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Another year closer to the finish line.

January 05, 2016 By: John Kindley Category: Uncategorized

My earlier post today, after a hiatus of quite some time, does not reflect any sort of New Years Resolution to start blogging again. The post had been sitting in my “drafts” folder for a couple months. It had originally been intended to be longer and more complete, as its last paragraph suggests. I edited it slightly for immediate consumption and hit publish. Rather than any sort of new beginning, that post and this one reflects more of a desire to wind this blog up. I have for the most part said what I wanted to say, except for a few loose ends that still irritate me, and that I’ll get around to when, if ever, the mood strikes me. Not that this is some kind of farewell post (or proto farewell post) either.  If I feel called to write again on a regular or semi-regular basis in the future, I will. But writing has become harder and harder for me, because I feel more and more like it’s a waste of time. Nowadays I do it only when I have to, and not for fun. Reasoning — arguing — is so last year. I have learned this lesson from the State, which of course includes the judiciary. I may elaborate with examples in future posts. Because writing, and especially writing about the law, has become like pulling teeth for me, if I do write I expect I’ll break my subjects into little pieces, and not endeavor to produce anything complete or polished or persuasive. Just dot the i’s and cross the t’s.

I feel like I’ll have to say a little more yet about the case I wrote about in my last post, and which I’ve written about occasionally almost from the beginning of this blog. I’ll probably want to finally say something about the case I argued in front of the Indiana Supreme Court and won back in 2014. I’ve been meaning to, and may still, write about footnote 1 in the Indiana Supreme Court’s opinion in Helton v. State. Here’s what I wrote about this footnote in a petition to transfer a post-conviction case to the Indiana Supreme Court, which not surprisingly was denied:

The Indiana Supreme Court itself has left the exact nature of the inquiry unclear (although the inquiry is ultimately one of federal constitutional dimensions), writing in footnote 1 of its opinion in Helton v. State, 907 N.E.2d 1020 (Ind. 2009):

“Helton cites United States ex rel. Hampton v. Liebach, 347 F.3d 219 (7th Cir. 2003), for the proposition that “[e]ven if the odds that the defendant would have been acquitted had he received effective representation appear to be less than fifty percent, prejudice has been established so long as the chances of acquittal are better than negligible.” Id. at 246. We are not confident that this is an accurate construction of the Strickland prejudice standard. Taken at face value, the “better than negligible” Hampton test would appear to find prejudice based on a reasonable possibility that the petitioner would have prevailed at trial. But Strickland requires a reasonable “probability” that the outcome of the proceedings would have been different. In any event, we reach the same result in this case under either the traditional Strickland standard or the Hampton formulation.”

Standard dictionary definitions of “probability” do equate a “probability” with the “chance” or “possibility” of something happening, but the Court here appears to have equated it with a greater than fifty percent chance. Furthermore, the word “reasonable” in the phrase “reasonable probability” would appear to be superfluous and redundant if “probability” is already taken to mean a greater than fifty percent chance. Moreover, the Seventh Circuit in Hampton cited three United States Supreme Court decisions in support of its “formulation,” including Strickland itself, which expressly stated: “[W]e believe that a defendant need not show that counsel’s deficient conduct more likely than not altered the outcome in the case.” Strickland v. Washington, 466 U.S. 668, 693 (1984). Hence, it was exceedingly odd for this Court, in providing guidance to lower courts, to imply that “the traditional Strickland standard” requires a defendant to show that counsel’s deficient conduct more likely than not altered the outcome in his case.

And I do feel like I should probably write at least one more post on my political philosophy, to sum things up and refine a little what I’ve said before on this subject. From the beginning this blog was unusual in that it wasn’t able to “keep its eyes in the boat.” We’ll see.

The Indiana Court of Appeals says I am a “recognized scholar.”

January 05, 2016 By: John Kindley Category: Uncategorized

So did the post-conviction court. But recognized as a scholar by whom? The Court of Appeals and the post-conviction court were presumably referring to this Comment I wrote for the Wisconsin Law Review when I was a law student way back in 1998, which the State brought up at the post-conviction hearing: John Kindley, The Fit Between the Elements for an Informed Consent Cause of Action and the Scientific Evidence Linking Induced Abortion with Increased Breast Cancer Risk, 1998 WLR 1595. But the Indiana Court of Appeals, in its opinion calling me a “recognized scholar,” didn’t actually cite this piece of scholarship. Nor did the Eighth Circuit in its recent “embarrassing” abortion decision, which instead merely cited the declaration, submitted by the State of North Dakota, of a board-certified obstetrician and gynecologist licensed in North Dakota, who “explained some studies support a connection between abortion and breast cancer.” Nor did the North Dakota Supreme Court in disposing, back in 2003, of a false advertising suit I brought against the very same abortion clinic that brought suit as the plaintiff in the Eighth Circuit case. Nor did the courts in California in disposing, in 2003-2004, of a similar false advertising case brought there.

In fact, the last time I was “recognized” as a “scholar” was by then-Congressman Dave Weldon, M.D., back on August 24, 1999 — more than 15 years ago.

The Indiana Court of Appeals (and the post-conviction court) also think that I am “well read.” Let me share an excellent piece of legal scholarship I did happen to read not too long ago, that I think concerns and should interest them very much: The Origins of “Reasonable Doubt” (2005), by Yale law prof James Q. Whitman. Its thesis is close to something Gerry Spence wrote in one of his books, also published in 2005, which he framed as an argument to a hypothetical jury:

The protection of reasonable doubt is not just a protection for Jimmy. It protects each of you. You are men and women with good souls and clear consciences. But what if you were pressured by the prosecution’s arguments to convict Jimmy, and when you got home you began to worry about what you had done, lying awake at night concerned about your decision, your worry that you may have convicted an innocent man?

The rule of reasonable doubt is to protect you. You have a right not to be concerned about your decision. It must be clear to you so that all worry about whether you were right has been removed by the evidence. That is why we have reasonable doubt — not only to protect the accused, but to protect you as well.

Professor Whitman “begin[s his book] with a non-western example [as described by Andrew Huxley], which will offer a useful foil for the Christian tradition that eventually produced the ‘reasonable doubt’ rule”:

In the Tenniya Jataka the future Buddha at one month old, sitting with the king, his father, in court, witnesses his father sentencing criminals to death. Instantly he remembers that in a past life he too condemned men to death, and that as a result he endured the pains of hell for 80,000 years. To escape inheriting the throne, the Future Buddha pretends to be autistic. In the face of this canonical warning that inflicting punishment can damage your kamma [karma], the devout Buddhist prince should refuse to become king.
Professor Whitman concludes:

We can never return to the moral world of our ancestors: The theology that taught them the lesson of “reasonable doubt” is lost to us for good. But the lesson is one that we must find some way to re-learn. Most especially, we must learn it when it comes to jury trial. Indeed, if there is any advantage to jury trial, it is that jurors have not fully come to inhabit the hardened, professionalized attitude of the sixteenth-century continental judge. Lay jurors can still find something shocking and fearful in what they do, at least in capital cases. Even in capital cases, though, jurors must be reminded of what is at stake: As Eisenberg, Garvey and Wells write, “it would be better to openly and routinely instruct jurors that the decision they are about to make is, despite its legal trappings, a moral one and that, in the absence of legal error, their judgment will be final.” It would indeed, and not just where death is involved. Instructing jurors forcefully that their decision is “a moral one” about the fate of a fellow human being, is, in the last analysis, the only meaningful way to be faithful to the original spirit of “reasonable doubt.”

The Indiana Court of Appeals also said in its opinion that my testimony at the post-conviction hearing, “as the State points out” [i.e., as Deputy Attorney General Ian McLean pointed out], was “accompanied by his [my] fervent expressions of belief that Coleman is actually innocent; bitter recriminations against the legal system that convicted Coleman; and an unwarranted belief in his [my] own professional failure.”
I’ll have more to say about all this in a separate post.

Glory Days

July 09, 2015 By: John Kindley Category: Uncategorized

I’ve finally done something I probably should have done a long time ago — posted on the internet the actual “Dear Colleague” letter that then-Congressman Dave Weldon, M.D., sent to every other Member of the U.S. House of Representatives back in 1999 about my student article published in the Wisconsin Law Review, along with a reprint of the article itself. I tried to figure out how to post it here but wasn’t able to — which doesn’t bode well for one of my escape-from-the-law plans — learning how to “code.” Somehow I was able to figure out how to post the letter on my “law firm” website (which hasn’t been revised in years, and is badly in need of some sprucing up), here:


Apparently, the National Cancer Institute’s Tweeter hasn’t gotten the secret memo.

August 20, 2014 By: John Kindley Category: Uncategorized

Recently Australia was in an uproar because one of its top politicians suggested on national TV that abortion might increase breast cancer risk. He did so in the context of being challenged, by the hysterical witch interviewing him, over the planned presentation of the scientific evidence linking induced abortion with increased breast cancer risk by Angela Lanfranchi, M.D., at an upcoming conference the politician is associated with. The ensuing tweet storm was enough to kill even the faith in humanity of one for whom such faith died long ago. Nevertheless, I could not help taking potshots on Twitter at the smug and invincible ignorance of an endless procession of monkeys who just know the abortion-breast cancer link is nothing but a Big Fat Pro-Life Lie because, inter alia, the National Cancer Institute says so.

Hence, I was quite astonished when one of my tweets was favorited and particularly by who favorited it:

Twitter / SingleTaxAnarch: .@SadieODoyle What's @theNCI …

Yes, that’s the twitter account of the National Cancer Institute itself, which has 60K+ followers. Favorites are nice, but a Retweet would have been much better.

Yes, I was indeed trolling the #BlackWomenLead hashtag (which was centered on reproductive rights, and was quite active when I started trolling it), which earned me far uglier responses than Sadie’s. The first thing I tweeted was a link to this Howard University study showing induced abortion more than doubled breast cancer risk among African-American women.

For a comprehensive review by Dr. Lanfranchi of the extant scientific evidence linking induced abortion with increased breast cancer risk, published just this Spring, see here.

Someone needs to Snowden the National Cancer Institute.

The Difference Between Owner and Egoist

July 22, 2014 By: John Kindley Category: Uncategorized

I’ve had this post in the draft folder for a few days, intending it as a response to John Regan’s comment on my last post quoting Max Stirner. John wrote:

I never cared much for Nietzsche, but the similarity of Stirner (with whom I am not at all familiar up to this point) is pretty striking.

I’m a bit wary of unanswerable claims that everything is self-interest or egoism, unanswerable because the define away all objections. Seems a bit facile.

I just haven’t felt up to attempting to express any original thoughts here lately. The tank’s been dry. Rather, I’ve instead been reading, among others, Schopenhauer, George Borrow, the Icelandic Sagas, William Morris, Thoreau, Rimbaud, Hamann, Fichte, Clarence Darrow. That’s probably too much reading. I need a break from that, too. I need to follow Thoreau’s advice and spend a lot more time walking, preferably in the woods. During the summer before law school I quit my job working for Brinks in Milwaukee and spent two months hiking the Appalachian Trail, from Maine to Massachusetts. It was a good time.

It’s no secret, judging from most of my posts over the past year, that lately I’ve been fascinated by both the writings and the life of Ernst Juenger. I’ve long since read everything he’s written that’s been translated into English, but I’ve also found in him a trustworthy guide insofar as I’ve followed up by reading the many influences and models he cited in his writings. His decision, which so far as I know he never explained in writing, to convert to the Roman Catholic Church a year before his death at age 102, caps with mystery a life that was otherwise in many ways an open book. I too converted to the Roman Catholic Church, but at the age of 18 or 19, and my sincere belief that I might have a vocation to the priesthood (obviously proved mistaken in subsequent years) was the reason I gave to the United States Naval Academy for resigning. (My other and more certain reason, which I for the most part kept to myself, was that I no longer wanted to be a “cogwheel in the war machine of a godless State,” and hence I have no regrets about my decision to resign.) I not only did not become a priest, but eventually became an apostate.

Frankly, in my opinion it would be a lot easier to be a Catholic for a couple years, and I presume particularly at the end of one’s days, than it is to be so for a lifetime. I had an interesting career in the Catholic Church. I met on several occasions Bishop Williamson, then of the Society of St. Pius X. I spent several years actively involved with the lay organization founded by Fr. Marcial Maciel, a favorite of Pope St. John Paul II. Those who are interested can Google Bishop Williamson and Fr. Maciel, and get a feel for why I feel, rightly or wrongly, not too bad about my apostasy.

I can’t help connecting in my mind Juenger’s conversion, and reception of the sacraments, with his own account in his diaries from WWII of the execution of a deserter he was required to supervise while a German officer in occupied Paris. Juenger himself, while still a teen, a couple years before WWI, had run off and joined the French Foreign Legion, and then promptly deserted. I wonder whether he considered this irony while he was supervising this other young deserter’s execution, and considered whether he himself should desert — become a “forest fleer” — for the second time in his life, come what may.

I was first led to read Stirner, albeit sparsely, through my readings in anarchist theory. It was Stirner who then first led me to read Juenger, who in turn caused me to return to Stirner and to see in him what Juenger saw.

I read some Ayn Rand in high school, like many other lost souls at that age. It had its ordinary effect, but I quickly came to see the error of my ways when I read The Brothers Karamazov during my first year as an enlisted man in the Navy, while stationed on the USS Kitty Hawk while it was drydocked in the Philadelphia Naval Shipyard. So in a very real sense I was thereby inoculated against making the same mistake twice a couple decades later, even though Stirner is far deeper than Rand.

Toward the end of his life, about three years before he died, Juenger singled out for special mention three primary influences on the disposition of his life, and surprisingly none of them were Stirner: “Rimbaud as a writer; Schopenhauer as a thinker; Hamann as a magician.”

Stirner, unlike Ayn Rand, was no apostle of selfishness, and not really even an “egoist,” though he seemed to get off on tweaking the sensibilities of his contemporaries by shamelessly appropriating the word. How much value did Stirner really place on the “ego,” when the closest he came to defining it was to call himself “nothing,” albeit “the creative nothing,” and when his view of life was not that it was to be anxiously gained or saved, but used up / enjoyed / consumed / squandered. Rather, I view Stirner as representing the sweet spot between Schopenhauer and Nietzsche, which perhaps Nietzsche himself represented in his early approval, in The Birth of Tragedy, of Greek “serenity” or “cheerfulness.”

This post was originally intended to do nothing but make that point, through another lengthy quotation of Juenger, with which I’ll conclude:

Words that are to be intensified by the suffix -ism reveal a special demand, a volitional tendency, often hostility a priori. The motion becomes tumultuous at the expense of the substance. These are words for sectarians, for people who have read only one book, for those who “pledge allegiance to their flag and are unconditionally committed to their cause” – in short, for traveling salesmen and peddlers of commonplaces. A conversation with someone who introduces himself as a realist usually comes to a vexatious end. He has a limited notion of the thing, just as the idealist does of the idea or the egoist of the self. Freedom is labeled. This also holds for the anarchist’s relationship to anarchy.

. . .

The rebukes against him [Stirner] concentrated – nor could it be otherwise – in the reproach of egoism, a concept with which Stirner himself never fully came to terms. Still, he annexed it, often replacing Einziger (Only One) with Eigner (owner, proprietor). The owner does not fight for power, he recognizes it as his own, his property. He owns up to it, appropriates it, makes it his own. This process can be nonviolent, especially as a strengthening of the self-awareness.

. . .

What had touched me so deeply? Stirner’s arrow grazed the point at which I suspected the presence of the anarch. The dissimilarity presupposes a very subtle distinction, and, I believe, Vigo is the only person in Eumeswil who could make it. After all, he instantly caught the difference between owner and egoist. It is the same as the difference between anarch and anarchist. These concepts appear to be identical, but are radically different.

. . .

To draw an important demarcation, we had envisaged a comparison between the Only One and the Superman. It would make little difference whether, as Mackay assumes, Nietzsche, Old Gunpowderhead, was acquainted with Stirner’s work – ideas float in the air. Originality lies in rendering them – in the strength of the tackling and shaping.

