People v. State

LAW is not a “rule of civil conduct prescribed by the supreme power of a state.” Rather, Law is the “rule, principle, obligation or requirement of natural justice.” Law is “the organization of the natural right of lawful defense. It is the substitution of a common force for individual forces. And this common force is to do only what the individual forces have a natural and lawful right to do: to protect persons, liberties, and properties; to maintain the right of each, and to cause justice to reign over us all.” “Law is organized justice.”

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Last week, just over the border in Niles, Michigan, a 14-year old boy, Dakotah Eliason, was tried as an adult for shooting and killing his 69-year old grandfather as he slept. According to WSBT News, “Dakotah told police he had no explanation for shooting his grandfather, with whom he had a good relationship and who, according to the teenager, had never hurt him.”

On Thursday the jury convicted him of first degree – i.e. premeditated – murder. Whether Dakotah shot and killed his grandfather was apparently not disputed at trial. Rather, the issue was whether he should be convicted of first degree murder, which carries with it a mandatory sentence of life without parole, or second degree murder, which would have allowed for the possibility of parole:

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In the course of the most recent inter-blawg squabble over what role, if any, the pursuit of Justice plays in the job of the criminal defense attorney, Norm Pattis and Mark Bennett perceived incongruity in someone who writes a blog called “People v. State” implying that some defendants might actually deserve what the State is trying to do to them and that making things difficult for the State is not its own justification. (I implied in one comment, consistently with the common observation of criminal defense attorneys that the majority of their clients have done something close to what they’re Read the rest of this entry →

I have a distant memory from when I was about four years old. I told my grandma, with whom I was living, that I wanted to draw a picture of my dad. So I drew him, though I didn’t really remember what he looked like. I drew the bars in front of him. I drew the “cops” standing guard outside his cage. I drew pig snouts on the cops. I showed the picture to my grandma. I remember her not being pleased, as I thought she would be. She said something about my dad having done wrong. I imagine she was troubled by my nascent contempt for “the law.” She didn’t want her grandson to wind up where her son was. All I knew in my four-year-old mind was that some people had locked my dad up in a cage and wouldn’t let him go. That’s why I couldn’t see him. Who were these people?

Maybe it would be better that 2 million guilty persons escape, than that 2 million guilty persons suffer what the State calls Justice.

My latest effort to clarify and simplify what I’ve been trying to say is here, in a comment on a post by Norm Pattis:

When I link Justice with the role of the criminal defense attorney I primarily have in mind our war against the injustices of the State. The State is the largest criminal organization on the planet. Its crimes dwarf those committed by private persons. But yes, private persons commit real crimes and real injustices too. I hate crimes committed by private persons for the same reasons I hate crimes committed by the State. Nevertheless, it is Just that we defend people accused of crimes regardless of their guilt or innocence because . . . “it is better for ten guilty men to be set free than for one innocent person to be convicted.”

The conviction of the innocent is a crime if ever there was one, and I suspect it occurs more frequently than the acquittal of the guilty.

Why do I think it’s important to link Justice with the role of the criminal defense attorney? Because to say “we defend” says nothing. It’s a tautology. We are “crime-fighters.” Maybe by saying so we’ll get more respect, not for our own sakes, but for the sake of a freer society.

It appears that before I address the subject of the title of this post it’s advisable to say something in support of my right to even weigh in on such a weighty topic. There’s a misconception out there that I’m a crazy kid. Crazy is in the eye of the beholder, but, alas, a kid I’m not. This Michaelmas I’ll be forty-one years old. Sure, I’ve only been licensed to practice law since 1999, and I’ve only been regularly practicing criminal law for a couple years. But when I’ve locked horns with self-styled real criminal defense lawyers (“RCDLs”) it’s not been over the best way to try a case. Rather, it’s been over more philosophical matters.

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Mark Bennett, riffing off a post Norm Pattis wrote about Gerry Spence’s claim that he had never lost a criminal case, muses:

I wonder: what if a criminal defense lawyer took only cases that she could win?

. . .

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I think she’s got a case.

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A lot of people say they hate lawyers. I’ve never been a lawyer’s client or a party to a lawsuit and had to deal with one in that role, so I’m not sure why this is. I assume the haters have their reasons, but I wonder whether their hatred isn’t misdirected. Might they be making scapegoats of mere peons? Might their real gripe be with the legal system itself? Granted, the whole legal system is made up of people who went to law school, but why single out for special scorn those of us who labor at its lowest rung? We’re all responsible for our crappy system, but some of us are more responsible for it than others.

It wears on a person to stand in another’s shoes as his attorney while he gets screwed over by the “system” (scare quotes because there is no “system” apart from the people who make it up). And then to stand in another’s as he gets screwed over, and another’s. The client stands aghast, and how can I, as an “officer of the court,” explain or defend what’s happened? I can’t. You’ll just have to take my word for it when I say these people got screwed, and that it wasn’t just a matter of a close call not going our way. I’m not completely insane. I know when an argument has gone unanswered. It would be bearable if it was simply a matter of a close call not going our way, or if the “blown calls” were isolated incidents, or if there was an affordable way to get a timely and truly objective second opinion. What’s unbearable, and a motivation killer, is the realization that being right doesn’t necessarily matter, even when it’s important. If being right doesn’t matter, then we are all full of hot air, as the lawyer-haters charge.

UPDATE:

Norm Pattis offered a “Word of Encouragement” at his blog in response to this post. I tried to comment on his post, but my comment was a little too long-winded to be accepted as a comment, so I’m posting it here:

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Via H. J. Knowles at her “With Irresistible Clearness” blog, the SCOTUS’ majority opinion by Alito in its recent Second Amendment decision in McDonald v. Chicago and the concurring opinion by Thomas both cite possibly the greatest lawyer who’s ever lived, 19th century abolitionist and anarchist Lysander Spooner. (Scalia had likewise cited Spooner in Heller v. District of Columbia.)

