the bubble’s going to explode. How do we bring it down to something that’s manageable?

DW: I’m a little more optimistic, actually, about what we can do. The idea that we can make change without pitchforks and riots on the street. The fact of the matter is, people have to be educated, first of all, to understand the appropriate role of government, the appropriate role of a police officer, and to be able to see it appropriately. The other part of it is, none of these agencies can operate without money. Fortunately in the law enforcement world, a lot of that money comes from the drug war. What we’re seeing nationwide is a change in the ideology and the way people look at marijuana, for one thing, and if we see those laws begin to change is that law enforcement policies are going to change along with it. That money, the cartel money, the cash, the forfeiture money they get—people are starting to see that it just doesn’t make sense. It doesn’t work. And see? That’s why I believe that when law enforcement is violent in the fringes, people just kind of let it go. But what we’re seeing is that they’ve used up the money—all the poor people are kind of broke. I used to be a pastor, and I dealt with lots of poor people, you know, people that didn’t have a lot, and their interactions with law enforcement—you could see that they were being milked for everything they had.

JF: It’s the war on the poor.

DW: Yeah, if they got pulled over because their tag was out on their car, their car got taken away from them. Now, if I got pulled over and my tag was out, the cop would tell me to go home and get a new tag. Right? He’d write me a ticket and say, “Get this taken care of.” But my poor friend who’s living in Section A housing, if he gets pulled over, his car’s impounded, and before you know it, it costs more to get it out than the car’s worth, and now it’s just not his car anymore.

JF: And he’s gone to jail, lost his job, and probably lost his apartment…

DW: I remember a story of a gal who got in trouble right after a divorce for writing some hot checks on a joint account with her husband, and she got pinned with it—about $800 worth of hot checks, which turned into about $5,000 worth of court fees and everything else that she ended up owing back. She’s getting arrested every week for a warrant, and a lot of the times, these things weren’t legitimate. Like, she had paid the bill, but the computer record in the cop’s car wasn’t up to date, so they arrested her anyway. She’d spend the night in jail, she’s have to go home, and then the next morning they’d say, “Oh yeah, you’re right. See you later.” It’s because, in that situation alone, the DA gets the money off of those hot checks. So he’s using that law, which everybody thought was a great idea to help fund the DA offices by letting them keep the money from these hot checks. Well what they did was render them monetizing poor people who wrote hot checks and turning it into this cycle where they’re continuously in the system and continuously owing money. And then guess who are the last people to get made right in that situation?

JF: The actual person the check was written to.

DE: Exactly.

JF: The victim is the last person the government cares about.

DE: And so, all of policy—and it goes down to the policing, because ultimately the cop was getting the girl in for the warrant, or whatever—so that policy ends up creating this literal war on the poor, just taking everything they can get to fund their departments, fund their offices, do everything they can. The drug war—you add that on top of it—the civil asset forfeiture, which is a derivative of the drug war.

JF: Which is clearly policing for profit. Nobody can say it’s not. Law enforcement’s not even saying it’s not. They want that money, they want it to stay with them, and they want to use it to continue the war on drugs, to continue to arrest more people.

DE: Right. And they’ll blatantly say it. “We have to have the ability to take people’s property when no crime was committed. Otherwise, we won’t be able to fund our addiction.” I just read a quote the other day from a law enforcement person, where that was their defense of that policy. “If we can’t literally steal things from people who have committed no crime, then we’re not going to be able to do our jobs.” And I’m like, “What really is your job then?”

JF: And that’s definitely the problem, right? What is the job of law enforcement, and it’s a full-circle argument where they do this dance all day.

DE: Right. And the policy again has created an adversarial relationship, and it’s born of bad philosophy in the minds of people that we expect that government has the right to authorize law enforcement to steal your stuff, which was never, ever in the minds of anybody who created this country. It wasn’t this idea that, arbitrarily, just based on a hunch, that I could just take your stuff. The constitution specifically forbids the government from being able to do that, and yet here we are.

JF: It’s happening every day.

DE: Every day. Billions of dollars.

JF: And it’s not really drug money—it’s drug money from fellow citizens.

DE: Well, don’t get me started. I don’t even care if it is drug money. Who’s the victim? That’s the question. There isn’t one. The victim is the person who is being victimized by law enforcement. That’s the victim. So we’ve created, literally, a situation where the government is preying on the people. And when I say I’m optimistic, I mean, I’m not thrilled with where we’re at now, but then I see things from people like Kyle Loveless with the civil asset forfeiture reform. Kyle and I don’t really agree on a lot of stuff—he probably didn’t even vote for me.

