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The nature of this column demands that I begin by explaining my reason for writing it. I have written before about abuses of power by police and courts, and now I’m going to write about it again.
But in this case the victim was me, and I want to state clearly at the outset that I’m not using my platform as a columnist to further a personal grievance. Rather, I’m writing this column because what happened to me also happens to others–people who don’t have a voice. And I want to report the ease with which a police officer can randomly bully a citizen, supported by the courts.
On February 18, I drove from Phoenix to Tempe late in the evening. I left my apartment in central Phoenix around 11:15, and headed east on the 202. Traffic was a little heavier than is usual for that time of night, but it still wasn’t very busy. I was driving at the speed of traffic.
I was a couple of miles from the McClintock exit, where I intended to get off, when a car came up behind me and began to aggressively tailgate me. I was dazzled by its headlights and couldn’t see the driver. Irritated, I hit my brake and slowed down. I’d expected the guy to change lanes and pass me when he realized I wasn’t going to speed up for him. Instead, he kept tailgating me, getting so close that I couldn’t even see his lights as he came close to my rear bumper. Realizing that he was even crazier than I, I got on the gas and accelerated to get away from him.
He turned on his emergency lights and pulled me over. He was DPS Officer John Anunson.
I was furious at the recklessness of his driving. I thought he’d pulled me over because he was pissed at me for slowing down when he first tailgated me. I got out of my car and asked him what the hell he thought he was doing.
“Do you know how fast you were going?” he asked me. He had the snide, bullying, swinish manner of a stereotypical Southern sheriff.
“No,” I said. I hadn’t been looking at my speedometer. But I hadn’t been passing cars, so I didn’t think I’d been going particularly fast.
Instead of telling me how fast I’d been going, Anunson asked for my driver’s license and proof of insurance. I handed over the documents. Then he asked if I’d been drinking. I said I’d had a couple of beers earlier in the day. He tested my sobriety by moving a pen in front of my face and getting me to follow it with my eyes.
I passed the test. “Disappointed?” I asked him.
He looked at me without saying anything. Then he told me, “You were going 77.”
I almost laughed in his face. My car is a Ford Aspire. What it “aspires” to is being a real car. It’s tiny. It has three cylinders. The only way I could get it up to 77 mph would be to stand on the accelerator for a while. Because of my work, I drive long distances. It’s a great car for that purpose–it’s reliable and it gets great gas mileage–but the price I pay for that is that I can’t go anywhere fast.
I tried explaining this to Anunson, but he wasn’t listening. He was already writing the ticket. I was angry enough to tell him where to shove it, but he was even more belligerent than I was, and it occurred to me that it might not be a great idea to get into it with a thuggish cop out on a freeway. Besides, someone was expecting me, and Anunson had already kept me for more than 20 minutes. I just wanted to get going, so I took the ticket. Forgetting that he’d already given me back my proof of insurance, I asked him for it.
“I never keeped it,” he said.
I thought of suggesting that a person who couldn’t speak his native language probably shouldn’t be allowed to carry a gun, but I didn’t. I just told him I’d see him in court.
And I did.
According to Justice of the Peace Clayton Hamblen, only about 5 percent of the people who appear before him charged with civil traffic violations in West Mesa Justice Court are represented by attorneys. I guess most either can’t afford it or don’t want to go to any expense over a minor charge.
I was one of the 5 percent. I showed up with my attorney, Nick Hentoff. John Anunson showed up by himself, but it turned out he had legal counsel as well–the judge.
Right from the start, Hamblen acted as prosecutor.
Anunson told his story, and it was very different from what actually happened. He claimed that I’d passed him on the freeway, and so he’d followed me and paced me for a while. He didn’t say anything about the sobriety test, and he said I’d been cooperative and hadn’t been argumentative.
Hentoff’s premise was that Anunson had exaggerated the speed I was driving because he was pissed at me for talking back to him, and his questioning of the cop was building toward that.
But just as an opposing attorney will keep making objections during questioning, Judge Hamblen constantly interrupted Hentoff, asking him to justify the relevance of his questions. When Hentoff explained that my version of the story was radically different from Anunson’s, and that the relevance of the questions would become clear, the judge would either let him go on, or order, “Ask another question.”