At page 22 of Alito’s opinion in McDonald he writes:

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I recently came across this article at the Center for a Stateless Society by Anna Morgenstern, with which I generally agree. I particularly agree with the following explication of terms from the article:

So why the pretense? Why go through this ruse of “public” and “private?” Well that’s it. That’s the state. The state IS the ruse. The state … is a social fiction. It is the myth of legitimacy. This myth is the thin black line that separates “the government” and Read the rest of this entry →

At one table in the Marshall County court was a homeless man with an apparent alcohol problem, representing himself, pleading for the life of his best friend, a wolf hybrid named Shyrkee. At the other table was the attorney for the City of Plymouth, who was asking the court to have Shyrkee euthanized as a vicious animal. The only witness called by the homeless man to testify on Shyrkee’s behalf was the homeless man himself. Testifying for the City were police and animal control officers. At the close of evidence, the city attorney argued: “Someone is going to get hurt bad. . . . On behalf of the citizens of Plymouth, the evidence is overwhelming — they are in danger.”

After weighing the evidence and the arguments of the parties, Judge Robert Bowen ruled . . . for Shyrkee:

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I used to play poker with this 26-year-old college dropout at a local neighborhood bar. His $1 million+ lifetime earnings as a professional poker player shames any pride I might have had in my own amateurish $18k- payday. But playing poker contributes nothing to society, you remonstrate? Fair enough. But consider:

Persistent unemployment is not a problem because employees and employers are “mismatched,” one of those callous Management euphemisms that will one day take its rightful place alongside such Third-Reichisms as “transport.” It’s a problem because our economy is a castle made of bullshit built on a bullshit foundation foundering in a swamp of bullshit. It is not an absence of skills and abilities that curtails and limits the prospects of gainful labor; it is an absence of any industry requiring any labor. Yes, it was lovely that we had a decade or two in which fake jobs full of people pimping their fake skills abounded, but that wave crested and rolled back.

I struggled in this post earlier today with my juxtaposition of the (hypothetical) criminal defense attorney who takes special pride in the acquittal of a “guilty” client and the prosecutor who takes special pride in the conviction of an innocent defendant (e.g., including, and perhaps most typically, a defendant who the prosecutor believes is guilty of something but not the offense the prosecutor charges him with). Even though it was an ancillary part of the post, I went back and forth, editing the juxtaposition in and out, and finally left it in, because it seems the two cases do share and illuminate a common psychological denominator: namely, if as a prosecutor I can get an innocent man convicted, or if as a defense lawyer I can get a client who was caught red-handed acquitted, then I must be a damn fine attorney.

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“Impossible,” you say? Think again, ye of little faith. And now that the folly of your doubt has been revealed to you, don’t go questioning the rest of the story, either.

There is no doubt in my mind that some prosecutors really believe and own what’s expressed in the title of this post. (Indeed, just today a former deputy prosecutor told me this was a favorite saying of his former boss.) Sort of like a criminal defense attorney who takes extra special pride in the acquittal of a guilty client, it’s all about ego for prosecutors of this ilk. Such prosecutors are themselves psychopaths and criminals of the lowest sort. Like a gung ho professional soldier who loves the killing and destruction of war and doesn’t give a damn about the justice of his cause, they have found a socially-approved outlet for their homicidal impulses. (But unlike the soldier, a prosecutor need not risk being shot at in order to kill. He may be a perfect coward.) How well they must think of themselves, as they self-righteously strut before the jury on behalf of “the State.” I have every confidence that in the world to come they will get what’s coming to them, that every minute of undeserved suffering they’ve visited upon others will be visited upon them. I hope they think of this in their dying moments. How sure will they be then that their works were good? In the meantime, I can only pray that their deep-seated perversion manifests itself in a way that leads to public disgrace and the cessation of their crimes. I have to assume many of them are secret shoplifters, closet consumers of child pornography, sexual harassers, etc.

In other news, this week an Elkhart County jury convicted a black man of attempted murder for chasing down and shooting another man who moments earlier shot and killed his brother.

I’m burning a bridge today. After I posted this comment on Scott Greenfield’s post today about the Slackoisie, Scott posted this response to my comment. Since Scott’s response, among other things, misrepresented a previous discussion we’d had, I replied with another comment, which Scott has since deleted from the comment thread. Scott then sent me the following email:

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Love him or hate him, or love him and hate him, there’s no denying that Scott H. Greenfield at Simple Justice has contributed more substance to the criminal defense practical blawgosphere than any other individual. (I would not have hesitated to use the present tense “contributes,” except that an argument could be made that in the substance department Jeff Gamso in the first year of his blawg’s existence has been giving Scott a run for his money. But Simple Justice has been around since February 13, 2007 — although, interestingly, beginning with a post seemingly addressed to potential clients.) Scott and I have had our issues. See, e.g., here, here?, here, here and here. But even if you’re one of those who believe it’s advisable in reading Scott’s blawg to separate the wheat from the chaff, there’s still so much wheat there that Scott deserves a healthy measure of gratitude from those of us who regularly load up on the carbohydrates he dishes out on a daily basis.

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Michael, by Robert Service

“There’s something in your face, Michael, I’ve seen it all the day;
There’s something quare that wasn’t there when first ye wint away. . . .”

“It’s just the Army life, mother, the drill, the left and right,
That puts the stiffinin’ in yer spine and locks yer jaw up tight. . . .”

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UPDATE AND CORRECTION: After further investigation, it appears, counter-intuitively, that marijuana and THC are actually listed as Schedule I controlled substances under Indiana Code sections 35-48-2-4(d)(22) and 35-48-2-4(d)(31), even though dealing in a Schedule I controlled substance is ordinarily a Class B felony (i.e. 6 to 20 years) while dealing in marijuana is ordinarily only a Class A misdemeanor (i.e. 0 to 1 year). This would certainly seem to add teeth to the St. Joseph County Prosecutor’s argument that Mr. Smiley et al. qualify as controlled substance analogs and that selling them could be prosecuted as a Class B or Class A felony, even though it appears that the active ingredient in Mr. Smiley et al. is indeed (or is supposed to be) a synthetic analog of THC (i.e. marijuana) rather than of some other Schedule I controlled substance, the possession or sale of which is generally treated far more harshly by the law than the possession or sale of marijuana. [Again, nothing in this post or on this blog should be construed as legal advice.]