JF: Fair enough. I’m not sure that Kyle and I agree on a lot of things, either, but we do agree on civil asset forfeiture reform.

DE: Right, and because when he looks at it, he’s like, “Man, something doesn’t look right here,” and it appeals to his natural sense of justice. No, this is not justice.

JF: Doesn’t even pass the sniff test.

DE: Right. It’s just like, “No, really. This can’t be what we do.” But the more you dig into it, not only is it what we do, but what we do is a lot worse than this.

JF: Right.

DE: When I see people like that, what it tells me is that he has support. People are beginning to support him. You see, laws don’t change what happens out on the street. Laws don’t change the people; people change the law. So the laws will reflect what the public is ready to expect. And I think we’re starting to see, with marijuana decriminalization, is that the people are starting to see—the country, Colorado and Oregon and all of these places—are seeing positive effects from a freer market and taking that market away from the drug cartel. Doing so is creating a lot of good in their communities. I think if you do that—the civil asset forfeiture reform—we’ll start to see some reeling back of this police state. You know, at some point when they become so aggressive, people start to feel the pain. And at that point is when they’ll say they don’t like this.

JF: So you’ve still got hope?

DE: Yeah.

JF: We can hold on to your hope, then.

Brad Post: You’re listening to Your Best Defense Podcast. We are speaking to Oklahoma City Criminal Defense Attorney Jacquelyn Ford. Jacqui, how are you?

Jacquelyn Ford: I’m doing well. Thank you.

BP: Good. Well, we’re just going to jump right in because it’s going to be an interesting podcast. Let’s talk about when you have a typical interaction with police. Basically, how to not get arrested. Let’s talk a little about that.

JF: Fair enough. I think the best way to avoid being arrested, clearly, is to not engage in criminal activity. But second, I advise people to avoid contact with law enforcement officers as much as possible. You can’t get arrested if you’re not in their presence, right? And you can’t get arrested if they’re not coming for you. Unfortunately, we live in a world, I think, that is different than where we lived even when I was growing up. This isn’t Mayberry anymore, and law enforcement’s position is no longer to protect and serve the public. I know that. I’ve cross-examined them. They have testified to this under oath. Their mission as today’s modern-day police is criminal law enforcement, not protecting and serving the community. So when you have that in mind, you need to understand that they are not necessarily your friends, and calling them and inviting them into your life may result in a less than pleasant experience. A lot of times the police get called because there’s some sort of domestic situation, and you and your old lady are fighting or he’s being a jerk, and she’s being crazy, and somebody wants somebody to leave. The fight escalates, and somebody eventually calls the police. Well, if you’re not in fear of imminent bodily harm or danger, there are probably bad things that are going to happen based on that phone call. A domestic situation has arisen; law enforcement is on their way. They are on their way armed and ready to defuse a highly stressful situation, which puts them at great stress, too. It increases their alertness, and they are there, you would hope, to just help you defuse. But more than likely, someone is going to get arrested. So how do you not get arrested? Don’t call the police on yourself. Don’t call the police on your loved ones because you’re mad and want to teach them a lesson. You should really reserve calling law enforcement into your life when it’s the last option, when you can’t resolve it in any other way. So I think our problem in this country right now is that we don’t know our neighbors, we don’t know our law enforcement officers. We don’t get to interact with them all the time, so they’re not your friends. They used to be, but now they’re not. They are here to arrest and put bad people in jail. When you know that’s their mindset, and that they approach every single interaction with you ready and prepared to kill you if necessary, then maybe think twice about inviting them in unnecessarily. Does that make sense?

BP: It does. Let’s talk about a typical traffic stop. You get pulled over. The police come (hopefully you have your seatbelt on), and you’re in an area where they can come directly to your car. What are some ways to respond in that type of situation?

JF: I advise everybody to handle law enforcement officers with respect. They are not approaching that car expecting to encounter a good, law-abiding citizen. For whatever reason, in their training (and I know this from their own words and from speaking to their training officers), they are approaching a normal traffic stop assuming you are a bad person and their life is in danger. Now, I don’t like to function under fear. We know what happens to our bodies when we’re in fear; we have two options, fight or flight, and let me tell you something. You can’t flee the police during a traffic stop because that will make it worse, and you also can’t fight the police officers in a traffic stop. So we need to make sure that we’re not functioning from a place of fear, number one. Number two, answer only the questions that are asked of you, and don’t try to explain anything. You have to be kind of careful of some of the questions they are asking, because their questions are designed to be very conversational, but what they’re doing is seeking probable cause. They’re asking you questions to determine whether or not they believe you’re up to good or no good.