First of all: The Superman recognizes the world as the will to power; “there is nothing else.” Even art is a will to power. The Superman joins in the rivalries of the world while the Only One is content to watch the spectacle. He does not strive for power; he dashes neither after nor ahead of it, because he possesses it and enjoys it in his self-awareness. This recalls Far Eastern empires of images.

Naturally, because of external circumstances, power can fall into the hands of the Only One as well as the anarch. But power is burdensome for the Only One. Periander, tyrant of Corinth, “inherited it like a disease” from his father. Incidentally, it strikes me that certain features of Periander and also Tiberius, especially in their good times, are to be found in our Condor, though in the effete and ahistorical framework of Eumeswil. I have already said that the anarch and the monarch have a polar resemblance; basically, each contains both.

Secondly: the famous “God is dead.” By then, Old Gunpowderhead was forcing an open door. A universal awareness was unveiled. That explains the sensation he caused. The Only One, on the other hand: “God … is none of my business.” That leaves all doors open: the Only One can depose or impose God or let the matter rest – whichever he likes. He can show him the door or “form an association” with him. As with the Silesian mystic, “God cannot be without me.” Like the Biblical Jacob, the Only One can wrestle for power until dawn. That alone is the message in the history of God’s redemption plan.


Why I Dig Stirner

July 02, 2014 By: John Kindley Category: Uncategorized

If religion has set up the proposition that we are sinners altogether, I set over
against it the other: we are perfect altogether! For we are, every moment, all that
we can be; and we never need be more. Since no defect cleaves to us, sin has no
meaning either. Show me a sinner in the world still, if no one any longer needs to
do what suits a superior! If I only need do what suits myself, I am no sinner if I do
not do what suits myself, as I do not injure in myself a “holy one”; if, on the other
hand, I am to be pious, then I must do what suits God; if I am to act humanly, I
must do what suits the essence of man, the idea of mankind, etc. What religion
calls the “sinner,” humanitarianism calls the “egoist.” But, once more: if I need not
do what suits any other, is the “egoist,” in whom humanitarianism has borne to
itself a new-fangled devil, anything more than a piece of nonsense? The egoist,
before whom the humane shudder, is a spook as much as the devil is: he exists
only as a bogie and phantasm in their brain. If they were not unsophisticatedly
drifting back and forth in the antediluvian opposition of good and evil, to which
they have given the modern names of “human” and “egoistic,” they would not
have freshened up the hoary “sinner” into an “egoist” either, and put a new patch
on an old garment. But they could not do otherwise, for they hold it for their task
to be “men.” They are rid of the Good One; good is left!

We are perfect altogether, and on the whole earth there is not one man who is
a sinner! There are crazy people who imagine that they are God the Father, God
the Son, or the man in the moon, and so too the world swarms with fools who
seem to themselves to be sinners; but, as the former are not the man in the moon,
so the latter are — not sinners. Their sin is imaginary.

Yet, it is insidiously objected, their craziness or their possessedness is at least
their sin. Their possessedness is nothing but what they — could achieve, the
result of their development, just as Luther’s faith in the Bible was all that he was
— competent to make out. The one brings himself into the madhouse with his
development, the other brings himself therewith into the Pantheon and to the
loss of —Valhalla.

There is no sinner and no sinful egoism!

Get away from me with your “philanthropy”! Creep in, you philanthropist,
into the “dens of vice,” linger awhile in the throng of the great city: will you
not everywhere find sin, and sin, and again sin? Will you not wail over corrupt
humanity, not lament at the monstrous egoism? Will you see a rich man without
finding him pitiless and “egoistic?” Perhaps you already call yourself an atheist,
but you remain true to the Christian feeling that a camel will sooner go through a
needle’s eye than a rich man not be an “un-man.” How many do you see anyhow
that you would not throw into the “egoistic mass”? What, therefore, has your
philanthropy [love of man] found? Nothing but unlovable men! And where do
they all come from? From you, from your philanthropy! You brought the sinner
with you in your head, therefore you found him, therefore you inserted him
everywhere. Do not call men sinners, and they are not: you alone are the creator
of sinners; you, who fancy that you love men, are the very one to throw them into
the mire of sin, the very one to divide them into vicious and virtuous, into men
and un-men, the very one to befoul them with the slaver of your possessedness;
for you love not men, but man. But I tell you, you have never seen a sinner, you
have only — dreamed of him.

Von Hartmann on Stirner

July 01, 2014 By: John Kindley Category: Uncategorized

Dr. J. L. Walker wrote in his Introduction to the 1907 English translation of Max Stirner’s “The Ego and His Own”:

We owe to Dr. Eduard von Hartmann the unquestionable service which he
rendered by directing attention to this book in his “Philosophie des Unbewußten,”
the first edition of which was published in 1869, and in other writings. I do not
begrudge Dr. von Hartmann the liberty of criticism which he used; and I think
the admirers of Stirner’s teaching must quite appreciate one thing which Von
Hartmann did at a much later date. In “Der Eigene” of August 10, 1896, there
appeared a letter written by him and giving, among other things, certain data from
which to judge that, when Friedrich Nietzsche wrote his later essays, Nietzsche
was not ignorant of Stirner’s book.

Von Hartmann wishes that Stirner had gone on and developed his principle.
Von Hartmann suggests that you and I are really the same spirit, looking out
through two pairs of eyes. Then, one may reply, I need not concern myself about
you, for in myself I have — us; and at that rate Von Hartmann is merely accusing
himself of inconsistency: for, when Stirner wrote this book, Von Hartmann’s
spirit was writing it; and it is just the pity that Von Hartmann in his present form
does not indorse what he said in the form of Stirner, — that Stirner was different
from any other man; that his ego was not Fichte’s transcendental generality, but “this transitory ego of flesh and blood.” It is not as a generality that you and I differ,
but as a couple of facts which are not to be reasoned into one. “I” is somewise
Hartmann, and thus Hartmann is “I”; but I am not Hartmann, and Hartmann is
not — I. Neither am I the “I” of Stirner; only Stirner himself was Stirner’s “I.” Note
how comparatively indifferent a matter it is with Stirner that one is an ego, but
how all-important it is that one be a self-conscious ego, — a self-conscious, self-willed

Here is the section of Von Hartmann’s “Philosophy of the Unconscious” that treats of Stirner:

Extremely instructive in this reference is
” Der Einzige und sein Eigenthum,” by Max Stirner, a book that nobody
interested in practical philosophy should leave unread.
This book subjects all ideals having an influence on practice
to a destructive criticism, and shows them to be idols
that only possess power over the Ego so far as the latter
concedes such to them in its self-mistaking weakness. It
cleverly and piquantly demolishes with forcible reasons
the ideal aims of political, social, and humanitarian Liberalism; and shows how the Ego alone can be the smiling
heir of all these ideals thus reduced to impotent nothings.
If these considerations only had the purpose of confirming
the theoretical position that I can as little step out
of the frame of my self-hood as out of my skin, nothing
need be added ; but as Stirner professes to have found
in the Idea of the Ego the absolute standpoint for action,
he either falls into the same error that he had combated
in the case of the other ideals, such as Honour, Freedom,
Right, &c., and places himself at the mercy of another
enthralling idea, whose absolute sovereignty he recognises,
not however for this or that reason, but blindly and
instinctively, or he conceives the Ego not as idea but as
reality, and with no other result than the perfectly empty
and meaningless tautology that I can will only my own
will, think only my own thoughts, and that only my own
thoughts can become motives of my willing a fact as
undeniable by his opponents as by himself. If, however,
and only in that case has his conclusions any sense, he
means that we ought to acknowledge the IDEA of the Ego
as the only governing one, and to admit all other ideals
only so far as they have a value for the former, he
should first have examined the idea of the Ego. He
would then before all have found that, as all the other
ideals are the cues of instincts in pursuit of special ends,
so the Ego is the cue of a universal instinct, egoism,
that is related to the special instincts somewhat as a
season to a day ticket, of which many special instincts
are only derivatives in particular cases, and with which,
therefore, we can get along tolerably well after all other
instincts have been banished, which even, on the contrary,
is never entirely to be dispensed with as long as we live.
Thus it is certainly more pardonable to accord an unconditional
sovereignty to this instinct than to any other ;
but although in the abstract the error is the same in the
two cases, the consequences are far worse in the exclusive
homage paid to egoism. Other instincts, namely, if they
are only sufficiently strong, can frequently be pacified,
although commonly only with sacrifice of happiness on
the whole, which makes them unprofitable ; but egoism
is, according to our former inquiries, never to be satisfied,
because it always procures an excess of pain.
This perception, that from the point of view of the ego
or the individual the denial of the will or forsaking of
the world and renunciation of life is the only rational
course, Stirner entirely misses. It is, however, an infallible
specific for an over-balanced egoism. Whoever
has once realised the preponderating pain that every
individual must endure, with or without knowledge, in his
life, will soon contemn and scorn the standpoint of the
self-preserving and would-be enjoying in a word, self-affirming
ego. He who has come to hold lightly his
egoism and his ego will hardly insist upon the same as
the absolute pivot on which everything must turn, will
rate personal sacrifice less highly than usual, will less
reluctantly accept the result of an investigation which
exhibits the Ego as a mere phenomenon of a Being that
for all individuals is one and the same.
Contempt of the world and life is the easiest path to
self-denial ; only by this path has a morality of self-denial,
like the Christian and Buddhist, been historically possible.
In these fruits which it bears for facilitating the infinitely
difficult self-renunciation lies the immense and hardly to
be sufficiently estimated ethical value of Pessimism.
But lastly, had Stirner approached the direct philoso
phical investigation of the Idea of the Ego, he would have
seen that this idea is just as unsubstantial and brain-created
a phantom (cp.
” Das Ding an Sich,” sect, iii ,
” Das
transcendental^ Subject”), as, for instance, the Idea of
honour or of right, and that the only being which answers
to the idea of the inner cause of my activity is
something non- individual, the Only Unconscious, which
therefore answers just as well to Peter’s idea of his ego
as Paul’s idea of his ego. On this deepest of all bases rests
only the esoteric ethics of Buddhism, not the Christian ethics.
If one has firmly and thoughtfully made this cognition his
own, that one and the same Being feels my and thy pain,
my and thy pleasure, only accidentally through the intervention
of different brains, then is the exclusive egoism
radically broken, that is only shaken, though deeply shaken,
by contempt of the world and of life ; then is the standpoint
of Stirner finally overcome, to which one must at
some time have entirely given adhesion in order to feel the
greatness of the advance ; then first is Egoism sublated as
a moment in the consciousness of forming a link in the
world-process, in which it finds its necessary and relatively,
i.e., to a certain degree, authorised place.

In this connection, here is a telling passage from Stirner’s “The Ego and His Own”:

The child was realistic, taken up with the things of this world, till little by little
he succeeded in getting at what was back of these very things; the youth was idealistic, inspired by thoughts, till he worked his way up to where he became
the man, the egoistic man, who deals with things and thoughts according to his
heart’s pleasure, and sets his personal interest above everything. Finally, the old
man? When I become one, there will still be time enough to speak of that.

Stirner, unfortunately, never lived to be an old man, but died from an insect bite when he was 49 years of age, and wrote nothing significant after his magnum opus, which was published when he was 38 years of age. Ernst Juenger, on the other hand, who lived to be 102 and who remained an “admirer of Stirner’s teaching,” at least until 1977 when he wrote Eumeswil at about age 82, and at least until age 90 when the interviews published in The Details of Time were recorded (even though these interviews are tinctured with Christianity), and presumably until the end of his life (even though he converted to the Roman Catholic Church a year before his death) in 1998, wrote in 1951 (when he was about 56):

The great experience of the forest consists of the encounter with the Ego, with the self, with the inviolate core and essence that sustains the temporal and individual appearance. This encounter, so decisive for the conquest of health and for the victory over fear, is also supreme in its moral value. It leads to the primal basis of all social intercourse, to the man whose example defines individuality. In this sphere we will encounter not only community but also identity. This is the symbolic meaning of the embrace: the Ego recognizes itself in the other human being in the saying, ”This is you.” The other can be the beloved, the sufferer, or the helpless victim. In giving help, the Ego helps its own immortal essence and confirms the basic ethical order of the universe.

But I must say that while I agree with Hartmann that Stirner himself did not closely examine the idea of the ego itself, I don’t agree that Stirner professed to have found in the idea of the ego an absolute standpoint for action. Rather, I think Hartmann was closer to the mark when he supposed that Stirner conceived the ego not as an idea but as reality, while Hartmann missed the mark in supposing that all this conception resulted in was tautology. Tautology, in any event, is underrated, as all definition ultimately amounts to tautology.

Stirner only cleared the way. It is left to us to enquire, as Ramana Maharshi recommended, “Who am I?” I suspect the answer is not quite Fichte’s (or Hartmann’s?) transcendental generality, nor what Stirner did refer to (albeit only briefly) as transitory and finite and mortal.



Society, Soschmiety

April 28, 2014 By: John Kindley Category: Uncategorized

A few posts ago I noted that Ernst Juenger, in defining the difference between the anarch and the forest-goer (aka the forest fleer) in his novel Eumeswil, defined both of these figures in opposition to “society”:

The difference is that the forest fleer has been expelled from society, while the anarch has expelled society from himself.

How barbaric is that? Even most anarchists would say with Thomas Paine that “Society in every state is a blessing,” while most libertarians would conclude with him that “government, even in its best state, is but a necessary evil; in its worst state, an intolerable one.” (I, on the other hand, would say with Nietzsche that “the song of the necessary [is] the single and irreplaceable melody,” and that what is necessary is not evil. I’d say with Tolkien that government is not some thing or institution, which can be in a better or worse “state,” but is only an act or process. I’d say with Isabel Paterson that this act or process originates in and proceeds from the  individual’s moral faculty, and that its defining purpose is only to inhibit those who won’t inhibit, i.e., govern, themselves. I’d say that the presumption of innocence, which rests in part on the likelihood that Tony Serra was right when he said “We’re all either innocent or we’re all guilty”, is the song of the necessary in the act or process of governing. I’d say, in other words, that from both a materialistic / neurological and a metaphysical / religious perspective the existence of what is commonly called “free-will” is reasonably doubtful.)

It’s logical to look for an answer to whether the anarch and the forest-goer are barbaric figures in Max Stirner, on whose thinking Juenger expressly based his figure of the anarch:

The word Gesellschaft (society) has its origin in the word Sal (hall). If one hall encloses many persons, then the hall causes these persons to be in society. They are in society, and at most constitute a parlor-society by talking in the traditional forms of parlor speech. When it comes to real intercourse, this is to be regarded as independent of society: it may occur or be lacking, without altering the nature of what is named society. Those who are in the hall are a society even as mute persons, or when they put each other off solely with empty phrases of courtesy. Intercourse is mutuality, it is the action, the commercium, of individuals; society is only community of the hall, and even the statues of a museum-hall are in society, they are “grouped.” People are accustomed to say “they haben inne [“Occupy”; literally, “have within”] this hall in common,” but the case is rather that the hall has us inne or in it. So far the natural signification of the word society. In this it comes out that society is not generated by me and you, but by a third factor which makes associates out of us two, and that it is just this third factor that is the creative one, that which creates society. . . .

Not isolation or being alone, but society, is man’s original state. Our existence begins with the most intimate conjunction, as we are already living with our mother before we breathe; when we see the light of the world, we at once lie on a human being’s breast again, her love cradles us in the lap, leads us in the go-cart, and chains us to her person with a thousand ties. Society is our state of nature. And this is why, the more we learn to feel ourselves, the connection that was formerly most intimate becomes ever looser and the dissolution of the original society more unmistakable. To have once again for herself the child that once lay under her heart, the mother must fetch it from the street and from the midst of its playmates. The child prefers the intercourse that it enters into with its fellows to the society that it has not entered into, but only been born in.