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In my last criminal jury trial, I thought quite a few things went right during voir dire (i.e. jury selection). One was towards the very end, when a gentleman ultimately selected as an alternate juror matter-of-factly stated, in response to being asked by me whether he would hold it against my client if he didn’t testify, “He has nothing to prove.” I had spent many words wrangling (though trying not to “argue”) with many prospective jurors on this point. Striking jurors for cause on this basis had started to get very old, and a little disheartening. This gentleman in the space of five words had succinctly said all I had tried to say on this issue over the previous couple hours, and all there was to say. Maybe I’ll try to begin my next voir dire with the gift this juror gave me and my client. You can bet I thanked him for it, with feeling: “Thank you, sir.” The fact that he remained an alternate throughout the trial and was therefore not allowed to Read the rest of this entry →

On the recommendation of B. W. Barnett in this post at Liberty and Justice for Y’All, I’ve been reading And the Sea Will Tell by Vincent Bugliosi. Bugliosi, of course, is the famed prosecutor of Charles Manson et al., but in this book he describes his defense of a client charged with aiding and abetting her lover in the murder of another couple on Palmyra, a deserted atoll in the Pacific, in 1974. Not to spoil the ending (which I haven’t actually reached yet), but Bugliosi’s client was acquitted, while her lover, Buck Walker, was convicted in a separate trial. Walker (who now goes by the Read the rest of this entry →

Gerry Spence claims on his website to have “never lost a criminal case either as a prosecutor or a defense attorney.” Of course, there was the little matter of the criminal case he prosecuted against Ernest Newton, described by Spence in his autobiography The Making of a Country Lawyer at page 329. The jury acquitted Mr. Newton of ten counts but did convict him of the eleventh. However, the appellate court overturned even that count, in what our hero implied was a “frivolous, flighty, featherbrained decision[] clothed in high-sounding language,” on the grounds that the trial court didn’t have Read the rest of this entry →

Another great product from Cincopa Send Files. Cincopa video hosting solution for your website.

First, I’m keenly aware that just about everybody who’s anybody in the practical blawgosphere has expressed disdain for lawyer marketing in general. I share those sentiments to a large extent, and certainly aspire to reach the point, like these luminaries of the practical blawgosphere, where my practice is fueled solely by word-of-mouth and referrals from satisfied customers. But I’m not there yet, and so in the meantime feel like I should take some modest steps to let people in my community know that I exist. Hence, I’m in the Yellow Pages, both in print and online. And, more non-traditionally, I’m even on a few bus stop benches, and on a couple taxis in the fleet owned by an old high school friend. Read the rest of this entry →

If you are a witness in a pending criminal case and you receive (after the charges have been filed) a subpoena from the prosecutor purporting to require your presence not only at the trial or at a deposition but at a “pre-trial conference” or similar pow-wow with the prosecutor, be advised that the part of the subpoena purporting to require your presence at a pre-trial conference is complete and utter bullshit (at least in Indiana and Kentucky). The prosecutor is himself breaking the law by issuing such a subpoena, and in his hypocritical zeal to incarcerate the defendant is relying on your ignorance of the law and the apparent authority of his office in order to secure an unfair advantage over the defendant at trial. If you receive such a subpoena, please notify the defendant’s attorney immediately. Read the rest of this entry →

. . . was the verdict yesterday in an Elkhart County trial in which I represented the defendant. The jury took all of thirty minutes to deliberate, twenty-five of which I assume were for the sake of appearances. I had tried my damnedest before the trial to get the State to drop the charges, on the grounds that their case was crap. Meanwhile my client sat in jail for almost eight months awaiting trial, since his family couldn’t afford the bond for a Class B felony. (I had made a couple Criminal Rule 4 Motions for the defendant to be released on his own recognizance, to no avail.) After the verdict I went in the jury room, along with the judge and the two deputy prosecutors who’d tried the case, for the traditional post-game analysis. One of the jurors indicated that many of them wondered out loud during their brief deliberations why they were even there. The foreman said the trial was not what he expected, and that he would Read the rest of this entry →

The Indiana Court of Appeals today reversed the attempted murder conviction and 45-year sentence of an innocent defendant I represented at trial, holding that the trial court should have granted the motion to dismiss by reason of collateral estoppel I filed on his behalf.

Via the LewRockwell.com Blog:

George Washington . . . was a Southern planter who owned and relied on slaves. Washington punished his slaves by whipping or selling them, divided their families so they would work more efficiently, and provided them with as little means as tolerable. He also raffled off the slaves of those bankrupt slaveholders who owed him money. Washington’s most gruesome act as a Read the rest of this entry →

In this instance, I find it prudent to follow the advice given to Thumper by his father: “If you can’t say something nice, don’t say nothing at all.”

Instead, I’ll highlight and highly recommend this recent (but pre-Stack) post by David Gross at The Picket Line (who incidentally practices and advocates a response to the IRS different than Stack’s), in which he quotes these words by Henry David Thoreau:

It galls me to listen to the remarks of craven-hearted neighbors who speak disparagingly of [John] Brown Read the rest of this entry →

In my last post I held up Lysander Spooner (1808-1887) as the historical figure who most exemplifies my own highest aspirations as a lawyer: to stand up for other people’s natural rights as well as my own, without undue regard for personal welfare, in the teeth of the moneyed establishment, popular prejudice, and politician-made “law.”

Who today best exemplifies this ideal? Not Gerry Spence. IMHO, it’s J. Tony Serra, high-powered criminal defense attorney, pauper, scofflaw, and ex-con.

I would be hard-pressed to name another man in all of human history whose words and deeds better embody my own ideals as a lawyer and a human being than Lysander Spooner. He was born on today’s date in 1808. Georgetown law professor and Volokh Conspirator Randy Barnett, who owns and operates lysanderspooner.org, offers his birthday tribute here and here.