BP: And these are kind of cop tricks, right? Them interviewing and asking questions?

JF: Right. And this is how they’re trained, and it’s been accepted by most courts most often. So when you know that cops are allowed to lie to you—and they are allowed to lie directly to your face—and nobody is going to do anything about that for you, then you now have to be suspect about some of the things that law enforcement is saying to you. They are not usually there to help you out of a bad situation, right? They have you pulled over, you’ve already violated the law in their eyes. Their goal now is to get into the car, search the car, see if there’s more criminal activity going on, ask you a battery of questions, ask your passengers a battery of questions. My advice to clients is this: if you’ve been pulled over on a traffic stop, treat the officer with respect. He hasn’t done anything to you to earn anything other than respect. And he may or may not be respectful for you in return. That doesn’t matter; we can’t control that. So you provide your driver’s license and insurance verification. As the follow-up questions start coming in, I often tell my clients to politely refuse to answer those questions. Where I am going and where I’ve been aren’t relevant to whether or not I’ve been speeding. Those questions are designed to ask me and my passenger what’s going on because, in their training and experience, those answers not matching up give them what they believe to be probable cause. This starts working toward probable cause to search your car, search you, and eventually arrest you. So these questions are not necessary for the purpose of their traffic stop. I advise my clients to politely say, “I’ve given you my license and registration. Is there anything you need from me to complete this traffic stop?” Now, depending on the temperature of our officer, that’s either going to be received well or not well. We have business cards in our office we’ve printed out based on Supreme Court cases and cases dealing with answering law enforcement questions. A lot of times clients get frustrated because they say, “Oh, I wasn’t read the Miranda.” Well, your Miranda Rights are only applicable if you are in custody and being interrogated. So they don’t have to read you Miranda Rights to ask where you’re going, where you’ve been, or your travel plans. What I tell my clients to do—and it’s on the business cards. I’ll just read it to you. It’s on the back of the card we provide clients in the office. It says, “On the advice of my attorney, I respectfully decline to answer on the basis of the Fifth Amendment, which according to the United States Supreme Court, protects everyone, even innocent people, from the need to answer questions if the truth might be used to create the misleading perception that they were somehow involved in a crime that they did not commit.” Is this going to be well-received? I guess it just depends on the police officer. The police officers who aren’t going to like the tone of this podcast are the police officers who won’t like the tone of that response. But always keep your own personal cool. You can’t help escalate the situation. We’ve seen it on videos and the CopBlock of how these people are trying to avoid answering questions at DUI checkpoints. The fact of the matter is, you have the right to refuse to answer those questions. If they want to arrest you, you have the right to refuse to answer questions then, too. If it’s going to get worse before it gets better anyway, then stop talking. That’s a huge problem that people have. You have a very important Fifth Amendment right to remain silent. It’s in the United States Constitution—in the Bill of Rights. And it’s there because it’s a very important right. Exercise it! The less you say, the less information you can give them to either rightfully or wrongfully believe that criminal activity is afoot. So I tell my clients to be respectful, answer the limited number of questions regarding your driver’s license and insurance. The rest of it, you really just need to keep your mouth shut. “Officer, I’d like to not answer those questions at this time. Is there anything you need from me for the purposes of this traffic stop?

BP: Usually are they required to tell you what they pulled you over for?

JF: Yes, I think most police officers know they have to tell you—they’re going to have to tell somebody why they pulled you over. It’s going to be in the PC affidavit at some point. So yeah, they should tell you why they pulled you over. Often they like to ask questions like, “Do you know why I pulled you over?” That’s a tricky one. I’m asked that question—I have a lead foot and tend to get pulled over a lot—and sometimes, I say, “Yes, Officer Smith. I was speeding. I apologize.” But I feel very comfortable interacting with law enforcement, and I also understand that me acknowledging the fact that I was speeding is probably going to help me move the situation along. Sometimes maybe I don’t know why I got pulled over, or sometimes I think it was speeding but I’m not sure, so sometimes I say, “No, Officer. Why did I get pulled over?” because maybe he pulled me over for something besides speeding and now I’ve just ponied up to another crime and I’m not taking my own personal advice. So do as I say and not as I do. But I don’t like answering the question “Do you know why I pulled you over?” because the much more appropriate thing is the officer telling you why he or she pulled you over.