But the dissolution of society is intercourse or union. A society does assuredly arise by union too, but only as a fixed idea arises by a thought — to wit, by the vanishing of the energy of the thought (the thinking itself, this restless taking back all thoughts that make themselves fast) from the thought. If a union [Verein] has crystallized into a society, it has ceased to be a coalition; [Vereinigung] for coalition is an incessant self-uniting; it has become a unitedness, come to a standstill, degenerated into a fixity; it is — dead as a union, it is the corpse of the union or the coalition, i.e. it is —society, community. A striking example of this kind is furnished by the party. . . .

No, community, as the “goal” of history hitherto, is impossible. Let us rather renounce every hypocrisy of community, and recognize that, if we are equal as men, we are not equal for the very reason that we are not men. We are equal only in thoughts, only when “we” are thought, not as we really and bodily are. I am ego, and you are ego: but I am not this thought-of ego; this ego in which we are all equal is only my thought. I am man, and you are man: but “man” is only a thought, a generality; neither I nor you are speakable, we are unutterable, because only thoughts are speakable and consist in speaking.

The anarch, then, remains in society, but not of society (as the Christian remains “in the world but not of the world”). So, too, does the forest-goer: “Freedom is completely different to mere opposition, and cannot be achieved by flight. We called this place the forest. . . . Those for whom another form of existence is impossible are also forced to rely on following the forest way. . . . As far as its location is concerned, the forest is everywhere. It is in the wasteland and in the cities, wherever the follower of the forest way lives in hiding or concealed beneath the mask of his profession. . . . Freedom is the big issue today. It is the power that masters fear. It is the main concern of the free human being; not just freedom itself, but also the way in which it can effectively be represented and made visible in resistance.”

Note that in Juenger’s definitions the anarch expels society from himself, which is clear enough, while it’s not specified who or what expels the forest-goer from society. Society is a wheel in the head, a spook, a fixed idea, the living corpse of a dead thought. “It,” therefore, does not expel anyone from it. But just because you don’t believe in ghosts doesn’t mean that belief in ghosts isn’t alive and well. It is the believers in society, rather than society itself, who give this ghost (which is all in their heads) their hands and arms, and who expel the forest-goer from “society.” On the other hand, the pervasiveness of this spectral infestation gives it certain definite contours, e.g., in its customs and laws, so that it can be said to take on, even for unbelievers, an effective reality of its own, somewhat apart from its carriers. Hence Nietzsche reified the state as “the coldest of all cold monsters.” Hence there is no hypocrisy in an unbeliever invoking, e.g., the Fifth Amendment of a Constitution whose authority he does not “acknowledge,” or endeavoring to avoid running afoul of society unnecessarily.

In this day and age, both the expulsion from society and the passage into the forest are less literal and more symbolic than they were in Grettir’s day. After all, today there are few frontiers and wild places left to which one might actually flee from society, and, so far from society allowing the outlaw to follow his own lonely and perilous path away from it, it is most likely to cast him into society in its purest form — i.e., into prison. The forest-goer, then, is typically expelled from society while still remaining in the midst of society.

It can also be said that, in the final analysis, while the anarch expels society from himself, the forest-goer (rather than society or the spooked) expels himself from society, but that this expulsion is decided by an inner necessity. After all, there is comfort in “belonging,” in “fitting in,” in the hall, and being expelled from it is intrinsically painful. It’s not something one goes out of one’s way to incur, just for the hell of it. The anarch, Juenger wrote in Eumeswil, “is and remains his own master in all circumstances. When he decides to flee to the forest, his decision is less an issue of justice and conscience for him than a traffic accident.” (What are “justice” and “conscience” in this context other than self-congratulatory names we give to things we want to do?)

An intriguing example of the relationship and difference between the anarch and the forest-goer is supplied from the life story of Juenger himself. I mentioned a couple posts ago that in an interview Juenger gave when he was one hundred years old, a couple years before he died, he manifested a reluctance to commit himself to the anarch as a “position.” But in conversations about ten years earlier, published under the title The Details of Time, he expressly said that “the anarch’s position . . . is the position that I favor at present.” He explains this position in this extraordinary exchange:

HERVIER: May I quote you? On June 14, 1934, you wrote in the Nazi Party newspaper, Der Volkische Beobachter: “My efforts are aimed at preventing even the slightest suspicion of ambiguity about the nature of my political substance.”

JUNGER: Perfectly: but I wouldn’t do it again today. I made myself fairly vulnerable. And a quoi ca peut servir [what good would it do]? I would willingly ask the question. Today, my mindset is that of an anarch, who says: “Go ahead, but as for me, I’m keeping quiet.” But anyway, I did it. Actually, I had largely forgotten about it; there are a whole series of proclamations along those lines. Incidentally, it was a Jewish researcher named Wulf who dug up all that business in the Prussian archives — especially the stories concerning the Pour le merite decoration — and he published them in a book entitled Literature in the Third Reich. I appear there as a rara avis, in a class by myself; he cites a number of analogous items. Those are things that one forgets. But today, as I’ve said, I see all that from very far away, and I would act more prudently.

I assume the series of proclamations and analogous items Juenger was referring to here are essentially the same as those described in this paragraph from the Wikipedia article on Juenger:

Never a member of the National Socialist movement around Adolf Hitler, Jünger refused a chair offered to him in the Reichstag following the Nazi Party‘s ascension to power in 1933, and he refused the invitation to head the German Academy of Literature (Die deutsche Akademie der Dichtung).[6] On June 14, 1934, Jünger wrote a “letter of rejection” to the Völkischer Beobachter, the official Nazi newspaper, in which he requested that none of his writings be published in it.[7] Jünger also refused to speak on Goebbels’s radio. He was one of the few “nationalist” authors whose name was never found on the frequent declarations of loyalty to Hitler. He and his brother Friedrich Georg quit the “Traditionsverein der 73er” (veteran’s organization of the Hanoverian regiment they had served during World War I) when its Jewish members were expelled.[8] An attack on Jünger appeared in the Bavarian Völkischer Beobachter of October 22, 1932, with the title “Das endlose dialektische Gesprach” (the Endless Dialectical Discussion), taking Jünger to task for not being an adherent of Blood and Soil racial doctrine, and accusing him of being an “intellectualist” and a liberal.[9]

These were acts characteristic not of an anarch but of a forest-goer. On the other hand, Juenger’s chilling description of an execution of a deserter he supervised during WWII, at the beginning of the following video, was characteristic of the position of an anarch:

Although it is certain that Max Stirner inspired the figure of the anarch as described in Eumeswil (1977), I have seen no indication either way as to whether Juenger had read Stirner prior to writing The Forest Passage (1951). In any event, it appears to me that Stirner’s “insurgent” illuminates almost exactly Juenger’s forest-goer. I regard the following passage as the crescendo of Stirner’s masterpiece, The Only One and His Own:

Propertylessness or ragamuffinism, this then is the “essence of Christianity,” as it is essence of all religiousness (i.e. godliness, morality, humanity), and only announced itself most clearly, and, as glad tidings, became a gospel capable of development, in the “absolute religion.” We have before us the most striking development in the present fight against property, a fight which is to bring “Man” to victory and make propertylessness complete: victorious humanity is the victory of —Christianity. But the “Christianity exposed” thus is feudalism completed. the most all-embracing feudal system, i.e. perfect ragamuffinism.

Once more then, doubtless, a “revolution” against the feudal system? —

Revolution and insurrection must not be looked upon as synonymous. The former consists in an overturning of conditions, of the established condition or status, the State or society, and is accordingly a political or social act; the latter has indeed for its unavoidable consequence a transformation of circumstances, yet does not start from it but from men’s discontent with themselves, is not an armed rising, but a rising of individuals, a getting up, without regard to the arrangements that spring from it. The Revolution aimed at new arrangements; insurrection leads us no longer to let ourselves be arranged, but to arrange ourselves, and sets no glittering hopes on “institutions.” It is not a fight against the established, since, if it prospers, the established collapses of itself; it is only a working forth of me out of the established. If I leave the established, it is dead and passes into decay. Now, as my object is not the overthrow of an established order but my elevation above it, my purpose and deed are not a political or social but (as directed toward myself and my ownness alone) an egoistic purpose and deed.

The revolution commands one to make arrangements, the insurrection [Empörung] demands that he rise or exalt himself.[sich auf-oder empörzurichten] What constitution was to be chosen, this question busied the revolutionary heads, and the whole political period foams with constitutional fights and constitutional questions, as the social talents too were uncommonly inventive in societary arrangements (phalansteries etc.). The insurgent [93] strives to become constitutionless.

While, to get greater clearness, I am thinking up a comparison, the founding of Christianity comes unexpectedly into my mind. On the liberal side it is noted as a bad point in the first Christians that they preached obedience to the established heathen civil order, enjoined recognition of the heathen authorities, and confidently delivered a command, “Give to the emperor that which is the emperor’s.” Yet how much disturbance arose at the same time against the Roman supremacy, how mutinous did the Jews and even the Romans show themselves against their own temporal government! In short, how popular was “political discontent!” Those Christians would hear nothing of it; would not side with the “liberal tendencies.” The time was politically so agitated that, as is said in the gospels, people thought they could not accuse the founder of Christianity more successfully than if they arraigned him for “political intrigue,” and yet the same gospels report that he was precisely the one who took least part in these political doings. But why was he not a revolutionist, not a demagogue, as the Jews would gladly have seen him? Why was he not a liberal? Because he expected no salvation from a change of conditions, and this whole business was indifferent to him. He was not a revolutionist, like e.g. Caesar, but an insurgent; not a State-overturner, but one who straightened himself up. That was why it was for him only a matter of “Be ye wise as serpents,” which expresses the same sense as, in the special case, that “Give to the emperor that which is the emperor’s”; for he was not carrying on any liberal or political fight against the established authorities, but wanted to walk his own way, untroubled about, and undisturbed by, these authorities. Not less indifferent to him than the government were its enemies, for neither understood what he wanted, and he had only to keep them off from him with the wisdom of the serpent. But, even though not a ringleader of popular mutiny, not a demagogue or revolutionist, he (and every one of the ancient Christians) was so much the more an insurgent, who lifted himself above everything that seemed sublime to the government and its opponents, and absolved himself from everything that they remained bound to, and who at the same time cut off the sources of life of the whole heathen world, with which the established State must wither away as a matter of course; precisely because he put from him the upsetting of the established, he was its deadly enemy and real annihilator; for he walled it in, confidently and recklessly carrying up the building of his temple over it, without heeding the pains of the immured.

Now, as it happened to the heathen order of the world, will the Christian order fare likewise? A revolution certainly does not bring on the end if an insurrection is not consummated first!

My intercourse with the world, what does it aim at? I want to have the enjoyment of it, therefore it must be my property, and therefore I want to win it. I do not want the liberty of men, nor their equality; I want only my power over them, I want to make them my property, i.e. material for enjoyment. And, if I do not succeed in that, well, then I call even the power over life and death, which Church and State reserved to themselves — mine. Brand that officer’s widow who, in the flight in Russia, after her leg has been shot away, takes the garter from it, strangles her child therewith, and then bleeds to death alongside the corpse — brand the memory of the — infanticide. Who knows, if this child had remained alive, how much it might have “been of use to the world!” The mother murdered it because she wanted to die satisfied and at rest. Perhaps this case still appeals to your sentimentality, and you do not know how to read out of it anything further. Be it so; I on my part use it as an example for this, that my satisfaction decides about my relation to men, and that I do not renounce, from any access of humility, even the power over life and death.

It is probably safe to say that under no circumstances would the founder of Christianity have found himself, like Juenger did in WWII, supervising the execution of a deserter from the army. Jesus exemplified one of the defining characteristics of Juenger’s figure of the forest-goer — the man who has conquered fear in his own heart. It’s interesting that Juenger converted to the Catholic Church in the year before his death at age 102. It also seems to me worthwhile to contemplate in this context the meaning and connotations of the word “Passion” as it’s used to describe the expulsion of Jesus from “society.”

“Something’s very rotten in our system.”

April 16, 2014 By: John Kindley Category: Uncategorized

That’s Douglas Berman, Ohio State law prof and author of the Sentencing Law and Policy blog, as quoted in the NYT in a story titled Obama Commutes a Prisoner’s Sentence, Lengthened More Than 3 Years by a Typo. “It’s a shame that we need presidential action to take care of something everybody agrees was a mistake,” said Berman. He has much more to say in a post on his blog, which begins:

The more I reflect on the typo-correction sentence commutation of federal prisoner Cesar Huerta Cantu (basics here), and especially after re-reading this 2255 dismissal order that followed Cantu’s own effort to have a court fix its own significant sentencing error, the more disgusted I feel about the modern federal sentencing system and especially about the U.S. Department of Justice and those federal prosecutors most responsible for Cesar Cantu’s treatment by our Kafkaesque system.

He concludes:

I am hoping Bill Otis or other current or former federal prosecutors will help me feel better about the work of our federal sentencing system and the Department of Justice in the wake of the Cantu commutation.  Especially because Prez Obama has been so stingy with his clemency power, I want this latest commutation to be a reason to celebrate rather than curse our justice system.  But unless and until someone can metamorphasize my understanding of the work of federal prosecutors in this case, I have a hard time not thinking that Josef K. and Cantu have far too much in common.

Compare this recent State-friendly decision of the Indiana Supreme Court in State v. Lotaki, overturning and reversing this Indiana Court of Appeals decision, which had found that the State was not authorized to bring its (untimely) appeal of the trial court’s denial of its most recent motion to correct erroneous sentence, and that “this [procedural] apple has been devoured.”

In related news, The Indiana Law Blog notes today:

Scott H. Greenfield, a NY attorney, writes in Simple Justice, A Criminal Defense Blog about our Supreme Court’s March 25th opinion in Joanna S. Robinson v. State of Indiana, a case where the testimony of the arresting officer and the record from his video camera were somewhat at odds. A Public Defender Blog, from “I am Gideon. I’m a public defender in the fictional state of Connecticut,” has a less measured response.

The Indiana Supreme Court in Robinson (a case out of Elkhart County), in overturning the Court of Appeals, which had held that the trial court wrongly denied Robinson’s motion to suppress and had reversed her conviction, found that “The trial court found, as a matter of fact, that to the extent Deputy Claeys’s testimony conflicted with the video, the former was more reliable than the latter.”

I kid you not.

The majority then concluded that the standard of review bound it to defer to this “finding” by the trial court, and upheld the trial court’s denial of Robinson’s motion to suppress and her conviction on the basis of this “finding.” The lone dissent, quoting the trial court’s order, argued that the trial court had “plain[ly]” not based its denial of the motion to suppress on something so palpably unreasonable [the latter four words are mine, not the dissent’s], while unreasonably agreeing with the majority that “had it done so that would be the end of the matter.” The majority responded to the dissent in a footnote:

That is not how we read the trial court’s conclusions, but even if it were, affirmance would still be proper. . . . Here, the officer’s testimony that Robinson crossed the fog line twice—which the trial court appeared to find credible—supports a legal finding of reasonable suspicion for the traffic stop. Thus, we may—and do—affirm the trial court.

The dissent responded in his own footnote:

Although an appellate court has permission to affirm on any basis in the record, I would be particularly reluctant to do so here based on record evidence that the trial court itself did not appear to credit.

Compare this recent post by Will Baude at the Volokh Conspiracy, about a suppression hearing in Chicago during which, in what the Chicago Tribune described as “a ‘Perry Mason’ moment,” the defense played a police video that contradicted the preceding sworn testimony of five officers. In stark contrast to Robinson’s case, a “furious” judge believed the video over the officers and suppressed the search and arrest. The officers were then “put on desk duty pending internal investigations.” Baude comments (in a short post, which is how I justify quoting virtually all of it):

What I find remarkable is not that five police officers conspired to lie; alas, that does not surprise me. Rather, it is remarkable that they were caught and punished.

But the reassignment to desk duty does make me wonder about perverse consequences. My understanding is that once a police officer is found to have lied on the stand, it is difficult for that police officer ever to testify again, because the finding of dishonesty can be used to impeach them. This means that a finding of dishonesty can carry major professional consequences for an officer.