Read if you haven’t already Spooner’s An Essay on the Trial by Jury, or at least the first chapter, titled “The Right of Juries to Judge the Justice of the Laws.” The simple restoration it advocates would potentially by itself be sufficient to bring to our legal and political system the legitimacy it now so tyrannically lacks. Cf. John Hasnas’ essay The Depoliticization of Law.

Other titles I considered for this post were “The $200 Disciplinary Complaint” and “The $18,000 Disciplinary Complaint,” for reasons made clear below. I settled on the above title because I want it to be found by people searching my name. Transcribed below are the facts contained in the “Statement of Circumstances and Conditional Agreement for Discipline” that formed the basis for the “only” discipline for attorney misconduct I’ve received in my professional career “thus far.” [Plenty of attorneys go through life without collecting any. I'm not expecting to collect any more, unless I do something resembling this or this.]           Read the rest of this entry →

Wise words from St. Joseph Superior Court Chief Judge Michael Scopelitis, as quoted in this South Bend Tribune story questioning whether the legal system is tough enough, after a drunk driver with multiple DUIs on his record recently caused the deaths of a local police officer and his K-9.

From his Letter from Birmingham Jail (April 16, 1963):

You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court’s decision of 1954 outlawing segregation in the public schools, at first glance it may seem rather paradoxical for us consciously to break laws. One may want to ask: “How can you advocate breaking Read the rest of this entry →

In a comment to my post criticizing Scalia’s religious justification for the death penalty, a gentleman named Dudley Sharp posted links to a series of intelligent articles he’s written on the death penalty. Of particular note is the article titled The Death Penalty: Neither Hatred nor Revenge and the article titled Sister Helen Prejean & the death penalty: A Critical Review. Sharp’s observations in the latter article about the events depicted in the movie Dead Man Walking are similar to observations I myself have made. I’ve previously expressed ambivalence about the death penalty rather than a Read the rest of this entry →

I haven’t had occasion to write here yet about the recent string of crazy in Maricopa County, Arizona sprayed by its Sheriff-King, Crazy Joe. It all started with the pilfering of a document from a criminal defense attorney’s file by one of Crazy Joe’s deputies, Adam Stoddard, as caught on camera in this video.

This video deserves to be featured on an upcoming episode of “World’s Dumbest Criminals.” Yet unbelievably, Crazy Joe stood by his man, insisting Stoddard was just doing his job and ensuring courtroom “security.” Read the rest of this entry →

Under Indiana Code section 35-42-2-1.3(b)(2), a person who knowingly or intentionally touches his current or former spouse (or baby momma, or similarly related person) in a rude, insolent or angry manner resulting in bodily injury, and does so in the physical presence of a child less than 16 years old, commits a Class D felony Domestic Battery.

On the other hand, under Indiana Code section 35-42-2-1(a)(2)(M), a person 18 or older who knowingly or intentionally touches his current or former spouse (or other family or household member) in a rude, insolent or angry manner resulting in bodily injury, and does so in the physical presence of a child less than 16 years old, also commits a Class D felony Battery. But it’s not a Domestic Battery. Read the rest of this entry →

Wendy McElroy earlier this week posted two blog posts both inspired by Henry David Thoreau — Civil Disobedience and the Business of Living, and Agents of the State Are Morally Responsible for Their Actions. They’re related to each other and I highly recommend reading both, but Wendy’s conclusion in the former particularly speaks to my condition:

Thoreau’s famous act of civil disobedience — the refusal to pay a tax that supported war — was not the act of a determined political dissident. His one night in jail came about only because the state literally knocked on his front door in the form of a tax collector. At that point, Thoreau had to make a choice; he believed the Mexican-American War was immoral, violating both decency and rights. As long as he was not forced to participate in the ‘evil’, however, Thoreau seemed content to go about the business of living. Read the rest of this entry →

The quote in the title of this post is from this 2006 article by the then Chair of the Colorado Bar Association Criminal Law Section, Lenny Frieling. I cite the article because it reaches essentially the same conclusion as this blog post by a baby lawyer, which Scott Greenfield mocked here on a blog he calls “Simple Justice.” Scott’s view, you see, is that the duty of a criminal defense attorney is “not to ‘do justice,’ but to defend.” Scott goes so far as to proclaim, here and here, that anybody who doesn’t parrot his view in all its simplicity (me, for instance) shouldn’t be a criminal defense attorney.

Frieling, by contrast, takes a less dogmatic and hardheaded approach: “There also are many experienced and wise defense attorneys who would completely disagree with everything I’m saying. Sometimes I disagree with what I’m saying. I respectfully suggest that my view is helpful and at least should be considered in determining the role of a defense attorney.”

Scott Greenfield takes a newbie lawyer to task for taking this question (posed to criminal defense attorneys at cocktail parties all the time) seriously and for offering an answer that Scott believes betrays a fundamental misunderstanding of what it means to be a criminal defense lawyer. The newbie opines that “an attorney’s ultimate goal must be to seek justice and not to simply win.” Scott explains that, to the contrary,

The fundamental duty of a criminal defense lawyer is to zealously represent his client within the bounds of the law. Our duty is not to “do justice,” but to defend.  In contrast, the duty of a prosecutor is not to prosecute, but to “do justice.”  The duties are not opposite or co-terminus. Read the rest of this entry →

Child custody determinations can mean as much if not more to the parties involved as criminal proceedings, and yet they’re made not by a jury but by a single judge, who may or may not be “Honorable.” This mere man — no better on average than other men — sits in judgment over a broken family and by his decree parses out the parents’ rights to their children — rights which are natural and fundamental and more real than the fictional authority which an unthinking and complacent populace concedes to the government and its functionaries. In some counties, it’s commonly known, at least among attorneys, that child custody decisions in contested divorces have as much or more to do with who knows who as they do with the best interests of the children. With the stakes (including the financial stakes) so high and the results so amenable to influence and manipulation, is it any wonder that corruption, either the Read the rest of this entry →