BP: When do you consent to a search if they want to search your car?

JF: My advice is always don’t consent ever. People ask me why, and because unless nobody else has been in your car for the entire time you’ve owned it, then you probably don’t know everything that’s in your car. And law enforcement doesn’t ask for your permission unless they need it. They don’t have a right to search your car without a warrant first or your consent. They must be able to, in the future in legal documents, articulate reasonable facts that gave them a reason to believe that criminal activity was afoot before they searched that car. That right is so important. Why just give it away? That’s my position on consent: why just give it away if people literally have lost their lives defending it? So, I generally advise not to consent to a search. Sometimes, if you know the dog’s coming anyway and you know you’re about to get busted anyway, people wonder what to do. If it’s going to happen, let it happen. Don’t let your own words “put you in the pokey.” Don’t say, “Oh no, please, Officer. Don’t search. Here’s the marijuana in my console.” You’re hurting my ability to help you in the future. And law enforcement would disagree. They’ll say you’re cooperating and they’ll tell the DA. But that’s absolutely not true. I’ve represented well 5,000 criminal defendants, and not one district attorney has said, “You know, your client confessed and handed over the smoking gun, so we’re just going to let him slide on this one.” That’s a cop trick, the idea that they’re going to work with you on this one and make this better for you. They can, theoretically, by not arresting you, but what law enforcement officer do you think is going to not arrest you with the marijuana or the smoking gun in your car? So, my advice? Don’t consent. My advice with respect to making voluntary statements? Don’t do it. If you’re going to make a statement to law enforcement and you don’t have a lawyer with you, you’re doing yourself an incredible disservice. Call me. I have taken my clients in and made statements before, but those are strategic, thoughtful, meaningful decisions that we made together, not in a fast environment, not on the fly. You have to have the advice of counsel, and you have to have somebody representing your interests when you’re talking to law enforcement, because they are not there to represent your interests. So you’re protecting your Fourth Amendment right by not consenting to a warrantless search. Good job. Protect your Fifth Amendment right by not saying anything that can be used against you because they will, if they can, use it against you. It’s not that it might be used, it’s that it can and will be used against you. And the third important right is your Sixth Amendment right to an attorney. That’s why you don’t talk without a lawyer, and it goes back to why do you hire a lawyers? Because we have these important rights that have to be protected against government intrusion. The Fourth, Fifth, and the Sixth Amendments specifically apply to all of my clients, so you never want to waive any of them without the advice of counsel. You have the right to record law enforcement. I tell all of my clients to have a recording mechanism on their phone—and I don’t mean your phone’s recorder, because unfortunately, not all officers but some officers will take your phone and destroy that. So I advise my clients to put some sort of app on their phone (and there are plenty through the app store) that allow you to record law enforcement. That recording is sent via the Web to a streaming service, and it’s there if and when your phone gets “lost” or “broken” or “misplaced” in the evidence room. I believe that any law enforcement officer who’s doing his job and doing his job right would want that, too. I advocate very strongly for police cameras—body cams, dash cams, interior car cams—because it protects everybody. It’s not designed to punish the officer; it’s designed to protect the citizen accused.

BP: All right. You’ve been listening to Your Best Defense Podcast with Attorney Jacquelyn Ford, and you can see her website at www.fordlawokc.com.

Brad Post: Welcome to Your Best Defense Podcast. We are speaking to Oklahoma City Criminal Defense Attorney Jacquelyn Ford. Jacqui, how are you doing today?

Jacquelyn Ford: I’m doing very well, thank you.

BP: Good. We have some specific topics we’re going to talk about today, and we’ll just jump right into it. Why would someone need to hire a defense attorney?

JF: Well, certainly if the government is accusing you—or if someone is accusing you of a crime or a wrong against them, you’re going to need someone to be able to defend that. So you want to hire a defense attorney because what criminal lawyers do is very different than what divorce lawyers do. What criminal defense lawyers do is very different than what a car wreck lawyer does. The law is very different, and how we get things done is very different. If you’re hiring a doctor, you want to hire a doctor who specializes in what you need. So you hire a criminal defense attorney to stand up against the man.

BP: This kind of brings up my next question—when to hire a criminal defense attorney.