Let us suppose this is true. Is it possible that this actually dissuades judges from finding that police officers have lied? I’d worry that a judge who thinks that an officer’s testimony is not that believable, but who is not certain, might err on the side of crediting the officer — or at least declining to say anything about it either way — because of the severe consequences to the officer. In other words, I wonder if the severe consequences to being caught lying cause judges to underenforce the requirement of honesty. That could even lead to more lying in the long run.

Indeed, I think this is a very plausible explanation of the key words in the trial judge’s order denying the motion to suppress in Robinson: “[it was] quite possible that the officer’s actual visual observation of the defendant’s vehicle was superior to the video camera in his car.” To my mind, it is plain as day, as the dissent said, that these words do not add up to the majority’s conclusion that the trial judge “weigh[ed] Deputy Claeys’s testimony [that Robinson drove off the roadway] more heavily than the video evidence.”  Rather, the trial judge (who incidentally is a former prosecutor) probably simply found it unnecessary, and was probably reluctant, to say, or even imply, that the officer was a liar. It’s also possible that the officer genuinely believed at the time he pulled Robinson over that she had driven over the fog line and completely off the roadway, but was mistaken, as the video apparently showed. Perhaps this is what the trial judge meant to say. (It’s even more possible that the officer’s recollection at the time of the suppression hearing was simply mistaken, although I’m assuming he had also submitted a police report attesting to the same “facts” shortly after arresting Robinson, which he had to contend with.) It would also be reasonable to read the trial judge’s words as a simple and trite truism. That is, it’s somewhat reasonable to say in general that actual visual observation may in some senses and in some cases be “superior” to video, but it is totally and mind-bogglingly unreasonable to say so insofar as it actually conflicts with video.

But the Indiana Supreme Court decided that even if, as the dissent said, the trial judge based its ruling on what was shown in the video rather than on what was testified to by the officer, it could — and would — affirm the trial judge based on the officer’s testimony, even if that testimony conflicted with the video.

You would think that the highest court of this state would (1) not go so far out of its way to believe that the trial judge had based his ruling on something so palpably unreasonable, and (2) not go so far out of its way to affirm a human being’s criminal conviction based on something so palpably unreasonable. But you would think wrong.

I was curious about the oral arguments in this case, and watched it in full. At no point did the State have the gall to suggest at oral argument that the video was wrong and the officer was right and that Robinson’s car had driven over the fog line or off the roadway because the officer said so, although at one point Justice Rush did appear to ask the State whether there was any other evidence in the record on which the trial judge could have based his finding of reasonable suspicion. Rather, the arguments on both sides appeared to assume that Robinson had only swerved onto the fog line, and centered on whether this by itself was enough to support reasonable suspicion. The opinion of the Court of Appeals, too, had not even considered the possibility that the officer was right and his video was wrong. I’m guessing therefore that the Indiana Supreme Court’s written opinion was a big surprise to all concerned, except the Justices themselves.

Perry Mason, stay home.

It’s not me, it’s you.

April 02, 2014 By: John Kindley Category: Uncategorized

It turns out that upon closer examination that Indiana Court of Appeals opinion I wrote about a couple posts ago is even worse than I thought. Take a look at these sentences from the opinion, in a case which is all about the defendant’s right to a speedy trial:

Here, _____ was charged on July 31, 2009. The trial court set the initial trial date for November 8, 2010. This was approximately 615 days after the charging date and clearly beyond the one-year limit provided for under Crim. R. 4(C). . . . Thus, he acquiesced to a belated trial date. See Vermillion v. State, 719 N.E.2d 1201, 1204 (Ind.1999). As such, we agree with the trial court’s finding that the additional 222 days of delay accumulating from March 26, 2010 to November 3, 2010 were chargeable to _____.
You don’t have to be a lawyer to go to this online date calculator and quickly see for yourself whether in fact there really were “approximately” 615 days between July 31, 2009 and November 8, 2010, or whether the Court of Appeals, in this case about the defendant’s right to a speedy trial, was off by about five months. (There’s a lot more to this case, but suffice it to say here that the initial trial date was clearly not beyond the limit provided for under Criminal Rule 4(C), and that the Court of Appeals’ gross overestimation of the number of days between the charging date and initial trial date  hurt rather than helped the defendant, according to the Court of Appeals’ dubious interpretation of Vermillion. Cf. Cook v. State (Ind. 2004).)


The Forest-Goer and the Anarch

March 06, 2014 By: John Kindley Category: Uncategorized

I hate to say it, but I prefer this old anonymous partial translation of Ernst Juenger’s The Forest Passage (1951) over the new complete translation by Thomas Friese from Telos Press. I hate to say it, because Friese has done the world a big favor by making the entirety of this great work available to English-speaking readers for the first time, and Friese’s English translation of Juenger’s also wonderful The Adventurous Heart is itself wonderful. It’s just that, having read the anonymous translation of the greater part of the The Forest Passage, which has inspired me to call it possibly the greatest thing I’ve ever read, Friese’s rendering seems positively clunky by comparison. But perhaps to its credit Friese’s is a more rigorously literal translation of the original German. (I wouldn’t know.) And again, there are of course many important passages in Friese’s complete translation you won’t find in the anonymous partial translation, but again, in my opinion the greatest passages are included in the anonymous partial translation, and rendered more powerfully than in Friese’s translation.

I also have to quibble with a few things in Friese’s preface to his translation. He writes:

Since the publication of Eumeswil (1977), no discussion of the forest rebel can be complete without mention of its successor in that later work, the anarch, in my opinion Juenger’s crowning achievement. Indeed, all the qualities ascribed to the forest rebel in The Forest Passage are present in the anarch, and then some, for the anarch is his stronger twin, comprehending all that he is and taking the development further. . . .

A final note regarding the translation of the book’s title and protagonist, of the act and the actor. . . . [T]he translator of Eumeswil, Joachim Neugroschel, translated “Waldgang” and “Waldganger” as “forest flight” and “forest fleer.”. . . I departed from [these English terms], primarily because the word “flight” has a connotation of running away from normal reality, the choice of a weaker, not a stronger, individual. Naturally, the forest rebel does seek to escape oppression, and, being comparatively weaker than the anarch, he must “flee” society to some extent, while the anarch can remain concealed and wholly within it. However, the terms of comparison at the time Juenger conceived the figure of the Waldganger were not the as-yet unborn anarch and his qualities, but the masses, and political activists, anarchists, and partisans. In comparison with these, the inner and outer positions the Waldganger occupies require a stronger will, courage, and inner force; in this context, I find “flight,” as reflecting a relative weakness, inappropriate. . . .

For the actor’s name, I chose a compromise between Neugroschel’s “forest fleer,” which retains “forest,” and the French and Italian translators who simply used “rebel,” which this figure certainly also is. In this manner, a new term, the forest rebel, has also been coined for this freshly conceived and yet timeless existential figure of Ernst Juenger’s.

I don’t quibble with Friese’s choice of “passage” over “flight.” Indeed, in the last couple pages of Eumeswil the mentor of the protagonist and narrator, Martin Venator, who styles himself an anarch, says to him:

Martin, I have never doubted that you prefer the forest. Yet I also know that you regard it as a passage—not as a goal, like Attila, or as a fiction, like the Domo. But what are fictions? A dream comes true in each of our great transformations. You know this as a historian. We fail not because of our dreams but because we do not dream forcefully enough.

On the other hand, rather than “forest fleer,” or “forest rebel,” or simply “rebel,” why not simply “forest-goer”? Certainly the “forest” is essential to the figure, so Friese was certainly right to retain it. As Juenger wrote in The Forest Passage (in the words of the anonymous partial translation I linked to above) in the paragraph introducing the figure:

The ship is a symbol of temporal existence, the forest a symbol of supratemporal being. In our nihilistic epoch, optical illusions multiply and motion seems to become pervasive. Actually, however, all the contemporary display of technical power is merely an ephemeral reflection of the richness of Being. In gaining access to it, and be it only for an instant, man will gain inward security: the temporal phenomena will not only lose their menace, but they will assume a positive significance. We shall call this reorientation toward being the retreat into the forest (Waldgang), and the man who carries it out the wanderer in the forest (Waldgänger). Similar to the term ”worker” (Arbeiter), it signifies a scale of values. For it applies not only to a variety of forms of activity, but also to various stages in the expression of an underlying attitude. The term has its prehistory in an old Icelandic custom. The retreat into the forest followed upon proscription. Through it a man asserted his will to survive by virtue of his own strength. That was held to be honorable, and it is still so today in spite of all commonplaces to the contrary.

As Jesse Byock explains in Viking Age Iceland, the old Icelandic word for full outlawry literally meant “forest-going.” (Personally, I also prefer “forest-goer” and “forest passage” over the anonymous translator’s “wanderer in the forest” and “retreat into the forest.”) It seems clear that Juenger’s figure of the forest-goer was inspired by the old Icelandic “outlaw sagas,” and perhaps especially by Grettir’s Saga. Juenger wrote in Eumeswil:

The forest flight resembles the perfect crime in both its planning and its failures. Nothing is easier than opting for autonomy, nothing is harder than bringing it about. Man has forgotten how to stand for himself–on his own two feet, which grasp the ground directly. He does not like doing without helpers and accomplices. They introduce the first cracks into the system.

The longest forest flight in Iceland was carried out by Grettir, the strongest man on the island: he feared no human being, but he did fear ghosts. When Gudmund advised hirn to settle on an untakable cliff, Grettir replied: “I will try. But I am so scared of the dark that I cannot be alone for the life of me.”

To which Gudmund rejoined: “That may be true. But trust no one as much as yourself.”

Grettir took along his fifteen-year-old brother, Illugi, and that was good; but he also took along Glaum, his slave. Illugi perished at his side while Glaum betrayed him. I have put up a memorial to Illugi on the acacia hill.

What I really have to quibble with is Friese’s suggestion that the forest-goer is “weaker than the anarch.” Let us look at every exposition of the “forest fleer” or the “forest flight” in Eumeswil (in addition to the one quoted above) and see:

The anarch is a forest fleer, the partisans are a collective. I have observed their quarrels as both a historian and a contemporary. Stuffy air, unclear ideas, lethal energy, which ultimately put abdicated monarchs and retired generals back in the saddle—and they then show their gratitude by liquidating those selfsame partisans. I had to love certain ones, because they loved freedom, even though the cause did not deserve their sacrifice; this made me sad.

If I love freedom “above all else,” then any commitment becomes a metaphor, a symbol. This touches on the difference between the forest fleer and the partisan: this distinction is not qualitative but essential in nature. The anarch is closer to Being. The partisan moves within the social or national party structure, the anarch is outside it. Of course, the anarch cannot elude the party structure, since he lives in society.

The difference will be obvious when I go to my forest shack while my Lebanese joins the partisans. I will then not only hold on to my essential freedom, but also gain its full and visible enjoyment. The Lebanese, by contrast, will shift only within society; he will become dependent on a different group, which will get an even tighter hold on him.

. . .

I have done some serious cogitating about the reasons for the failure of the forest flight. This issue haunts many people—indeed, everyone who plans the “perfect crime.” Nearly all these types surrender to a misplaced optimism.

The forest flight confirms the independence of the anarch, who is basically a forest fleer anywhere, any time, whether in the thicket in the metropolis, whether inside or outside society. One must distinguish not only between the forest fleer and the partisan but also between the anarch and the criminal; the difference lies in the relationship to the law. The partisan wants to change the law, the criminal break it; the anarch wants neither. He is not for or against the law. While not acknowledging the law, he does try to recognize it like the laws of nature, and he adjusts accordingly.

. . .

The forest fleer and the partisan are not, as I have said, to be confused with each other; the partisan fights in society, the forest fleer alone. Nor, on the other hand, is the forest fleer to be confused with the anarch, although the two of them grow very similar for a while and are barely to be distinguished in existential terms.

The difference is that the forest fleer has been expelled from society, while the anarch has expelled society from himself. He is and remains his own master in all circumstances. When he decides to flee to the forest, his decision is less an issue of justice and conscience for him than a traffic accident. He changes camouflage; of course, his alien status is more obvious in the forest flight, thereby becoming the weaker form, though, perhaps indispensable.

That is, the “full and visible enjoyment” of the anarch’s “essential freedom” is gained by the forest passage, which is “perhaps indispensable.” Freedom and necessity are at play in this distinction without a difference between the anarch and the forest-goer. From The Forest Passage:

It is well to remain aware of the inevitable in order to avoid being lost in illusions. Freedom coexists with necessity, and only after freedom enters into a relation with necessity can the new state of mind emerge. Every transformation of the concept of necessity has brought with it a change in the concept of freedom. For this reason the notions of freedom of 1789 have become obsolete and are no longer effective against the coercion of our time. Freedom in itself is immortal, but in each period it appears in a different guise and must be conquered anew. History in the true sense can be made only by free men; it is the form given by the free to his destiny.

The anarch who has expelled society from himself will inevitably be expelled from society. The forest-goer who has been expelled from society will inevitably expel society from himself. From The Forest Passage:

Wanderers in the forest (Waldgänger) are all those who, isolated by great upheavals, are confronted with ultimate annihilation. Since this could be the fate of many, indeed, of all, another defining characteristic must be added: the wanderer in the forest (Waldgänger) is determined to offer resistance. He is willing to enter into a struggle that may appear hopeless. Hence he is distinguished by an immediate relationship to freedom which expresses itself in the fact that he is prepared to oppose the automatism and to reject its ethical conclusion of fatalism.

There used to be on YouTube a rare and tremendously valuable interview of Juenger at his home when he was one-hundred years old. I’ve learned through emails with the Swedish producer of the film that, due to unspecified copyright issues, the film, which contains the last filmed interviews ever made with Juenger, is no longer available anywhere, for purchase or otherwise, although according to the producer it “still exists in the Swedish Film Institute Library for research purposes.” In this last interview Juenger corrected the interviewer by clarifying that the anarch is not a (or Juenger’s) “position,” but a “possibility.” By day the anarch might be a civil servant, while at night among his books he “thinks his thoughts.” What distinguishes the anarch is that he “doesn’t interfere.”

But perhaps the best proof that the forest-goer is not “weaker than the anarch” but rather his fulfillment is that Eumeswil itself culminates in a Great Hunt, a Forest Passage, undertaken not only by the anarch but by his pendant, the monarch, from which no one ever returns. The short Epilogue, written by the narrator’s brother, begins: “My brother, Martin Venator, who vanished years ago with the tyrant and his retinue, has now been declared legally dead.”

And is not Death, that inevitability by which we are all ultimately expelled from society, itself a Forest Passage?




A Case in Point

February 28, 2014 By: John Kindley Category: Uncategorized

Some state appellate courts have for years posted on their website not only their written opinions but also the briefs filed by the parties in the appellate court. See, e.g., on the North Dakota Supreme Court’s website, the briefs I filed in 2003 in Kjolsrud v. MKB Management dba Red River Women’s Clinic, a false advertising case based on the scientific evidence linking induced abortion with increased breast cancer risk. This is a good practice, as it allows interested members of the public to readily compare how well the court’s opinions address the arguments made in the parties’ briefs.

The website of the Indiana Supreme Court and the Indiana Court of Appeals, on the other hand, only posts the courts’ opinions, and does not post the parties’ briefs on which those opinions are based.

I’ve copied below the appellate briefs I filed in a case decided today by the Indiana Court of Appeals. You can read and compare the Indiana Court of Appeals’ decision on its website.



I.          Whether _____ was entitled to discharge under Indiana Rule of Criminal Procedure 4(C).

II.        Whether _____ was deprived of his right to a speedy trial under the federal and state constitutions.


            An information charging _____ _____ with Child Molesting, a Class C Felony, was filed on July 31, 2009, and _____ was arrested on this charge on August 7, 2009. Appellant’s Appendix (hereinafter “App.”) p. 16, 20. Bond was set at $50,000.00. App. p. 18. _____ requested a bond reduction, and the court ordered the Probation Department to prepare a Bail Review Pre-trial Release Report. App. p. 19. This Report recommended a bond reduction, concluding: “According to the Elkhart County bond schedule, Mr. _____’s bond could be set at $5,000.00. It is presently set at $50,000.00. Mr. _____ reported his bond would need to be reduced to $10,000, in order for him to be able to post bond.” App. p. 22-23. Nevertheless, on September 3, 2009 the court denied _____’s request for a bond reduction and reconfirmed the bond in the amount of $50,000.00. App. p. 24.