Thus wrote Scalia in an article titled “God’s Justice and Ours” published in First Things in 2002, which I came across via these two recent posts on Catholic judges at Mirror of Justice. He goes on to explain:

In my
view, the major impetus behind modern aversion to the death penalty is the equation
of private morality with governmental morality. This is a predictable (though
I believe erroneous and regrettable) reaction to modern, democratic self–government.
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Actually, I don’t know whether it’s the world’s first, but the situation is certainly, as this story in the Elkhart Truth put it, “unusual.” The story’s headline declares: “Embattled optometrist Gabriele did give falsified diagnoses.” The trouble is, Dr. Philip Gabriele and his wife denied any wrongdoing in a suicide note they mailed to a local TV station a couple days after they were indicted by a federal grand jury and before killing themselves. Shortly after the couple’s suicide, an ophthalmologist who was Read the rest of this entry →

One “bobxxxx” attempted to leave 6 comments on my previous post about Darwin’s theory of evolution and the Establishment Clause. The first 5 were written in the space of 18 minutes. Here’s the first:

The reason every single biology teacher refused to teach anything about intelligent design (and this was before the trial that the creationists lost) is because intelligent design is bullshit.

Evolution is a basic scientific fact. There is no debate about it. Evolution is how the world works. The Magical Designer, also known as the Magic God Fairy, didn’t have anything to do with the development of life.             Read the rest of this entry →

From his dissent in Aquillard v. Edwards, 482 U.S. 578 (1987):

The people of Louisiana, including those who are Christian fundamentalists, are quite entitled, as a secular matter, to have whatever scientific evidence there may be against evolution presented in their schools, just as Mr. Scopes was entitled to present whatever scientific evidence there was for it.

Relative to the dumbest thing I think I’ve ever heard Scalia say, which Read the rest of this entry →

. . . of domestic battery as a Class D felony, though guilty of the lesser included offense of battery as a Class B misdemeanor, was the jury’s verdict today in a case I defended. “Bodily injury” is a necessary element of the former, while the latter only requires knowingly touching another person in a “rude, insolent or angry” manner. “Bodily injury” is ambiguously defined in the Indiana statutes as “any impairment of physical condition, including physical pain.”

Closing argument was interesting. I emphasized to the jury that they are the judges of both the law and the facts, per their jury instructions. (The Indiana Constitution provides “In all criminal cases whatever, the jury shall have the right to determine the law and the facts.”) I also urged on the jury (without actually citing or quoting) the substance of Read the rest of this entry →

Via Jonathan Turley (The Case Against the Separation of Church and State) and Christus Victor Ministries (Painted Idolatry: “One Nation Under God”) comes this newly discovered pictorial evidence that in fact the framers received the U.S. Constitution directly from Jesus Christ. (Scroll over the graven images for the full revelation.)

Some doubters, however, have offered their own interpretation of this evidence. (Scroll over the images.)

I have in the past thought that invocations of God by the government, whether construed as merely ceremonial or as sincere, do not run afoul of the original meaning of the Establishment Clause, which concerns not God but “religion.” Read the rest of this entry →

It is the organized system for employing violent action (or its threat) on the part of individuals, for as noted before, only individuals act. This rationalization occurs on two levels, first by diffusing responsibility to a fiction and second by inducing a group-think inversion of standards.”

From David Calderwood’s article at LewRockwell.com titled “A Demon in Need of Exorcism,” which concisely expresses the underlying premise of this here blog.

So writes Orin Kerr at the Volokh Conspiracy in a post about a C-SPAN video focusing on the Supreme Court building, which Orin nevertheless acknowledges is “remarkable.” That jibes with what I wrote here.

From the Washington Post’s account of the oral argument in a case about whether a 6.5′ cross built on land in the Mojave National Preserve by the VFW in the 1930s to honor the dead of WWI violates the First Amendment:

[Scalia] had a testy exchange with Eliasberg about whether the symbol — which the lawyer said “signifies that Jesus is the son of God and died to redeem mankind for our sins” — could also double as a secular marker for the war dead of all faiths.      Read the rest of this entry →

In honor of Breast Cancer Awareness Month, it is only fitting that I take a moment to observe that elective abortion is the single most avoidable risk factor for breast cancer. You won’t hear that from places like the Susan G. Komen Breast Cancer Foundation or the National Breast Cancer Coalition, which have been actively complicit with the federal government’s National Cancer Institute in ensuring that elective abortion is also the single most top secret risk factor for breast cancer. As far as I’m concerned, I would sooner give money to a crackhead on the street before I would donate a cent to the likes of those organizations.

I’ve already said elsewhere pretty much all I have to say on the subject. There is the Wisconsin Law Review article I authored while Read the rest of this entry →

. . . who spent 20+ minutes visiting this blog, entered and exited from my last post on whether lawyers should be punished for judging judges, and outclicked on the link associated with Matthew 7:1:

I’d love to know what you think. Feel free to comment. What brought you to this little backwater blog (sitemeter says “unknown”)?

Via Marcia Oddi at The Indiana Law Blog, Law.com has posted this lengthy, insightful, and timely article by Joel Cohen and Katherine A. Helm titled “The Propriety of Criticizing Judges,” from which the above quote is taken.

Cohen and Helm also write:

The problem arises in trying to draw the line between open criticism of judges or courts that is constructive and calls out what the law recognizes as a judicial impropriety or the appearance thereof, and disparaging aspersions cast by litigants, themselves tired of being perpetually judged, whose Read the rest of this entry →

I didn’t know this was a blogging tradition until I read this post by the taxgirl, with whom I share a birthday (today!), so in compliance with this newly-discovered tradition I offer the following ten random fun facts you may not know about me in no particular order:

1. It’s my 40th, so Scott Greenfield’s description of me as a “young” lawyer is highly relative to Scott’s own, shall we say, “maturity.”