JF: I think the answer to when is early. As early as you can. There are different things lawyers can do at different stages of the proceedings, and one of the things that our office provides that a lot of criminal defense lawyers don’t provide is something we call pre-filing representation. It’s during the investigative process. While law enforcement is investigating and making a decision on whether or not to file charges, you should have a lawyer right then. You should have someone advocating on your behalf long before they’ve filed the charges and the warrant has been issued, you’ve been arraigned, and now the ball is already rolling. If you’ve waited that long, it’s okay, but certainly if you know that charges might be coming, I would encourage you to contact a criminal defense attorney right away because there are things we can do on the front end to maybe keep the charges from being filed, negotiate an appropriate charge that would be filed. And the people who are making the decision—you know, the District Attorney’s office—the more information they have, the better, more informed decision they can make, too. So they appreciate it when counsel comes forward early, and it shows a lot of things about the client. It shows they are very interested in taking this seriously, that they are going to step up and do what they need to do. It shows initiative. These are all good things. A lot of people, I think, are afraid that hiring a criminal defense lawyer, especially before charges are filed, might mean that they look guilty or something. I’ve heard that, and I think that’s a very unfortunate misperception. My friends in law enforcement, if they’re in trouble, they’re hiring a lawyer early, not late. Part of the things that we do in a pre-filing representation is that we check every day. When we’re representing someone on a pre-file basis, we check warrants morning, afternoon, and evening. Anna, our office manager and my assistant who we adore, takes that part of her job very seriously. She has a list, and every morning when she comes in, it’s one of the first things she does. Do we have any live warrants today? That matters because, if the warrant has gone active, then you don’t have to wait for them to come get you. We can help set you up with a bondsman and do a surrender. It’s a much less traumatic experience for the client. We set you up with a bondsman, they take you over to the jail, and it’s all pre-arranged—it’s called a walk-through. So you’re not being arrested and placed in handcuffs and dragged downtown in the back of a police car. They’re not showing up at your home and taking you from your family or your job. You are self-surrendering, so it takes some of the trauma and the stress off of the client too, to be able to do it that way. We notify the client and arrange for a surrender, hopefully within 24 hours. We don’t ever want to be seen as fleeing or running, but clients have to make arrangements with their jobs and their families too, so we make arrangements and they surrender that morning. If the charges are here in Oklahoma County, you are arraigned that afternoon—every county does things differently. But you will know what’s going to happen. My best advice is to contact a lawyer as early as you can so you can start getting good advice. The sooner the better. It’s not going to help you to wait because the waiting creates the snowball, the traumatic arrest, the traumatic experience. The people don’t know how the system works. That’s why you hire a criminal defense lawyer—this is what I do every single day. I know how it works, and if I don’t know, I know the person to call to find out.

BP: All right, you’ve been listening to Your Best Defense Podcast with Attorney Jacquelyn Ford, and you can check out her firm at www.fordlawokc.com.

Brad: Alright, welcome to the Your Best Defense Podcast. We are sitting with Jacquelyn Ford, also known as Jacqui Ford. How are you doing?

Jacqui: I'm doing very well, Brad, thank you.

B: Good. Well, we're glad to be able to talk to you today. Jacqui what is one of your goals when dealing with your clients?

JF: My goal for my clients is just very different. I believe in quality representation over quantity of representation and for each person that walks in this door, my goal (and my staff is fully aware of this - this is part of our mission) is that when you walk out of our services you walk out of here a happier healthier person than when you walked in. And if I can benefit just a single person in that way then my role here on this earth has been fulfilled. That's our goal. We don't want to treat our clients like a case number. I know your name. I know your wife's name. I know your husband's name. Sometimes we know your children's names. It is a personal relationship that we build with our clients because the criminal justice system is incredibly scary. It comes with a lot of things that people don't think about. It's not just that you've been caught doing something wrong or even that you've been wrongly accused of doing something wrong. When you're accused of a crime, especially a felony crime in the State of Oklahoma, it damages your reputation. The consequences of a quick plea or a quick resolution to run you through the system is lifelong. I don't think that many people know that. It's important for me that my clients know it. So every initial consultation that we have there are some ground rules that are laid out. The first ground rule is always this: I am here to help you. I will not lie to you and I will not sugar coat your reality. I'm very very upfront. I believe it's important that we have an open line of communication so that there's a level of trust. I'm never gonna be the lawyer that you see in the street that represented you five years ago and you say, "oh my gosh that awful woman told me this and the reality was that!" That's very very important to me. Being upfront and honest with my clients is the most important thing because there has to be a level of trust. I believe that when you pick a lawyer to represent you in a criminal defense matter that it is as important if not more important than the surgeon you might choose to conduct brain surgery. You are quite literally placing your life, your liberty, and your freedom as well as your future life liberty and freedom and that of your family in my hands. I take it very very very seriously and my relationships with my clients are top priority. It is a rule in my office, if you are to choose to hire me, that we walk into the courtroom with our heads held high. I do not walk in shame with my clients whether they're guilty or not guilty. We work in a criminal justice system that I believe in 100%. The presumption of innocence exists. The government bears the burden of proving our guilt beyond a reasonable doubt. And if and when the government has met that burden, I accept that and sometimes we have to go forward to the next stage which is oftentimes sentencing. When I walk into a sentencing with one of my clients, we do not walk in with our head held low. We don't do it in shame. We are exercising our constitutional rights and we will do it with pride. My clients are never standing alone. They always have a hand that's being held with them, and arm around them, and a shield before them. Because even if you are a convicted felon, even if you did make a mistake, even if you did do something that was against the law, it does not have to define you. In our office, it does not define you. Who you are as a person defines you and how you handle the adversity defines you. My goal is that we handle this adversity together, we do it with respect honesty and professionalism.