At a pre-trial conference held on March 25, 2010, _____’s first trial date was scheduled, for November 8, 2010. Tr. p. 3. On October 28, 2010, the State filed a motion to continue the November 8th trial date due to court congestion. App. p. 30. On November 3, 2010, the court granted, without a hearing, the State’s motion. The order granting the continuance did not “also set the case for trial within a reasonable time,” as directed by Criminal Rule 4, but set a pre-trial conference for December 16, 2010. App. p. 31. Subsequent and similar orders continuing scheduled trial dates “due to court congestion” were entered on January 18, 2011; June 10, 2011; August 15, 2011; January 30, 2012; June 1, 2012; and September 11, 2012. App. p. 55, 70, 71, 101, 126, 128. _____ would not released from jail until May 25, 2012, and would be not tried until February 11, 2013.

On December 2, 2010, _____ filed a Motion For Release From Jail On Own Recognizance, arguing that, counting 154 days (the period of time from October 22, 2009 until March 25, 2010) as chargeable to _____ pursuant to Criminal Rule 4(A), the six-month period within which a defendant must be tried or released from jail on his own recognizance pursuant to Criminal Rule 4(A) had already concluded. App. p. 32.

At the pre-trial conference held on December 16, 2010, the court proposed a trial date of February 28, 2011. Counsel for _____ responded that according to her calculations the last date by which to try _____ within the one-year period allowed by Criminal Rule 4(C) would be January 31, 2011, and that _____ was not acquiescing to a trial date outside the one-year period. The court then set a trial date of January 24, 2011. Tr. p. 41-42.

On December 29, 2010, the State filed a Response opposing _____’s Motion For Release From Jail On Own Recognizance, and on February 22, 2011, the court denied _____’s Motion. App. p. 35, 56.

On February 24, 2011, _____ filed a Motion For Discharge Pursuant To Criminal Rule 4(C), which the court denied on March 8, 2011. App. p. 61, 64.

On September 15, 2011, _____ filed a Motion To Dismiss Based On Violation Of Constitutional Right To Speedy Trial, and orally renewed his motion to be released on his own recognizance. App. p. 72; Tr. p. 67. On September 26, 2011, the State filed a Response opposing _____’s Motion. App. p. 75. On October 31, 2011, the court denied _____’s Motion To Dismiss and oral motion to be released on his own recognizance. App. p. 93.

On April 26, 2012, _____ filed in the Indiana Supreme Court a Petition for Writ of Mandamus and Writ of Prohibition as an Original Action under Cause Number 20S00-1204-OR-239, petitioning the Supreme Court for a writ ordering the trial court to dismiss the charge based on violation of _____’s constitutional right to a speedy trial, or in the alternative ordering the trial court to order _____ released from jail on his own recognizance pending trial. In a published order entered on May 24, 2012, the Indiana Supreme Court determined that _____ had “been ‘detained in jail on a charge, without a trial, for a period in aggregate embracing more than six (6) months,’ as that period is calculated under Criminal Rule 4(A), and that Criminal Rule 4(A) requires his release from jail.” State ex rel. _____ v. Elkhart Superior Court No. 3, 969 N.E.2d 590 (Ind. 2012). The Court denied _____’s request for dismissal based on the alleged violation of his constitutional right, but “without prejudice to Relator raising those issues in an appeal if he is convicted after a trial.” Id. At 591. On May 25, 2012, the trial court ordered _____ released from jail pursuant to the Order of the Indiana Supreme Court. App. p. 125.

On February 5, 2013, _____ filed a Motion For Discharge Based On Denial Of Right To Speedy Trial, which the court denied on February 7, 2013. App. p. 129; Tr. p. 102.

On February 11, 2013, the trial of this case commenced, and _____ was found guilty upon the verdict of the jury on February 12, 2013. On March 19, 2013, the Judgment of Conviction was entered, and _____ was sentenced to the Indiana Department of Correction for a period of six (6) years. App. p. 133. _____ timely filed with the Clerk his Notice of Appeal on April 17, 2013. The trial court clerk served a Notice of Completion of Transcript on July 15, 2013. App. p. 134. Following the inclusion of a supplemental transcript into the Appellate Transcript and an Amended Notice of Filing of Transcript by a court reporter of the trial court, the trial court clerk served a supplemental Notice of Completion of Transcript on August 12, 2012. App. p. 135. This brief is timely filed within thirty days thereafter.


            On March 25, 2010, _____’s first trial date was scheduled, for November 8, 2010, at a pre-trial conference in which the following colloquy occurred:

MR. KINDLEY: Judge, I think we’re just looking for a trial date.

THE COURT: The earliest date I can give you where you have a reasonable expectation of proceeding at trial is November 8th of this year. There are two cases which are older than you client’s, which are ahead of him on that date, but there – he would be third in line, and that would give him a reasonable possibility of proceeding to trial on that date?

Do you want that date?

MR. KINDLEY: Yes, Judge.

THE COURT: Is that acceptable to the state?

MS. SNYDER: It is, your Honor.

THE COURT: May I show that by agreement of the parties?

MS. SNYDER: Yes, by the state, your Honor.

MR. KINDLEY: Yes, Judge.

Tr. p. 3.

On February 22, 2011 the court denied _____’s Motion For Release From Jail On Own Recognizance, based on its finding that the two hundred twenty-two (222) days between March 26, 2010 and November 3, 2010 were attributable to _____ for Criminal Rule 4 purposes because at the pre-trial conference held on March 25, 2010 his counsel had not merely “acquiesced” to the November 8, 2010 trial date but had “affirmatively agreed” to it, even though _____ had only “agreed” to that trial date after the court informed him that the “earliest date I can give you where you have a reasonable expectation of proceeding at trial is November 8th of this year.” App. p. 59-60. This was the rationale argued by the State in its Response opposing _____’s Motion For Release From Jail On Own Recognizance. App. p. 35.

At a pre-trial conference held on July 14, 2011, the following colloquy occurred:

THE COURT: I can give him a first setting on December 5th.

MR. KINDLEY: December 5th?

THE COURT: I can’t, obviously, can’t promise that will remain a first setting, but right now he’s a first setting.


THE COURT: I can do that, or I can give him an earlier setting but only behind other cases and –

MR. KINDLEY: Well, Judge –

THE COURT: — we’ll go through the same exercise again.

MR. KINDLEY: Okay. Well, Judge, it’s also – I do think I do need to make a record here, as far as setting this. We previously filed C.R.4 motions for dismissal, also for release on own recognizance. Apart from the C.R.4 issue, there is the issue of the constitutional right to a speedy trial, which is considered separate; so even if the C.R.4 is followed, if there are continuing resettings, then you can run into a constitutional violation of the right to speedy trial. I –

THE COURT: I’ll take my chances.

MR. KINDLEY: Okay. I do think it’s also an important factor that he has been – he’s already been incarcerated for longer than the advisory sentence. So the effect of the situation is to sort of present a kind of pressure to plead when he’s already been in longer than the advisory sentence. There’s no chance he wouldn’t show up for trial because if he is –

THE COURT: What are you asking me to do?

MR. KINDLEY: I’m asking him to be released on his own recognizance, Judge.

THE COURT: Your request is denied.

Now, do you want this December 5th trial date or not?

MR. KINDLEY: I do, subject to the record I just made, Judge.

THE COURT: Fine. I’ll give you an earlier trial date.

I’m only going to do that if you agree to it. If you don’t agree to it, I’ll set it for an earlier date, and he’ll take his chances as far as older cases. My procedure in this court is to try the oldest case in which the defendant is in custody on a given date and work through the calendar using that criteria. It’s been approved by the Court of Appeals. If you don’t want me – I’ve offered you what I think is going to be a first setting; you don’t want it. You want an earlier one; I’ll give you an earlier one. But you need to understand that the same thing that happened on June 20th is likely to happen with regard to an earlier setting. You choose.

MR. KINDLEY: Well, Judge, my point is, is that whether it’s an earlier setting or whether it’s a later setting, I want to preserve our objection to any setting, based on C.R.4 issues and the constitutional right to a speedy trial. I mean, given the option, subject to that record, given the option, December 5th as a first setting sounds like –

THE COURT: Is that an agreed setting or not?

MR. KINDLEY: Subject to –

THE COURT: Fine. The case is scheduled for trial on August 8th. At this point in time, there are –

MS. SNYDER: Your Honor, I show five plus a speedy trial.

THE COURT: Pardon?

MS. SNYDER: I show five cases ahead of him plus a speedy trial.

THE COURT: I understand.

MR. KINDLEY: Judge, subject to – and I think I have a right to, you know, just make a record as far as my objections go –

THE COURT: You’ve made your record, Counsel. I asked you if that was an agreed setting; you declined to agree to it. That being the case, I’ll give you the earliest possible setting, but I’ll have to continue to follow my rules. I’m going to have to make it August 22.

MS. SNYDER: August 22, Judge?


MR. KINDLEY: August 22?

THE COURT: Correct.


THE COURT: Yes. At this point there are one –

MS. SNYDER: I show three before him, your Honor.

THE COURT: — two, three older cases.

MS. SNYDER: I think I stand corrected at four, Judge, I may have confused you–

THE COURT: Whatever it is, it is.

MS. SNYDER: Yes, sir.

MR. KINDLEY: So that’s August 22nd?



Tr. p. 58-61.

At the pre-trial conference held on February 23, 2012, the following colloquy occurred:

THE COURT: We are here today to select a trial date in your case. Your case was scheduled for trial on February 6, 2012. It was continued due to court congestion due to the trial of State vs. Mahamat Outman, an older case in which the defendant was also in custody. We need to select a new trial date for your case. I can give you July 9. And there would be at this point only one case ahead of you on that date. I can’t promise you that it will stay that way, but that’s the situation on July 9.

THE COURT: I can also give you May 7. I think there is one ahead of you on May 7.


            THE COURT: Do the parties want a moment to discuss the trial date?

MS. SNYDER: Do you want a moment to discuss my thoughts as to the priority? Can we have just a moment, your Honor?

THE COURT: Yes, “just a moment.”


THE COURT: Which of the two that I suggested do you want?

MR. KINDLEY: Well, Judge, I do need to make a record as I have done in this case.

THE COURT: You can answer my question.

MR. KINDLEY: Well, Judge, of the two, July 9th; but I would not –

THE COURT: Pardon.

MR. KINDLEY: Of the two, July 9th, Judge; but I do need to make a record that in our opinion pursuant to motions that we have previously filed, the Defendant’s Constitutional rights to a speedy trial have already been violated. The case should be discharged. We also object to his continued detention pending trial for over two years now. So I need to make that record; but subject to that, of the two dates that have been offered, July 9th is acceptable.

THE COURT: Does the State agree?

MS. SNYDER: Well, not to what he said, but the State agrees to the trial date.

THE COURT: I don’t agree to what he said either. I think it is an frivolous motion; but as far as the trial date of July 9th, does the State agree?

MS. SNYDER: Absolutely, your Honor.

THE COURT: And I am not taking this as a new motion. I think that’s already been litigated. If you want to litigate it again, you will have to file a new motion. Now that may delay your trial date, you understand.

MS. DUERRING: We have already decided, your Honor. There will be no new motions filed.

THE COURT: That’s fine.

Tr. p. 79-81.

On May 15, 2012, the trial judge filed a copy of his signed Affidavit Supplementing the Record in Cause No. 20D03-0907-FC-00018, and forwarded to his counsel in the Original Action pending in the Indiana Supreme Court the Affidavit, which was attached to the judge’s Response to _____’s Petition for Writ of Mandamus and Writ of Prohibition filed in the Original Action, Cause No. 20S00-1204-OR-239. App. p. 9, 102. Paragraph 13 of the Affidavit states:

Mr. _____’s next trial date was February 6, 2012. That trial was continued due to court congestion, specifically the trial of Mahamat A. Outman, whose case was filed under cause number 20D03-1003-FA-11. It should be noted that while Mr. Outman’s case was filed after Mr. _____’s, Mr. Outman was in custody and demanded an early trial pursuant to C.R. 4(B). The Court honored that demand. Please see a portion of the Chronological Case Summary relating to that case which is attached hereto.

App. p. 104.

The portion of the Chronological Case Summary relating to Mr. Outman’s case attached to the Affidavit indicates that Mr. Outman’s case was filed on March 11, 2010, while _____’s case was filed on July 31, 2009. App. p. 117, 122.


             _____ was entitled to discharge under Indiana Rule of Criminal Procedure 4(C) because he was held to answer the criminal charge against him for more than one year, not counting delays caused by him or by legitimate court congestion. In particular, on January 30, 2012, at which time _____ had been held in custody since August 7, 2009, the court on its own motion, outside of any scheduled hearing and without affording _____ any opportunity to object, vacated _____’s February 6, 2012 trial date due to “court congestion.” The order continuing the trial date did not “also set the case for trial within a reasonable time,” as directed by Criminal Rule 4, but set a pre-trial conference for February 23, 2012 for the purpose of selecting a new trial date. App. p. 101. At the pre-trial conference held on February 23, 2012, the court stated: “We are here today to select a trial date in your case. Your case was scheduled for trial on February 6, 2012. It was continued due to court congestion due to the trial of State vs. Mahamat Outman, an older case in which the defendant was also in custody.” Tr. p. 79. However, as the court revealed in its Affidavit Supplementing the Record in Cause No. 20D03-0907-FC-00018, dated May 15, 2012 and attached to the court’s Response to _____’s Petition for Writ of Mandamus filed in the Indiana Supreme Court, Mr. Outman’s case was not in fact “older” than Mr. _____’s but rather “was filed after Mr. _____’s.” App. p. 104. Specifically, Outman’s case was filed on March 11, 2010, while _____’s had been filed on July 31, 2009. App. p. 117. The circumstance that Outman may have filed a motion for an early trial pursuant to Criminal Rule 4(B) within seventy days of _____’s February 6, 2012 trial date did not give his case precedence over _____’s, particularly given that _____’s case was past the one-year deadline imposed by Criminal Rule 4(C) and _____ had not acquiesced to a trial setting outside the Rule 4(C) one-year deadline. Tr. p. 41-42. Therefore, the court’s vacation of _____’s February 6, 2012 trial date due to “court congestion” was clearly erroneous.

_____ was also entitled to discharge because he was deprived of his right to a speedy trial under the federal and state constitutions. The inquiry as to whether a defendant has been denied a speedy trial under the Sixth Amendment and the Indiana Constitution involves balancing a number of factors, particularly: (1) the length of delay; (2) the reason for the delay; (3) the defendant’s assertion of the right to a speedy trial; and (4) any resulting prejudice to the defendant. Danks v. State, 733 N.E.2d 474 (Ind.Ct.App.2000) (citing Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)), trans. denied. First, the length of time _____ spent in jail, and the length of time between his arrest and his trial, were several times greater than, respectively, the six-month and one-year benchmarks indicated by Criminal Rule 4(A) and 4(C), which are supposed to make concrete the right to speedy trial. Second, the reasons for two substantial delays in particular were especially erroneous: specifically, (1) the continuance described in the first paragraph of this Summary of Argument, and (2) the court’s punitive imposition at the pre-trial conference held on July 14, 2011 of an obviously illusory trial date because _____ insisted on making clear for the record that the “agreement” he was being asked to make to a later, but first setting, trial date would not be construed as making any associated delay chargeable to him for speedy trial purposes. Tr. p. 58-61. Furthermore, the State did not have to oppose _____’s repeated motions to be released from jail on his own recognizance, but did so in the first instance by urging on the court a strained interpretation of Indiana Supreme Court precedent, and continued to do so even after the length of _____’s detention as a result of repeated continuances “due to court congestion” began to make a mockery of Rule 4(A). Third, _____ diligently asserted his right to a speedy trial throughout the proceedings below. Fourth, with respect to prejudice, the delay in _____’s prosecution resulted in oppressive pretrial incarceration and undue anxiety, and possibly impaired his defense in ways he cannot prove or even identify. Furthermore, although Indiana courts have placed the burden of demonstrating actual prejudice on the defendant to prove a speedy trial deprivation, a showing of prejudice is unnecessary, and may be presumed, where consideration of the first three Barker factors coalesce in the defendant’s favor, as they do here. Fisher v. State, 933 N.E.2d 526, 530, 532-33 (Ind.Ct.App. 2010).               