2. Like the attorney apparently in over his head defending terror suspect Najibullah Zazi, I’ve been practicing law ten Read the rest of this entry →

A friend of a friend, out on bail and pretty certain he would be sentenced to a twenty year prison term (i.e. ten years with credit for good behavior) on a drug charge, was seriously considering not showing up for sentencing and making a run for it. Can’t say I blamed him. Ten to twenty years is a big chunk of life to surrender to the State just because the State tells you to. He was not a gang-banger nor so far as I knew a violent man; his “crime” had no victims. But alas the statute of limitations only refers to the time limit within which the State must file charges after the commission of a crime. If it has Read the rest of this entry →

Written by Justice Brandeis in a dissenting opinion, and quoted by Timothy McVeigh (the only thing he said during his trial) right before the government sentenced him to death.

The link is to Gore Vidal’s sympathetic September 2001 essay in Vanity Fair on “The Meaning of Timothy McVeigh.”

I learned of the essay from the comments to this recent post about McVeigh by Ioz, with which I concur.

Justin Raimondo’s essay on the unhinged critical response to Vidal’s essay is here. To such critics, writes Raimondo, “the idea that someone might have been driven mad by the madness of his own government is so subversive that it Read the rest of this entry →

Ken at Popehat points out the eerie similarity between a song familiar to many from Sunday School and a song praising Barack Hussein Obama that was recently written, sung, recorded and distributed by a class of elementary school students.

Here’s a lyric from the latter:

He said red, yellow, black or white
All are equal in his sight Read the rest of this entry →

I have an egomaniacal tendency to believe that Scott Greenfield is speaking to me in many of his blog posts. No doubt that’s partly because, as a highly-accomplished criminal defense attorney, so much of what he says is highly relevant to people like me who aspire to become highly-accomplished criminal defense attorneys.

Whether or not Scott had me in mind when he wrote his post today titled The Walmart Lode, it harmonizes with his side of our exchange in the comment thread to my post here suggesting that barriers to the legal profession should be lowered rather than raised. Scott writes in his post today:       Read the rest of this entry →

That’s a quote from a former attorney for Hmong leader General Vang Pao, against whom the federal government has finally dropped its charges for allegedly plotting the violent overthrow of the communist regime in Laos. (H/T Ann Althouse.)

I’m sorry, but as much as I approve of the dismissal of these charges against General Pao, I think his patriotism (if reported accurately by his former attorney) is misplaced. The U.S. “government itself” does not exist apart from U.S. agents. The government is what the government does. U.S. “agents” have no “principals.”

In this earlier post, Ann Althouse linked to background on the case which quoted Assistant U.S. Attorney Robert Twiss as saying Read the rest of this entry →

I don’t vote, because I’m persuaded that politics is an extension of war by other means, and that war is a racket. Therefore I really could have cared less when I noted in various headlines over the last couple days that the Indiana Court of Appeals has struck down some Indiana law having to do with “voter ID.” But what really drew my attention to the case was this statement issued yesterday by the Indiana State Bar Association:

On Thursday, Sept. 17, the Indiana Court of Appeals issued a ruling in Indiana League of Women Voters v. Rokita, the “voter ID” case, and Gov. Mitch Daniels commented on the decision and the judges who heard the case. While the Indiana State Bar Association (ISBA) recognizes that Gov. Daniels has Read the rest of this entry →

Those words were spoken by Justice Ruth Bader Ginsburg during arguments last week in the Citizens United campaign-finance case, but the real news (from the Wall Street Journal) is that Sonia Sotomayor in her inaugural appearance as a SCOTUS Justice also suggested by her comments during the arguments that she understands that corporations aren’t people.

I think the two lady Justices are right about this, and are right to challenge what the WSJ says is a century of corporate law. But I also think a Read the rest of this entry →

“I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts.  These are false hopes; believe me, these are false hopes.  Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it.  While it lies there, it needs no constitution, no law, no court to save it.  And what is this liberty which must lie in the hearts of men and women?  It is not the ruthless, the unbridled will; it is not the freedom to do as one likes.  This is the denial of liberty and leads straight to its overthrow.  A society in which men recognize no check upon their freedom soon becomes a society where freedom is the possession of only a savage few — as we have learned to our sorrow. Read the rest of this entry →

Jonathan Adler at The Volokh Conspiracy asks himself the age-old question, “Is Poker a Game of Chance or Skill?” His sly and equivocal answer:

In my opinion, playing poker at a high level requires an immense amount of skill, and better poker players will regularly outperform their less skilled competitors. Yet skill is no guarantee of victory in poker; the cards may still have their say. . . . Nonetheless, some charged with organizing or participating in illegal poker games are pressing the argument Read the rest of this entry →

The New York Times has an important story today that publicizes how lawyers aren’t as free as others to speak their minds about the legal system and those who administer it, and how the popularity of online social media among lawyers and non-lawyers alike is highlighting that disparity. Particularly because practicing lawyers are naturally more knowledgeable than others about the legal system and those who administer it in their communities, this unequal treatment should trouble everyone who cares about the First Amendment and holding public officials accountable.

The NYT story is unfortunately padded with some recycled accounts of lawyers who used social media to do some Read the rest of this entry →

After an email exchange, Scott Greenfield is no longer banning me from commenting at his blog, Simple Justice. That pleases me greatly, as Scott’s blog is one of the best if not the best criminal defense blogs out there, and I continued to read him daily despite the sting of being banned.

Today Scott concurs with Dan Slater in blaming law schools and the ABA for letting too many people into the legal profession. He argues that when there are too many lawyers running around, the oversupply inevitably means Read the rest of this entry →

In the realm of theodicy (the subject of my undergraduate senior philosophy thesis), I’ve sometimes reflected that Hamlet’s observation to Rosencrantz and Guildenstern that “there is nothing either good or bad, but thinking makes it so” sheds some light on the theological “problem of evil.” In the worldlier and more practical realm of criminal law, not so much.