BP:What motivates Jacqui Ford? What motivates you?

JF: What motivates me is when my clients walk into that room that they're not David fighting Goliath all by themselves. They have an advocate. They have a friend. And most importantly, they have a voice.

B: That's great. Good stuff. You've been listening to Your Best Defense Podcast with Oklahoma City Criminal Defense Attorney Jacqui Ford. You can find out more at FordLawOKC.com

Brad: Alright, you're listening to Your Best Defense Podcast. We are sitting with Oklahoma City Criminal Defense Attorney Jacqui Ford. Jacqui what makes you different from other attorneys out there?

JF: I think one of the things that makes me different is I understand the hard knock life. And I don't have to sit here and tell you my stories, but to understand that I've been in handcuffs, I've been in jail, I've been falsely accused of things, I've been rightfully accused of things. I understand how easily it is to sit on the other side of the table from me and that's how I try and treat my clients. I treat my clients the way I wish I had been treated. I try and treat them the way that if it were me having made a mistake and gotten caught, or if it were me having done something willful vicious and mean and looking back with regret. Those actions don't have to define us. I try and treat my clients exactly the way as I would have myself treated if I was on the other side of the table. And it's easy for me because I've been on the other side of the table. I have been a person who didn't have a place to live. And I have experienced both myself and from those that I love and care about every possible side of the pits of Hell of addiction. I've seen my family struggle with alcohol. I myself have struggled in the past with drugs and alcohol and it's not something I tend to tell the rest of the world but I tell all of my clients. And I tell them that because I want them to know that they are not sitting in a room with somebody who is judging them. That is not what happens here. There is a place for that and it's not here. Our goal is not to judge you or criticize you. Our goal is to listen to you, help you determine what your needs are, and facilitate meeting those needs. So that when you walk away from this process - and you will walk away from this process - that you walk away feeling better about yourself. That you're stronger. That you're more confident. That you have the tools and the skill set to be able to combat whatever your demons are that got you here. Whether they're yours or somebody else's. Our goal is for you to walk out of here knowing that if you want to go do whatever that you want to do that you can do it. Because if I can go from being a homeless street kid with a drug problem to a very successful well respected lawyer, then you can do it too. I have nothing special going for me. All I have is a good number of people who looked out for me when I needed it the most, a couple of people who reached out their hand when I needed help, a lot of good luck and a lot of doing unto others. And that's what I believe in. I don't believe in preaching. I believe that everybody should have their right to have whatever faith and belief that they want. The message that people receive from my office is we are an office of love. We give what we expect to get. We embrace everybody that walks in here and treat them with respect unless and until they do something to lose that. You don't have to earn it from me. You don't have to come in here and convince me that you're worthy to be fought for. I already know you're worthy to be fought for. That's why I'm here. All you have to be able to do is be able to trust that I know where you've been, and I have enough experience both personally and professionally to be able to guide you into the best path. I don't define my clients as being something less than me. I consider them my friends for the most part and some of them, quite frankly, I consider family.

BP: You've been listening to Your Best Defense Podcast with Attorney Jacquelyn Ford - Jacqui Ford - Oklahoma City Criminal Defense Attorney.

JF: Thanks Brad.