Principles

Our October speaker was Peter Gerstenzang, whose topic was “Cops and Courts—everything you always wanted to know but were afraid to ask.” (As if humanists are ever afraid to question anything.)

Peter is an attorney, with the Albany firm Gerstenzang, O’Hern, Hickey & Gerstenzang. He didn’t say which of the two Gerstenzangs he is. His practice is in criminal defense, with an emphasis on vehicular crimes, particularly those involving alcohol.

He began his talk with a Rensselaer County DWI case entailing a fatality; the accused was effectively placed under house arrest pending trial, with an ankle alarm device, but no bail was actually set. After some dialog with the audience, Peter emphasized that in our system, the purpose of bail is only to insure the accused’s showing up for trial, and not for any punitive effect. This reflects the principle of assumed innocence—which does not obtain in many other countries, and comes out of the basic American ideology of liberty against governmental arbitrariness. Our whole criminal justice system is, indeed, an embodiment of that idealistic philosophy.

Many Americans—including many in the criminal justice system itself—do not seem to actually understand this, Peter argued. The system requires protection of the rights of the most heinous and despised, in order to safeguard the rights of everyone; and for the sake of those rights, we tolerate some evildoers sometimes going free. That’s the price we necessarily pay for the liberties we all enjoy. But Peter saw this ideal being eroded as people deem it trumped by an obsession with safety and security.

Elaborating, he discussed in some depth the thorny issues that arise concerning the rights of the police, acting on behalf of society, to pursue and apprehend wrongdoers, as against the rights of those pursued—which are, again, the rights we all enjoy, protecting us against the arbitrary exercise of state power. A concrete example centered upon a suspected drug dealer, whose car was stopped, with a search turning up the drugs; and after that, he was induced to give a confession. But the confession was invalid because the police had failed to first provide the “Miranda” warning, notifying him of his rights; and furthermore, the physical evidence could not even be used against him, because before he was stopped, the police actually had no reasonable or probable cause to suspect him—a “gut feeling” about him being insufficient. The result might seem perverse; but here again, the real point is the importance, for all of us, of freedom from arbitrary police action. In America, the cops may not interfere with you unless there is a reasonable or probable basis to suspect a violation of law.

Peter also focused on drinking and driving. His basic legal advice: don’t do it, ever, at all. The problem, he explained, is that most of us assume the accuracy of the breathalyzer—and so do the police. Thus we think that after only one or two drinks, we’ll pass the test, and that will be that; but in fact, the breath test can produce wildly distorted results. Peter went into some clinical detail about this, with lovely information involving pyloric valves, belching, and “chyme” (you don’t want to know). Furthermore, as to the field sobriety test, Peter stressed that most sober people actually can’t pass it—and he demonstrated by subjecting one of our beloved members (her name will be spared mention) to the test’s three parts. She flunked all three. Furthermore, he then had her swish a little mouthwash, and breathe into the machine. The result was a supposed blood alcohol reading that was off the charts.

As a final point, he advised never to refuse a breath test. Refusal means a year’s license revocation, even absent conviction for any offense; whereas even with a conviction, you can still get a conditional license. This might bring to mind the old adage, “the law is an ass.” (This is not inappropriate language for our newsletter; the reference is to the beast of burden, not the body part.) Anyhow, the law may be an ass, but humanists should not be.

The refreshments were particularly nice this time, and were consumed with great gusto. The alcohol, however, was untouched.

Cops and Courts- DWI and You!