During Anunson’s testimony, the judge continually prompted the DPS officer, asking him questions that closed every possible loophole in his story. When Anunson said he’d paced me to establish my speed, Hamblen asked him if he’d changed his tires since getting the car; if he had, it could have affected the accuracy of the speedometer. Anunson said he hadn’t.
The case came down to this: two men, each claiming the other was lying, with no evidence on either side. My word against the cop’s.
Hentoff argued that the burden of proof is on the state, and that no evidence had been produced to show that I was guilty of the offense.
The judge said he felt it had been proved, but he didn’t say how. He pointed out that I’d admitted that I didn’t know what my speed was. But I wasn’t charged with not knowing what my speed was; I was charged with driving at a specific speed, which I knew for certain I hadn’t done. Even if my car would comfortably go that fast, it would mean that everyone else on the freeway was driving at 77 as well.
Referring to Anunson’s claim that I hadn’t talked back to him, Hamblen said that it would have been “prejudicial” if I had. At this point I looked at Hentoff in disbelief. I’m no lawyer, but it sounded to me like this judge was saying that if you argue with a cop, it can be held against you in court. (He would tell me later that he meant that he would have thought the cop was trying to prejudice the case if he had reported that I was argumentative.)
“The judge did what judges always tell juries not to do,” said Hentoff. “He gave extra credibility to the cop’s testimony.”
A couple of days later, I was back in West Mesa Justice Court. Not for a hearing this time, but to interview Judge Hamblen.
I’d called him and told him I wanted to interview him for this column, and, far from avoiding me as I’d expected, he called me right back and left his pager number. When I paged him, he called me again and invited me to come over.
He denies that he acted as prosecutor.
“Absolutely not. . . . If he had said the tires were changed, that would have been that. There would have been no case. I didn’t ask a single question to improve the state’s case. I asked the questions I needed to ask to make a rational, logical decision. I ask questions that go towards making the case whole–not to help one side, not to help the other side. Just to ascertain the facts. . . . You’ve seen the statue of justice, and its eyes are covered. It’s not because justice is blind, it’s because justice weighs the facts. That’s the only thing we can do.”
But no facts were ascertained. It was hearsay on both sides. How did he reach his decision?
“On a preponderance of the evidence, I thought it was more likely than not that you committed the offense.”
Why?
“As a consequence of the evidence that’s presented to me in court. You know in your heart that you’re innocent, and I understand that. . . . Has somebody that probably didn’t commit an offense ever been found responsible? I suspect it has happened.”
And, from what the judge tells me, it will continue to happen. Because civil offenses aren’t tried like criminal offenses. If you’ve committed a crime, you’re not supposed to be convicted if there’s any reasonable doubt. It’s not enough for judges or jurors to think you’re guilty–you have to be proved guilty. If it’s not proved, then you’re innocent.
Not for a civil offense.
“You would find every person charged with a traffic violation not responsible?” Hamblen asks me. He explains that in traffic violations, whether the speed is established by radar or pacing, we still have only the cop’s word that the accused was going that fast. The term “preponderance of evidence” apparently means whoever the judge happens to believe after listening to both sides.
Even though he tells me again and again that the court is a level field and that cops and citizens are given equal credibility, everything else he says suggests the opposite. When I repeatedly ask him what the “evidence” was in my case, he just recites Anunson’s story. Hearsay, from the mouth of a citizen, is hearsay. But hearsay, from the mouth of a cop, is evidence.
“I would never find anybody responsible if there was any evidence to indicate that they should not be,” says the judge.
But he doesn’t need any evidence that they should be, other than the word of a cop.
This would work if police officers were perfect people who could always be trusted. But anyone who reads a paper knows that’s not the case. And so, as it stands, the justice courts give the cops license to pick on anyone they want to, make up any story they want to, knowing that they’ll be supported in court and their charges will stick even if they can’t prove a thing.
The justice courts are the closest most people ever get to the judicial system. And when the facts become frivolities and the court simply functions as an extension of the police, how can citizens be expected to respect the system? The message is clear: If you’re pulled over for any reason, no matter how bullying the cop is, you’d better be nice.
Contact Barry Graham at his online address: bgraham@newtimes.com