I.          _____ was entitled to discharge under Indiana Rule of Criminal Procedure 4(C).

Because the speedy-trial issue presented involves a pure question of law, the appropriate standard of review is de novo. Cundiff v. State, 967 N.E.2d 1026, 1027 (Ind. 2012).

Indiana Criminal Rule 4(C) provides:

No person shall be held on recognizance or otherwise to answer a criminal charge for a period in aggregate embracing more than one year from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge, whichever is later; except where a continuance was had on his motion, or the delay was caused by his act, or where there was not sufficient time to try him during such period because of congestion of the court calendar; provided, however, that in the last-mentioned circumstance, the prosecuting attorney shall file a timely motion for continuance as under subdivision (A) of this rule. Provided further, that a trial court may take note of congestion or an emergency without the necessity of a motion, and upon so finding may order a continuance. Any continuance granted due to a congested calendar or emergency shall be reduced to an order, which order shall also set the case for trial within a reasonable time. Any defendant so held shall, on motion, be discharged.

The criminal case of Mahamat Outman, which was filed more than seven months after _____’s, was not entitled to the priority the trial court gave Outman when it bumped _____ from his February 6, 2012 trial date in favor of Outman, even if Outman moved for an early trial pursuant to Criminal Rule 4(B).

In Clark  v. State, 659 N.E.2d 548, 552 (Ind. 1995), the Indiana Supreme Court stated:

Upon an incarcerated defendant’s request for a speedy trial, Criminal Rule 4(B) requires particularized priority treatment. The rule is not satisfied merely by scheduling such a case for trial at the next date available for criminal cases or for cases generally. Rather, it must be assigned a meaningful trial date within the time prescribed by the rule, if necessary superseding trial dates previously designated for civil cases and even criminal cases in which Criminal Rule 4 deadlines are not imminent.

Id. at 551 (emphasis added).

In Bridwell v. State, 640 N.E.2d 437 (Ind.Ct.App. 1994), the Indiana Court of Appeals stated:

Ideally, the oldest cases should be tried first, those defendants with speedy trial requests given priority, and no case left pending more than one year.

Id. at 439 (emphasis added).

This language in these cases supports the most natural interpretation of Criminal Rule 4: namely, that the priority given to Rule 4(B) requests applies only relative to cases that have not been pending more than one year and in which the Rule 4(C) deadline is not imminent. That is, Rule 4(B) does not trump Rule 4(C). This interpretation of Rule 4(B) is supported by the fact that a motion pursuant to Rule 4(B) is described by the Rule itself as a “Motion for Early Trial” (emphasis added). The notion that a defendant is obliged to file a “Motion for Early Trial,” demanding to be tried within seventy (70) days, after his case has been pending more than one year and he has expressly refused to acquiesce to a trial date outside the Rule 4(C) deadline, in order to let the court and the State know that he is really serious about his right to be tried within one year pursuant to Rule 4(C) and about his speedy trial rights in general, is unsupported by the plain language of Criminal Rule 4 or case law. Such a motion in such circumstances would be superfluous and redundant. In this case, on December 16, 2010 _____ asserted his right pursuant to Criminal Rule 4(C) to be tried no later than January 31, 2011, or in other words, within approximately forty-five (45) days. Tr. p. 41-42. That is, he asserted his right pursuant to Criminal Rule 4(C) to be tried within an even shorter period of time than the seventy (70) days allowed following a motion pursuant to Rule 4(B).

The fact that a criminal defendant does not elect to move for an early trial within seventy (70) days pursuant to Criminal Rule 4(B) does not detract from his right to a trial within one year pursuant to Criminal Rule 4(C), or from his constitutional right to a speedy trial in general. The one year time limit prescribed by Criminal Rule 4(C) is as much a “bright line rule” as the seventy (70) day time limit prescribed by Rule 4(B), and both Rules equally contain the “congested calendar” exception.

II.        _____ was deprived of his right to a speedy trial under the federal and state     constitutions.

The Indiana Court of Appeals summarized the applicable standard of review and law as follows in Fisher v. State, 933 N.E.2d 526, 530 (Ind.Ct.App. 2010):

In evaluating whether delay has violated a defendant’s constitutional rights, we review issues of fact using a clear error standard and questions of law de novo. State v. Azania, 865 N.E.2d 994 (Ind.2007) (citing United States v. Thomas, 167 F.3d 299 (6th Cir. 1999); United States v. Smith, 94 F.3d 204 (6th Cir.1996); and United States v. Clark, 83 F.3d 1350 (11th Cir.1996)), clarified on reh’g on other grounds 875 N.E.2d 701.

The right of an accused to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution and by article 1, section 12 of the Indiana Constitution. Clark v. State, 659 N.E.2d 548 (Ind.1995). This “fundamental principle of constitutional law” has long been zealously guarded by our courts. Id. at 551. Thus, to answer the broad question posed by this case: yes, the State has an affirmative duty to pursue prosecution of criminal defendants. Such duty arises out of the criminal defendant’s constitutional right to a speedy trial.

The inquiry as to whether a defendant has been denied a speedy trial under the Sixth Amendment involves balancing a number of factors: (1) the length of delay; (2) the reason for the delay; (3) the defendant’s assertion of the right to a speedy trial; and (4) any resulting prejudice to the defendant. Danks v. State, 733 N.E.2d 474 (Ind.Ct.App.2000) (citing Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)), trans. denied. “[N]one of the four factors … [is] either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant.” Barker v. Wingo, 407 U.S. at 533, 92 S.Ct. 2182. The Barker analysis is triggered where the delay exceeds one year. Danks v. State, 733 N.E.2d 474 (citing Doggett v. United States, 505 U.S. 647, 652 n. 1, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992)). Indiana has employed the same balancing test to evaluate speedy trial claims pursued under our state constitution. Sturgeon v. State, 683 N.E.2d 612 (Ind.Ct.App.1997), trans. denied.

            A.         The length of delay

            Here, _____ was charged on July 31, 2009 and arrested on this charge on August 7, 2009. He remained in jail on this charge until the Indiana Supreme Court ordered him released from jail on May 24, 2012. He was not tried until February 11, 2013. The trial court attributed all of the delay in this case from November 3, 2010 to “court congestion.” App. p. 60. In Bridwell v. State, 640 N.E.2d 437 (Ind.Ct.App. 1994), which like _____’s case involved repeated continuances of the trial date due to court congestion but unlike _____’s case involved a defendant who’d been released on bond, the Court of Appeals found no violation of Criminal Rule 4(C) but noted: “That is not to say that repeated continuances due to court congestion will never be held to have violated Crim.R. 4(C) or to have transcended constitutional boundaries. There is a point where delay, regardless of the justification, violates the right to a speedy trial.” Id. at 439. In _____’s case, more than twenty-seven months of delay attributed to court congestion elapsed before he was tried, a period of time which by itself (i.e., apart from the more than fourteen months _____ spent in jail prior to November 3, 2010) was more than double the one year period contemplated by Criminal Rule 4(C). He spent more than eighteen of these twenty-seven months in jail, a period of time which by itself (i.e., apart from the more than fourteen months the _____ spent in jail prior to November 3, 2010), was more than triple the six month period contemplated by Criminal Rule 4(A). In this case the court congestion exception has therefore swallowed Criminal Rule 4(C) twice over, and Criminal Rule 4(A) three times over. Cf. Vermillion v. State, 719 N.E.2d 1201, 1206 (Ind. 1999) (noting that many courts, for purposes of the Sixth Amendment right to a speedy trial, find the passage of approximately one year between charging and trial “presumptively prejudicial”). If, as the Court of Appeals stated in Bridwell, supra, “[t]here is a point where delay, regardless of the justification, violates the right to a speedy trial,” _____ respectfully suggests to this Court that that point is definitely reached, if it is not reached sooner, when the period of delay caused by the court congestion exception exceeds, as it has done here, the underlying time periods allowed by the Criminal Rule that that exception is intended to modify (but not render meaningless). _____ also respectfully suggests to this Court that that point is definitely reached when the period of time a defendant has been detained in jail without trial exceeds, as it has done here, the advisory sentence for the crime he is charged with, since by that point the purpose of imposing bail, which is to ensure the presence of the accused when required, is largely vitiated. Lake County Clerk’s Office v. Smith, 766 N.E.2d 707, 709 (Ind. 2002).

            B.         The reason for the delay

            But for the court’s clearly erroneous finding of court congestion relative to the case of Mahamat Outman, as described above, _____ would have been tried on February 6, 2012. Because _____ was not tried until February 11, 2013, this error was the reason for more than a year of delay in bringing _____ to trial. In fact, but for an earlier error by the trial court _____ would have been tried on December 5, 2011. At the July 14, 2011 pre-trial conference, as described above, the trial court initially offered _____ this date as a first setting. In the dialogue that followed counsel for _____ told the court several times that he wanted that trial date, subject to _____’s previous objections based on Criminal Rule 4, _____’s objection to his continued detention pending trial, and _____’s constitutional right to a speedy trial. Because _____ would only “agree” to the December 5, 2011 trial date subject to the record that _____ had made in order to preserve his objections, the court instead gave _____ a different trial date, August 22, 2011, on which three or four cases were ahead of _____’s. Tr. p. 58-61.

_____ had every right to make a record of his objections and to clarify for the record that his “agreement” to the December 5, 2011 trial date was subject to those objections, particularly since in denying _____’s earlier motion for release from jail on his own recognizance the court had relied on his finding that _____ on March 25, 2010 had “agreed” to the initial November 8, 2010 trial date and that because of _____’s “agreement” to that trial date two hundred twenty-two (222) days of delay were attributable to _____ for Criminal Rule 4 purposes. App. p. 60. The court’s demand that _____ “choose” between a first setting trial date or an earlier but illusory trial date is contrary to the fundamental principle that it is the State’s and not the defendant’s obligation to bring the defendant to trial within a constitutionally permissible period of time. The court essentially penalized _____ with an illusory trial date for exercising his right to preserve for the record his objections, and this penal act by itself violated _____’s constitutional right to a speedy trial. Had the court not improperly penalized _____ in this manner, _____’s case would have gone to trial on December 5, 2011. Therefore, this error was the reason for more than fourteen months of delay in bringing _____ to trial.

            C. The defendant’s assertion of the right to a speedy trial

            _____, who had been detained in jail since August 7, 2009, first asserted his right to be released from jail on his own recognizance pursuant to Criminal Rule 4(A) in a motion filed on December 2, 2010, shortly after the Respondent vacated _____’s initial November 8, 2010 trial date due to court congestion. App. p. 32. At the pre-trial conference held on December 16, 2010, _____ asserted his speedy trial rights by expressly refusing to acquiesce to a trial date outside the one year period established by Criminal Rule 4(C). Tr. p. 41-42. _____ again asked to be released on his own recognizance at a pre-trial conference held on July 14, 2011. Tr. p. 58-61. At that point in time _____ had been detained in jail for almost two years, which, with good-time credit, meant he had already “served” the advisory sentence for the crime he was charged with, even though he had not been convicted of anything and was presumed innocent. _____ had previously filed on February 24, 2011 a motion for discharge pursuant to Criminal Rule 4(C), which the court denied on March 8, 2011.

_____’s counsel stated to the court at the pre-trial conference on July 14, 2011: “Apart from the C.R.4 issue, there is the issue of the constitutional right to a speedy trial, which is considered separate; so even if the C.R.4 is followed, if there are continuing resettings, then you can run into a constitutional violation of the right to speedy trial.” _____ argued to the court that the effect of the his ongoing detention was to put pressure on _____ to plead guilty in order to get out of jail more quickly, and that because he had already “served” so much time there was no chance he wouldn’t show up for trial, because even if convicted he would not face much more time than he had already done. The court flatly denied the _____’s request to be released on his own recognizance. Tr. p. 58-61.

Following this hearing, and after the illusory trial date set by the court at that hearing had been vacated due to court congestion, _____ filed on September 15, 2011 a motion to dismiss based on violation of his constitutional right to a speedy trial, which the court denied on October 31, 2011. App. p. 93. Also on September 15, 2011 _____ again asked the court at the pre-trial conference held on that date to be released on his own recognizance. Tr. p. 67. Finally, at the hearing held on February 23, 2012, shortly before _____ filed his Petition for Writ of Mandamus and Writ of Prohibition in the Indiana Supreme Court, _____ again reiterated his objection to his ongoing detention pending trial, to no avail. Tr. p. 79-81.

            D.        Any resulting prejudice to the defendant

            The United States Supreme Court in Barker v. Wingo, 407 U.S. 514 (1972), explained this factor as follows:

Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.

. . .

We have discussed previously the societal disadvantages of lengthy pretrial incarceration, but obviously the disadvantages for the accused who cannot obtain his release are even more serious. The time spent in jail awaiting trial has a detrimental impact on the individual. It often means loss of a job; it disrupts family life; and it enforces idleness. Most jails offer little or no recreational or rehabilitative programs. The time spent in jail is simply dead time. Moreover, if a defendant is locked up, he is hindered in his ability to gather evidence, contact witnesses, or otherwise prepare his defense. Imposing those consequences on anyone who has not yet been convicted is serious. It is especially unfortunate to impose them on those persons who are ultimately found to be innocent.

Id. at 532-33.

Here, the delay in prosecution resulted in oppressive pretrial incarceration and undue anxiety, and possibly impaired _____’s defense in ways _____ cannot prove or even identify. It may be inferred from the Indiana Supreme Court’s issuance of its Writ of Mandamus that _____ had been held in jail in violation of Criminal Rule 4(A) from July 11, 2010 until his ordered release on May 24, 2012, a period of almost two years. App. p. 59. (_____ had been held in jail on the charges in this case since August 7, 2009, and 154 days of delay were chargeable to the Defendant.) Although Indiana courts have placed the burden of demonstrating actual prejudice on the defendant to prove a speedy trial deprivation, a showing of prejudice is unnecessary, and may be presumed, where consideration of the first three Barker factors coalesce in the defendant’s favor, as they do here. Fisher v. State, 933 N.E.2d 526, 530, 532-33 (Ind.Ct.App. 2010)    


            For the reasons set forth above, _____’s conviction should be reversed and the charges against him dismissed.



            _____ has established a violation of Indiana Criminal Rule 4(C), because, contrary to the argument of the Attorney General, as a matter of law the filing of a motion for an early trial under Criminal Rule 4(B) by another defendant did not give that defendant priority over _____, when _____ had been charged and in custody longer than that defendant, and when _____ had been held to answer the charge for longer than the one year period allowed by Criminal Rule 4(C) and had expressly refused to acquiesce to a trial setting outside that one year period.

_____ has also established a violation of his constitutional right to a speedy trial, because, contrary to the argument of the Attorney General, his early and repeated assertions of his right to a speedy trial under Criminal Rules 4(A) and 4(C) amounted to an assertion of his constitutional right to a speedy trial, the reasons for more than a year of the delay in bringing him to trial were improper, and the almost three years he spent in jail awaiting trial and the almost four years between the date of his arrest and the date of his trial constituted prejudicial and oppressive pretrial incarceration and caused him prejudicial and unnecessary anxiety and concern.