I would prefer not to be robbed, but if I am robbed I would prefer that nothing resembling a firearm be involved. If what appears to me during the robbery to be a loaded firearm is involved, I would prefer that it in fact be unloaded or inoperational or not a firearm at all (i.e. a BB or pellet gun). If what is in fact a loaded firearm is involved, I would Read the rest of this entry →

Via this post at Above the Law, Florida Bar Examiners will start looking at applicants’ Facebook pages to evaluate their character and fitness to practice law, “and will of course check to see if you would like to overthrow the government.” Although Above the Law is kind of joking about that last part, it’s hard to imagine that a Facebook page or a blog like, e.g., this one, would not have raised a few eyebrows among the (non-Floridian) bar examiners who initially admitted me to the practice of law ten years ago. A couple points in my defense, should this blog ever provoke among that kind a second look:

First, I would not like to overthrow the government, at least not all at once. Some things perpetrated by minions of Read the rest of this entry →

The recent death of Milton’s Friedman’s widow, Rose Friedman, led their son David Friedman, a notable libertarian thinker in his own right, to reflect in this blog post on his own intuitions of immortality. Like an unfortunate number of libertarians, David is an agnostic or athiest, and his “best guess is that dead really is dead, that the person is software running on the hardware of the brain and when the hardware stops functioning the person ceases to exists,” despite “find[ing] it hard to entirely believe in death.”

My comment on his post was as follows: Read the rest of this entry →

That’s what a certain prosecutor said to me as he extended his hand and as the sheriff’s deputy placed the cuffs on the innocent man standing next to me, right after the judge read the jury’s verdict finding him guilty. What I thought of what he thought was incompatible with a handshake, though at that particular moment in time I didn’t have it in me to respond appropriately.

Apparently, the tautology chosen by the prosecutor for this occasion is now all the rage.

( or has it already been stolen? )

“Build a better mousetrap and the world will beat a path to your door.” Maybe so, maybe not … but if so, chances are very good that at least some of the path-beaters will make the journey for the purpose of serving lawsuits.

There’s a lot of big money in play right now, pushing an expansive definition of something euphemistically referred to as “intellectual property.” That big money got to be big money by using government to restrain trade and ban competition. But in the age of the Internet, the whole idea of “intellectual property” finds itself going mano a mano with reality — and losing. Read the rest of this entry →

While looking online for the phone number of Judge Marnocha’s chambers, I came across this very informative interview he gave to the South Bend Tribune in 2006. Particularly interesting is this excerpt:

Q: Are you aware of the perception some people have that St. Joseph County judges are too lenient, and more lenient than in Elkhart County?

A: We’re in the top third. Does that say something about St. Joe Read the rest of this entry →

That is, of course, an apology in this sense, not this sense.

Recently I removed from public visibility one of my earliest posts on this blog. The post was highly critical of a particular government employee I’d clashed with, for his role in a miscarriage of justice. Although I didn’t name him in the post, whom I was referring to was clear to some members of a community (unrelated to the legal profession) whose fellowship and opinions I value and respect. Although I was not pressured or even asked to remove the post, and although the post faithfully represented my honest Read the rest of this entry →

While I disagree with how he ties it in to the national health care debate, Norm Pattis’ recent blog post arguing that “Each and every American accused of a crime should have the right to a court-appointed lawyer and the funds necessary to investigate and present a defense” is close to the money. I argued for something similar in this comment thread at Scott H. Greenfield’s Simple Justice blog:

John Kindley wrote:

Here’s an idea: for people who are arguably not indigent but also cannot really afford private counsel, the state facilitates a “guaranteed defendant loan” to pay for such representation, secured by whatever assets Read the rest of this entry →

That’s the sound-bite from attorney Michael Hirsh, who represented Paul Hill (since executed) on appeal for killing a Florida abortion doctor and who may defend Scott Roeder against charges for killing Kansas abortion doctor George Tiller, responding to the Florida Supreme Court’s suggestion that allowing a defendant in such cases to argue a justifiable homicide defense to the jury would be an “invitation for lawlessness.”

Much more on the prospects for such a defense from different perspectives in the AP story at the link.

My earlier thoughts on whether Roeder deserves the death penalty are here.

This story via the Army Times (also covered here by Veterans Today) encapsulates what’s wrong with America:

In mid-June, Congine, 46, began flying the flag upside down — an accepted way to signal distress — outside the restaurant he wants to open in Crivitz, a village of about 1,000 people some 65 miles north of Green Bay.

He said his distress is likely bankruptcy because the village board refused to grant him a liquor license after he spent nearly $200,000 to buy and remodel a downtown building for an Italian supper club. Read the rest of this entry →

Compare and contrast . . .

Murray Rothbard, from his essay Do You Hate the State? (via Lew Rockwell):

I have been ruminating recently on what are the crucial questions that divide libertarians. Some that have received a lot of attention in the last few years are: anarcho-capitalism vs. limited government, abolitionism vs. gradualism, natural rights vs. utilitarianism, and war vs. peace. But I have concluded that as important as these questions are, they don’t really cut to the nub of the issue, of the crucial dividing line between us. . . . Read the rest of this entry →

Via Lew Rockwell: Howard Zinn’s essay Untold Truths About the American Revolution

The Murdering, Thieving, Enslaving, Unlibertarian Continental Army, by Stephan Kinsella

The Declaration and Conscription, by Stephan Kinsella

Robert J. Ambrogi at Legal Blog Watch points to this blog post by Ann Bartow at the Feminist Law Professors blog about the prostitution sting involving former Villanova law school dean Mark Sargent: Women selling sex are arrested and jailed, but the buyers go free?

Prostitution, while a blight on society, is a victimless crime, and therefore not a real crime at all. But if there is a victim, is it primarily the john or the prostitute? Isn’t what we find abhorrent about prostitution the inherent exploitation involved in the exchange, and doesn’t our common sense suggest to us that if anyone is exploited in that exchange it’s the prostitute? Read the rest of this entry →

One inspiration was Albert Jay Nock’s Our Enemy, the State.

Another inspiration is the basic libertarian idea that the agents-without-principals who make up the State have no more authority to violate natural rights than anyone else does, so that when State agents do what would be a crime if committed by anyone else they too act criminally. (Hence, the libertarian proposition that “taxation is theft.”) Many of them in a just world should themselves be defendants. Read the rest of this entry →

. . . but I think it might do this kid and his mommy some good. (Via Reason.) The commenters on the story at the link are spot on.