I.          _____ has established a violation of Indiana Criminal Rule 4(C).

The Attorney General argues that “since _____ had not file [sic] a Criminal Rule 4(B) speedy trial request, it was not improper for the trial court to prioritize the case of the defendant [Mahamat Outman] who had filed a Criminal Rule 4(B) speedy trial request,” even though Outman’s case was filed more than seven months after _____’s, and even though _____ had been detained in jail on his charges for more than one year and had expressly refused to acquiesce to a trial date outside the one year period allowed by Criminal Rule 4(C). Appellee’s Brief p. 10. According to the Attorney General, “if _____ wished to be tried before Outman, he could have filed a motion under Rule 4(B).” Id.

_____ has already explained in his Appellant’s Brief why filing a motion under Rule 4(B) would have been superfluous and redundant in these circumstances, and writes in order to reply to the Attorney General’s reliance on Austin v. State, No. 20S03-1303-CR-158, decided by the Indiana Supreme Court on November 15, 2013. As a preliminary, albeit significant, matter, however, it should be noted that at no time, during the various hearings at which _____ asserted his speedy trial rights, did the trial court inform _____ that it was the trial court’s policy to give priority to defendants who’d filed motions for early trial under 4(B) even over defendants who’d been in custody longer and who were past the one year 4(C) deadline, nor ask _____ when he asserted his speedy trial rights whether he was moving for an early trial under 4(B). To the contrary, as noted by the Attorney General, the trial court informed _____ that it was the court’s practice to “try the oldest case in which the defendant is in custody on a given date and work through the calendar using that criteria.” Appellee’s Brief p. 13. But as reaffirmed by the Indiana Supreme Court in Austin, Indiana’s Criminal Rule 4 “places an affirmative duty on the State to bring the defendant to trial . . . ,” not on the defendant. Austin, slip op. at 11. A trial court’s policy placing an affirmative duty upon the defendant to file a motion for an early trial under 4(B), after he has already expressly refused to acquiesce to a trial date outside the one year 4(C) deadline, to let the court and the State know that he is really serious about his right to a speedy trial, would be as or more improper than the trial court policy described in Alter v. State, 860 N.E.2d 874, 878-79 (Ind.Ct.App. 2007), which “require[ed] defense counsel to contact the court staff at least ten days prior to a trial date to direct the court staff to call a jury, and that any failure to so notify the court would result in a continuance charged to the defense.” The court in Alter noted that, because it was resolving the Criminal Rule 4 issue in favor of the defendant on different grounds, “we find it unnecessary to address the propriety of this rule with respect to Criminal Rule 4.” Id. at 879 fn. 8. Furthermore, defense counsel in Alter presumably had received notice of the trial court’s policy. In _____’s case, by contrast, the trial court maintained silence on its unwritten and already-improper policy, and conspicuously so, since the court did not voice it on any of the occasions when it would have been most natural to do so.

The Attorney General cites Austin for the proposition that “absent extenuating circumstances, a defendant seeking a speedy trial would almost invariably be entitled to a trial setting ahead of any criminal defendant who had not filed a Rule 4 motion.” Austin, slip op. at 16-17. However, the court in Austin also cites the language in Clark v. State, 659 N.E.2d 548 (Ind. 1995) already cited in the Appellant’s Brief, to the effect that a case in which a defendant has filed a motion for an early trial pursuant to Criminal Rule 4(B) “must be assigned a meaningful trial date within the time prescribed by the rule, if necessary superseding trial dates previously designated for civil cases and even criminal cases in which Criminal Rule 4 deadlines are not imminent.” Id. at 551 (emphasis added). See also Bridwell v. State, 640 N.E.2d 437, 439 (Ind.Ct.App. 1994), trans. granted, affirmed in part and vacated in part by Bridwell v. State, 659 N.E.2d 552 (Ind. 1995) (“Ideally, the oldest cases should be tried first, those defendants with speedy trial requests given priority, and no case left pending more than one year.” (Emphasis added.)) Therefore, it appears that the imminence of a Criminal Rule 4(C) deadline should be counted among those “extenuating circumstances” referred to in Austin. This interpretation is confirmed by Austin itself:

Both Criminal Rules 4(A) and 4(C) also contain language providing for continuances due to a congested calendar or emergency, and for then setting the trial within a reasonable time. We see no reason why the analysis for those issues arising under those rules would—or should—be any different than the analysis under Rule 4(B). Thus, our view is that this opinion’s analysis in the context of Criminal Rule 4(B) should apply with equal force to Criminal Rules 4(A) and 4(C).

Austin, slip op. at 12, fn. 8.

Furthermore, Austin notes: “Though commonly referred to as the ‘speedy trial rule,’ and motions filed thereunder as ‘motions for a speedy trial,’ we point out that the rule technically guarantees an ‘early’ trial. Ind. Crim. Rule 4(B).” Id. at 11, fn. 7. This supports _____’s contention that when the one year period allowed by Criminal Rule 4(C) has passed, and the defendant has not acquiesced to a trial date outside the one year deadline, filing a motion for an early trial pursuant to Criminal Rule 4(B) would be superfluous and redundant.

II.        _____ has established a violation of his constitutional right to a speedy trial.

            A.         Length of Delay

            The Attorney General concedes that, “since there is no dispute that the delay in this case exceeded a year, _____ clears the first hurdle, and analysis under the remaining Barker factors is required.” Appellee’s Brief p. 11. However, length of delay is not only – or even, as the Attorney General contends, “largely” — a “triggering factor,” triggered by a delay of one year. Rather, the longer the delay, the more likely it becomes that the delay has violated the defendant’s constitutional right to a speedy trial.

            B.         Assertion of Right

            The Attorney General argues that, for purposes of the Barker analysis, neither _____’s motion under Criminal Rule 4(A) to be released on his own recognizance filed on December 2, 2010, nor his refusal at a hearing on December 16, 2010 to acquiesce to a trial date outside the one year period established by Criminal Rule 4(C), nor his motion for discharge pursuant to Criminal Rule 4(C) filed on February 24, 2011, count as assertions of his right to a speedy trial. Appellee’s Brief p. 11. Rather, as the Attorney General would have it, _____ only first asserted his right to a speedy trial for purposes of the Barker analysis when he first used the magical words “constitutional right to a speedy trial” at a July 14, 2011, pretrial conference, if then. Id. at 12. (Indeed, the Attorney General appears to agree with the trial court’s finding that _____’s first assertion of the right to a speedy trial only arose with his Motion to Dismiss Based on Violation of Constitutional Right to Speedy Trial, filed on September 15, 2011. Id.) But, as the Indiana Supreme Court stated in Austin: “The broad goal of Indiana’s Criminal Rule 4 is to provide functionality to a criminal defendant’s fundamental and constitutionally protected right to a speedy trial.” Austin, slip op. at 11. Therefore, when _____ asserted his rights to a speedy trial under Criminal Rules 4(A) and 4(C), he clearly in doing so also asserted his constitutional right to a speedy trial.

The Attorney General argues that prior to _____’s assertion of his “constitutional right to a speedy trial” he had acted inconsistently with the desire for a speedy trial, including by “agreeing to a trial date that was more than seven months later” after new counsel appeared in March of 2010, “which indicated _____ was not interested in a speedy trial.” Appellee’s Brief p. 12. To the contrary, it would be far more accurate to say that _____ had acted inconsistently with the desire for an early trial, as defined by Criminal Rule 4(B), since he did not file a motion for an early trial. When he agreed in March of 2010 to a trial date that was more than seven months later (a date which the trial court informed him was the earliest date on which he had a reasonable chance of proceeding to trial), the trial date he agreed to was still within the one year period permitted by Criminal Rule 4(C). Once he had retained new counsel, therefore, _____ acted perfectly consistently with the desire for a speedy trial.

            C.        Reasons for Delay

            The Attorney General argues it was proper for the trial court, on July 14, 2011, to set _____’s trial for August 22, 2011, a date on which several other cases had already been set for trial and which was therefore an illusory trial date, rather than on December 5, 2011, a date on which _____’s case would have been a first setting, since _____ “would not agree to the December 5, 2011, setting.” Appellee’s Brief p. 13. The Attorney General thereby subscribes to the exact same Catch 22 the trial court presented to _____. Indeed, the Attorney General a page earlier in its Brief faults _____ for “agreeing to a trial date that was more than seven months later” in March of 2010, just as the trial court had counted this seven months against _____ (erroneously, judging from the Indiana Supreme Court’s Writ of Mandamus ordering his release) in denying _____’s motion for release from jail on his own recognizance on the grounds that he had “agreed” to the seven months delay. In fact, it would be more accurate to say that on July 14, 2011 _____ “agreed” to the December 5, 2011 trial date, and even that he requested it, since according to the court it appeared to be the earliest possible setting on which he could realistically hope to go to trial, but that _____ wanted to make clear for the record that his “agreement” to this date would not count against him for purposes of his constitutional right to a speedy trial, especially since the court had just denied his renewed request to be released from jail on his own recognizance pending trial. Again, it was the State’s, and not _____’s, obligation to bring him to trial within a constitutionally permissible period of time. The court did not need _____’s “agreement” in order to schedule his trial as a first setting for December 5, 2011, and its insistence on such “agreement” appeared designed to undermine _____’s assertion of his right to a speedy trial, particularly in light of the court’s earlier denial of his motion to be released on his own recognizance on the grounds that _____ had “agreed” to the first trial date scheduled in his case.

            D.        Prejudice to the defendant

The Attorney General argues that “_____ fails to identify any specific prejudice to his defense.” Appellee’s Brief p. 14. By this, though, the Attorney General can only mean the third of the three interests which the right to a speedy trial was designed to protect: “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” Barker v. Wingo, 407 U.S. 514, 532-33 (1972).

The Attorney General incorrectly claims, citing the Appellant’s Brief, that “as he [_____] points out, he was released from jail after less than two years.” Appellee’s Brief p. 14. In fact, what _____ pointed out at the page cited is that he “had been held in jail in violation of Criminal Rule 4(A) from July 11, 2010 until his ordered release on May 24, 2012, a period of almost two years.” Appellant’s Brief p. 17 (emphasis added). _____ had been held in jail since his arrest on August 7, 2009. Id. at 1. Therefore, he had been held in jail for almost three years, well over the advisory sentence for the crime with which he was charged, and almost six times the six month period contemplated by Criminal Rule 4(A).

The Attorney General compares to _____’s case the length of delay and of pretrial incarceration in two cases, Barker v. Wingo, 407 U.S. 514 (1972), and Rivers v. State, 777 N.E.2d 51 (Ind.Ct.App. 2002), in support of its argument that _____ has failed to demonstrate prejudice. However, contrasting the actual facts of these two cases with _____’s actually supports _____’s claim of prejudice.

In Barker:

The difficulty of the task of balancing these factors is illustrated by this case, which we consider to be close. It is clear that the length of delay between arrest and trial—well over five years—was extraordinary. Only seven months of that period can be attributed to a strong excuse . . . . Perhaps some delay would have been permissible under ordinary circumstances . . . but more than four years was too long a period . . . .

Two counterbalancing factors, however, outweigh these deficiencies. The first is that prejudice was minimal. Of course, Barker was prejudiced to some extent by living for over four years under a cloud of suspicion and anxiety. Moreover, although he was released on bond for most of the period, he did spend 10 months in jail before trial. But there is no claim that any of Barker’s witnesses died or otherwise became unavailable owing to the delay. The trial transcript indicates only two very minor lapses of memory—one on the part of a prosecution witness—which were in no way significant to the outcome.

More important than the absence of serious prejudice, is the fact that Barker did not want a speedy trial. . . .

Barker, 407 U.S. at 533-34 (emphasis added).

In Rivers:

Here, the length of the delay between accusation and trial was three and one-half years. This delay is sufficiently lengthy to trigger the Barker analysis. However, an examination of the factors demonstrates that Rivers’ speedy trial rights were not violated. The vast majority of the delay was directly attributable to Rivers’ affirmative acts in seeking continuances, requesting a trial after his co-defendant, and pursuing an interlocutory appeal. Moreover, Rivers failed to assert his speedy trial right until nearly three years after the charges were first filed. This course of action demonstrates that Rivers was not dissatisfied with the course of his trial. In that time, he agreed to testify against his co-defendant and engaged in plea negotiations. His delay of nearly three years in asserting his speedy trial right weighs against a speedy trial violation.

Rivers also fails to demonstrate how he was prejudiced by the delay in this case. Although his plea negotiations were ultimately unsuccessful, the delay in Rivers’ trial is in part attributable to his efforts to avoid one. Moreover, Rivers changed counsel numerous times. Several of the continuances he requested were to enable new counsel sufficient time to review the case. Finally, we also note that Rivers had confessed to his participation in the crime. We find that Rivers has failed to demonstrate prejudice. We therefore conclude that Rivers’ constitutional right to a speedy trial was not violated, and the trial court did not err in denying his motion for discharge.

Rivers, 777 N.E.2d at 56-57 (emphasis added).

In both of these cases, the defendant’s failure to assert his speedy trial rights was found to outweigh what would otherwise likely have been found to constitute a prejudicial length of delay. Even so, in the case of Barker, the U.S. Supreme Court considered it to be a close call, even though Barker had spent only 10 months in jail. _____, by contrast, first asserted his speedy trial rights (on December 2, 2010, when he filed his motion for release from jail on his own recognizance) about 18 months before he was finally released from jail, by order of the Indiana Supreme Court on May 24, 2012, and about 26 months before he was finally tried, on February 11, 2013.


            For the reasons set forth above, _____’s conviction should be reversed and the charges against him dismissed.


“I have written all that I want to write and then some.”

January 02, 2014 By: John Kindley Category: Uncategorized

So wrote Nebraska federal district judge Richard Kopf in his farewell blog post yesterday.

I could say the same about this blog. For example, was I really constrained to write a few posts ago: “I’m constrained to say . . . that no one should be a cop, a prosecutor, or a judge in the employ of the State”?

It may not sound like it at all, but my recent flurry of posts here, after a hiatus of several months, has in part been a defensive measure. I have every reason to believe after a recent court appearance that the attorney disciplinary authorities in Indiana have read or will read this blog. It’s arguable whether some of my posts here are protected by the First Amendment. If it comes down to it, I intend to argue that they are. My quotation in my last post of a local judge’s remarks to a local newspaper  in 2006 is part of that argument, as is my quotation in this post of remarks made by then-Indiana Governor Mitch Daniels.

My wife and I spent New Years Eve at a party held at the local FOP Lodge, with a police officer who’s been a good friend since third grade, and another old and good friend whose late father was a police officer, and their significant others, and another couple. A couple years back the friend whose father was a police officer stopped by this blog and commented, and took exception to something or other I wrote relating somehow to cops. I have no idea whether he or the friend who is a police officer follow or still follow this blog, but I suspect not. But I also suspect that, even if they did, and even if they might strongly disagree with my words and attitude, our friendship would survive, because they know me. My readers don’t. It is difficult to say in words everything one would wish to say. At the New Years Eve party the friend who is a police officer reminded me that I beat him twice for the elementary school wrestling championships. I’d thought it was only once. Glory days.

I am not ignorant of and do not depreciate the real difficulty of being a good cop, a good prosecutor, or a good judge. There are people who should be locked up for the safety of other people. One day my friend who is a cop apprehended right in front of my house a young man who’d allegedly been burglarizing our neighborhood. The man resisted, and my friend had to tase him, but did so no more than appeared necessary, and handled himself very professionally in a very difficult situation. The man wound up kicking out the back window of my friend’s squad car.

But here is the other side of the coin.

I said what I said about cops, prosecutors and judges, and whether anyone should be one, because it’s absolute bullshit to ruin someone’s life over marijuana, or LSD, or even cocaine, just to mention only a few of the “evil” “laws” on the books. But in my experience, the good cop, the good prosecutor, and the good judge know it’s bullshit, if only in their hearts, and act accordingly as well as they can. Still, we are all of us individually responsible for what we do in this world.