I sometimes feel like a broken record here at People v. State, so I’m glad to finally be able to take the cop’s side in one of these “cops gone wild” stories.

So, as of a few weeks ago I’m banned at Scott Greenfield’s popular Simple Justice blog. Here’s the scene of the crime. In reply to Scott’s last comment (“My favorite thing about your comments is your self-deprecating metacognition and utter lack of defensiveness.  It’s what I admire most about you.”), I wrote: “You too can become self-deprecating and lose your prickly defensiveness with a little effort. I’m rooting for you. You can do it!” For that Scott (SHG) sent me an email banning me from his blog and stating that my last comment was “evidence of your behaving like a pompous little asshole.” Now, if in fact SHG’s comment claiming to admire me was not intended by him to drip with sarcasm, I would wholly agree with his assessment of my behavior, as I would have drastically misunderstood him. However, given what I”ve seen of SHG’s “prickly” demeanor towards other commenters who venture to comment on his blog, I have no Read the rest of this entry →

There is a compelling logic to the pro-life position, and so it would seem to the thinking that led Scott Roeder to kill George Tiller, M.D.:

Everyone recognizes that it is murder to kill a one-day-old baby. But there’s no material difference between a one-day old baby and a fetus one-day before its due date. It’s nonsensical to think that the mere act of being born and breathing the air makes the one-day-old a “person” with legally-cognizable rights in a way that the about-to-be-born fetus is not. The one-day-old is completely clueless. He sleeps and sometimes cries, and doesn’t open his eyes much. His life could be snuffed out without him really knowing what he’ll be missing, without the fear and anguish of loss that Read the rest of this entry →

Highly recommended, from The Distributist Review: Capitalism as an Unnatural System

The other day I randomly was thumbing through a collection of C.S. Lewis’ spiritual works and unexpectedly came across this passage from The Problem of Pain:

Some enlightened people would like to banish all conceptions of retribution or desert from their theory of punishment and place its value wholly in the deterrence of others or the reform of the criminal himself. They do not see that by so doing they render all punishment unjust. What can be more immoral than to inflict suffering on me for the sake of deterring others if I do not deserve it? And if I do deserve it, you are admitting the claims of ‘retribution.’ And what can be more outrageous than to catch me and Read the rest of this entry →

Aspiring to union with what is best in my fellow men, I do not embrace the connotations of the label “anarchist,” though being true to myself and others compels me to reluctantly embrace the label. Anarchism simply and essentially means a deep and radical skepticism towards authority. Our first allegiance should be to the Truth. Authority only has value insofar as it serves the Truth, and unfortunately lends itself to the perversion of the Truth. Paradoxically but truly, anarchism and conservativism (properly understood) are woven together by common threads. Both are humble in their estimate of the wisdom of the self and of other selves, and harbor disdain for “the best laid plans of mice and men.” As G.K. Chesterton wrote: Read the rest of this entry →

Mark Bennett at Defending People recently opined, in a post about Iraqi tribal leaders’ negative reaction to an American soldier being spared the death penalty by an American jury for raping and murdering a 14-year-old Iraqi girl and murdering her family: “People’s basest instincts – retribution, to name one at play here – are the same the world over. That the American criminal justice system is better than many is not attributable to the character of our government officials, but rather to the principles that constrain them.”

I commented: Read the rest of this entry →

Patrick at Popehat, in a post titled Blogging The Black Dog, asks blogging readers of Popehat: “What keeps you doing it?  How do you motivate yourself to post day after day?” Speaking for myself, I answered as follows in this comment:

The question of motivation is intensified for the beginning blogger, as I am. While many of us and even many popular bloggers like to think they “write for themselves,” critics be damned, the popular bloggers certainly have a motivational advantage, in that it’s difficult to get up the gumption to spend a significant amount of time writing something substantial if you know hardly anyone’s going to read it. A solution I hit on in my previous blog was to make my blog kind of an index of my commentary on other (popular) Read the rest of this entry →

As I daily scan through the titles of new blog posts from around the web on my Google Reader, Scott H. Greenfield’s Simple Justice blog is one, indeed presently the only one, which I invariably read every day. Yet, I would be among those he’s presumably referring to when he wrote yesterday: “Some have called me prickly about how I manage the comments on my blog.” We had this exchange earlier yesterday in the comment thread of his post titled Lawyer Fashionista: Dressing Down, on why lawyers should dress formally and conservatively (i.e., for men, suit and tie) when in court:

I wrote: Read the rest of this entry →

Schwarzenegger, in an effort to get California voters to approve a package of ballot initiatives that would have increased taxes and otherwise diverted cash flow to the government, has been warning his subjects of a “doomsday” budget that would, among other horrors, necessitate the release of non-violent prisoners. The voters by a wide margin didn’t give a rat’s ass and rejected the initiatives, and thus doomsday is apparently upon them.

Color me unsophisticated, but I just don’t see where the government, in California or anywhere else, gets off spending money it doesn’t have. But the root of the problem seems to be that neither state constitutions nor the U.S. Constitution (particularly since the 16th Amendment) recognizes any natural limit to the State’s taxing power. If the Read the rest of this entry →

UPDATE: Judge Jerome Frese comes into work on Saturday to do the right thing and set bonds for the protesters.

Here’s the chronology: Alan Keyes and others were arrested a week or so ago for committing misdemeanor trespassing on Notre Dame’s campus while protesting Obama’s upcoming commencement speech on Sunday. They promptly bonded out of jail by posting bond in an amount established by the courts’ presumptive bond schedule. On Thursday, judges of the St. Joseph County Superior Court, Circuit Court and Probate Court signed, but did not announce, a new emergency local rule, under which, according to the South Bend Tribune, “individuals arrested for the second time on a misdemeanor count can no longer bond out. Those individuals must remain in jail until a hearing Read the rest of this entry →