The job of a good cop / prosecutor / judge is a difficult job, like the job of a criminal defense attorney is difficult, but in very different ways. For the former, it can’t be easy for a good man to hurt another man who must be hurt for the safety of the community, and to decide how badly he should be hurt. Even in my ideal utopia, what cops / prosecutors / judges do now would still need to be done, albeit far less, but the responsibility would be both shared and made transparent. The job of a criminal defense attorney is likewise a godawful job. In fact, it’s so godawful it probably shouldn’t exist, at least in its present form. I don’t mean by this I have any qualms whatsoever over defending the “guilty.” I wholeheartedly believe that it is better for 100 guilty men to go free than for 1 innocent to suffer, and that other people should believe this too. I mean it is an awful thing, and an awful responsibility, to be the only thing standing between the State and a human being’s liberty. Any man should be ready at any time to stand up and defend the defenseless, alone if necessary, and even against the power of the State, but this is no way to go through life. I’m a fan of the Bhagavhad Gita and its recommendation of “desireless action,” but of all things on God’s green earth that lend themselves to acting without attachment to the fruits of action, criminal defense ain’t one. Your client goes to prison, and part of you goes to prison with him. The prosecutor doesn’t have to deal with this. If he loses, he might feel like he’s let down the victim or the victim’s family, but those people are not his clients. The prosecutor’s only client is an abstraction, and is what Nietzsche called the “coldest of all cold monsters.” Furthermore, the escape of a guilty man is not itself a crime, while the conviction of an innocent man is. The responsibility for the latter crime falls on the defense attorney’s shoulders, while the prosecutor who committed it pats himself on the back. Indeed, what could be more fun for a prosecutor than prosecuting a case he should lose? That’s the kind of case that from the prosecutor’s side of the courtroom really does lend itself to “desireless action,” wherein he can strut around with a well justified indifference to whether he wins or loses. If he loses, oh well, probably should have lost anyway. It was a “tough case.” If he wins, what a good lawyer he must be, convincing all those law-abiding citizens on the jury to convict armed only with weak evidence.

Defense, like prosecution, is also a responsibility that should be shared and made transparent. This is the appeal of Lysander Spooner’s Essay on the Trial by Jury, which is all at once judge, prosecutor, defense attorney, and of course jury. While it’s hard to detail how all this might work in the real world (even though Spooner’s work was based not on fantasy but on his research-based understanding of the historical role of the jury), Spooner it seems to me was on the right track.

So, yes, I wish to mitigate any offense I may have given, to the many honorable cops, prosecutors, and judges who conscientiously do their jobs — a necessary and a difficult job — as honorably as they can. Nevertheless, as the reader might have imagined, I not too long ago tried to talk a nephew out of joining the military after high school, it appears successfully. I’ve advised people who’ve asked for my advice and who were thinking about going to law school: “Don’t go.” I can’t imagine anybody who was thinking about being a cop asking for my advice, but if they did I think the reader can guess what I’d tell them.

And I stand by the gist of the remark whose offensiveness I wish to narrow to the truly deserving: that the pedestal on which we put these professions is not only wholly unnecessary and unwarranted but inimical to a free society. Of all the things on God’s green earth that should be presumed innocent, the decision to send a man to prison ain’t one. Vincent Bugliosi wrote:

It’s always a great relief and pleasure to walk into court and find a judge who has had trial experience, knows the law, is completely impartial, and hasn’t let his judgeship swell his head. There are, of course, many such admirable judges in this country, but regrettably they are decidedly in the minority.

Bugliosi, of course, achieved unprecedented success as a trial lawyer, both as a prosecutor and as a defense attorney. His observations and impressions can’t be written off as those of a sore loser. I, on the other hand, am not so sure I would go so far as to say, as he did, that “admirable judges” are “decidedly in the minority.” I might say, erring on the side of fairness, that they constitute a slight majority. But what do I know.

The State’s Star Witness

December 27, 2013 By: John Kindley Category: Uncategorized

A recent criminal case out of the County to our East has attracted national attention:

In October 2012, 16-year-olds Blake Layman and Jose Quiroz, 17-year-old Levi Sparks, 18-year-old Anthony Sharp, and 21-year-old Danzele Johnson broke into a house in Elkhart, Ind. The five were not armed and thought the house was vacant. Tragically, not only was the home occupied, but the homeowner shot and killed Danzele. Though not his killer, the four surviving teens were charged with Danzele’s murder.

Last month, three of the teens were convicted of murder and sentenced to harsh prison terms. Blake Layman, who suffered a gunshot wound himself, was sentenced to 55 years in prison, as was Anthony Sharp. Because Levi Sparks never even entered the house, he received a slightly shorter sentence, but will still be in prison for half a century. The fourth teen, Jose Quiroz, pleaded guilty to the charges in order to receive a “reduced” sentence of 45 years. To many, this result is unthinkable: Unarmed teens decide to break into what they believe to be a vacant house, watch their friend get shot and killed by the homeowner, and now must spend the majority of their adult lives in prison for their friend’s murder.

The sentencing hearing in this case sounds like it went very typically:

Layman was the first teen called for sentencing. His attorney explained what he felt were “mitigating” circumstances: he worked at Wendy’s, went to alternative school after being expelled from Concord schools for fighting, he was quote an “asset” to his family who had a single bread-winner, his mom, and a younger sister battling cancer.

The defense and the judge [Shewmaker] in turn weighed those against the aggravating factors in this case. They cited Layman’s frequent use of marijuana and non-prescribed drugs like Xanex and Vicodin, as well as his suspension from high school in the ninth grade for fighting as evidence of bad behavior.

Chief Deputy Prosecutor, Vicki Becker, said there is a solution, “the solution is appreciating other people’s privacy…property…sanctity.” She acknowledged how the Layman family is suffering, but qualified that by saying it is because their child made “decisions to violate basic fundamental principles of right and wrong.”

“We’re here because Blake Layman made a conscious choice,” said the prosecution, “because he was selfish.”

At that point here was an outburst from the audience in the courtroom. This has been an emotional trial all along with dozens of friends and family sitting in the whole time. The judge issued a stern warning that any type of facial expression or outburst will not be tolerated and said he was quote “embarrassed.”

Blake Layman spoke for the first time. He offered an apology for the two victims of the burglary—not just Danzele Johnson, but the homeowner as well. He asked for forgiveness and said he accepts responsibility for his actions.

Considering all the factors, those presented by both sides, Layman’s statement and letters submitted to the court, Judge Shewmaker recognized the apology and one letter in particular that caught his attention.

“Blake needed us to be there for him,” the judge read from the letter, “however we didn’t see his outcry for help. As a family we should’ve been there for Blake to support and guide him and we have failed at this.” Given the circumstances, the facts of the case and case law the judge handed out a 55 year sentence with a $10,000 suspended fine, 344 days recommended drug treatment and credit for time served.

The testimony of the homeowner at trial was interesting:

Scott decided to fire his gun because he didn’t know whether they were armed or whether they’d attack him. He began firing, hoping to trap them in the bedroom and hold them there until he could call police.

When asked why he didn’t immediately he answered, “that was not my mindset.” . . .

The defense took turns cross-examining Scott. Bringing to the jury’s attention the discrepancy between the number of bullets he remembers loading and firing from his gun and the actually number of clips the 9mm handheld.

But Scott held firm to his testimony, never changing or altering what he said prior. When asked whether any of the intruders had any weapons, he frankly responded “I didn’t see any weapons, no,” yet he fired shots thinking he could trap them in the spare bedroom.

Scott, of course, was not charged with any crime. His testimony reminded me of the facts in the case of Tyrus Coleman, who was prosecuted, convicted and sentenced to 45 years for attempted murder in the very same courtroom a couple years earlier. In Coleman’s case, there was no question that the “serious violent felon” who suddenly appeared on his property and immediately marched up to within “close range” of him was armed. Nevertheless, Coleman was to blame, according to the Indiana Supreme Court, because, “although Coleman had the opportunity to do so, he never used his cell phone to contact the police and inform them that two armed and dangerous men were on his property.”

Comparing these two cases reminds me of something a local judge said to a local newspaper back in 2006:

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 County or does it say that something is out of whack in Elkhart County? If we would be in the bottom half or the bottom third, I would think you could make a statement then that our sentences are lenient in St. Joe County. That’s interesting because I actually thought that we would be ranked lower than that. I am not surprised that Elkhart is high on the list.

I have the sense in Elkhart that quite honestly, historically, the prosecutor runs the county. I think any defense lawyer will tell you that in Elkhart County, the prosecutor gets what the prosecutor wants.

(Marnocha said that might be because every judge in Elkhart was a career deputy prosecutor before taking the bench.)

Q: What do you think about the fact that St. Joseph Superior Judge Jerome Frese’s average sentences for most types of felonies were lower than Elkhart Circuit Judge Terry Shewmaker’s?

A: (Having known Shewmaker since the days when both were chief deputy prosecutors in their respective counties, Marnocha said he was not surprised that Shewmaker is handing out longer sentences.)

. . .

The jury selection in the case of the four teenagers was also significant:

Under Indiana Law if a death happens while a crime is being committed anyone involved can be charged with murder. It’s a law many of the potential jurors struggled with,  causing the selection process to go on well into the evening. . . .

During questioning, many potential jurors confessed to not understanding the law, or not agreeing with it. All things that made them question their ability to judge fairly [sic].

If Indiana honored its own Constitution, those many potential jurors who did not agree with the felony murder law, or who would not commit to blindly following it, could not have been struck for cause, and the travesty of justice ultimately committed in this case would not have been foreordained.



Professional Suicide, Part I

December 26, 2013 By: John Kindley Category: Uncategorized

Via the Legal Profession Blog, this disciplinary case out of Illinois, in which the review board has recommended suspending an attorney for three years and until further order of the court, and found his statements not protected by the First Amendment, caught my attention:

Respondent continues, even with the benefit  of hindsight, to stand by his statements as “100% correct”. He expresses little  comprehension of the harm caused by his conduct. While Respondent was not  previously disciplined, his conduct in the four matters outlined in the  Administrator’s Complaint was not isolated and continued over the course of many  years. He repeated many of the statements at the hearing. The Hearing Board  stated, “An attorney who repeatedly takes adverse rulings in client cases  personally and who is inclined to believe he was racially discriminated against  whenever he feels he was treated unfairly poses a danger to our court system.  This is especially true when the attorney’s response to these feelings is to  make insulting and offensive accusations about the court system and its judges.”  We agree. Respondent’s conduct does not serve the interests of his clients or  the legal system. We are concerned that Respondent, if allowed to practice,  would continue to engage in similar misconduct if faced with an adverse ruling  by a judge.

I recall a conversation in a law school seminar class at the University of Wisconsin back in 1998 or 1999. Another student in the seminar, who like me was also on law review and whose article like mine had recently been selected by the editors for publication, asked me what my article was about, so I told her. I asked her why she asked. She said she’d wondered aloud to one of the editors whether the topic of her article (something having to do with education) was too controversial and might hurt her career, and the editor told her: “You should see what John Kindley wrote.”

A funny thing about that article is I did not set out to argue for mass litigation from coast to coast against the abortion industry for failure to inform women considering abortion about the scientific evidence linking induced abortion with increased breast cancer risk. Rather, when I proposed the topic to the editors at the outset of the process, I proposed only to prove the “duty” to disclose this evidence going forward, figuring that the “breach” and “causation” hurdles of an actual med mal case would be insurmountable. The editors tried to dissuade me from even this narrow topic, suggesting I write on something less controversial, like partial-birth abortion, instead. They also indicated that if I wanted to write on this topic I would need to demonstrate the actual viability of an actual cause of action, since it would not be of interest to the bar if I didn’t. This struck me at the time as a game of hide-the-ball, since I was well aware that usefulness to practitioners was hardly a prerequisite for getting a law review article published.

Props to the editors, all of whom described themselves as “pro-choice,” for keeping their word,  after I’d made my case. Since then, more than one person has told me that the publication of my article is an embarrassment to the Wisconsin Law Review. If so, the embarrassment could have only been heightened when shortly after its publication the article was distributed to every member of the U.S. House of Representatives by then-Congressman Dave Weldon, M.D., along with a “Dear Colleague” letter urging them to read it.

Prior to the article’s publication, I had asked a few practicing attorneys to review a draft, to see whether it “held water,” and whether there was anything I’d missed or was not aware of that would keep it from working in the “real world.” One of these was a high-powered plaintiff’s side med mal attorney in Chicago, whose contribution, gleaned over several visits to his office, is recognized in the first footnote of the article. Another was a partner in a high-powered plaintiff-side toxic tort firm in Chicago. Although the latter lawyer met with me for well over an hour after she’d read the draft, and expressed to me her conviction (based on the dynamics she’d seen in her own practice) that the reason the risk wasn’t being disclosed in 1999 is because, based on the history of the evidence, abortion providers should have been disclosing it years ago, and were surely afraid of lawsuits based on their past negligence, and assured me that she could see no practical holes in the article that would keep the cause of action it outlined from being successfully implemented in the real world, she nevertheless asked me not to thank her for her help in the first footnote of my law review article.

I spoke with a seemingly-sympathetic law prof about the article after class one day. He asked me if I was married, or had any kids. When I said no, he said I might want to grab this thing by the tail and see where it takes me. In retrospect, I can’t help but wonder whether this was a reference to the end of Moby Dick.

After law school I headed for an “internship” at one of the most prestigious plaintiff-side med mal and criminal defense firms in Washington, D.C., at the invitation of a partner who was one of the most well-respected plaintiff-side med mal attorneys in D.C., on the strength of my article, which he’d read. On the way there I swung by New Orleans, and met with a partner in a plaintiff-side med mal firm there, and a partner at a Big Law firm who’d defended the tobacco industry in many cases. Both were interested, and the latter was especially enthusiastic about the cause of action proposed in my article, and told me to call him if things didn’t work out in D.C.

By this time I was convinced I was on the cusp of something far bigger than the tobacco and asbestos litigation. I was obsessed, I think, to this very day, understandably and rightly. The whole purpose of my going to D.C. was to help make something happen. This was not my imagination talking, as it was discussed with the partner before I got there. A few weeks after graduating from law school I taught a CLE in D.C., along with the partner and one of his associates, on the substance of my law review article. I didn’t care about money, and little about fame, but I knew I needed a mentor, whoever it was, and I knew I wanted more than anything to be part of what I thought was the inevitable dismantling of this enormous injustice. What could stop it? There were thousands of potential plaintiffs across the country, if only they knew. If one judge bent the law in order to throw the case out, the law was clear enough that certainly not all judges, everywhere, would. And all that was needed was one case to get the avalanche started. I was not so full of myself as to dream of being lead counsel in the leading cases, and of cross-examining the defendants’ experts and of waxing eloquent to the jury in closing argument. All I wanted to do was to make sure it happened, sooner rather than later, and I wanted to be there and help it happen.

But it soon became apparent that this partner was up to his eyeballs in work that was making him a whole lot of money. I saw little of him, and was basically left to my own devices. At some point, after I’d been there a month or so, he told me he’d talked to the medical expert he normally relies on to review the cases he takes (he hadn’t talked to him before I got there?), and this expert said he thought the evidence linking oral contraception with breast cancer risk was stronger than that linking induced abortion with breast cancer risk. (Maybe, maybe not, but the fact is patients have been informed about the increased breast cancer risk associated with oral contraceptives for years. No cause of action there.) I saw the writing on the wall. He told me, truthfully, that most lawyers would give their left nut for a job at his firm. He knew I didn’t care. I left shortly thereafter. I returned to Wisconsin, and called the Big Tobacco lawyer in New Orleans. He got back to me a little later, after he spoke with the firm’s managing partner. It turned out the firm wasn’t interested in pursuing litigation based on failure to disclose the evidence linking induced abortion with increased breast cancer risk after all, but I could submit a resume if I wanted a job. I talked with a medium-sized firm in Chicago, where a lawyer I knew well was a partner. During the interview, the managing partner told me  they didn’t pay as well as the big firms. I couldn’t have cared less. But he also told me the firm couldn’t take on any cases based on the abortion-breast cancer link. I politely thanked him for his time. Then there was the high-powered plaintiff-side firm in Philadelphia. I was invited to an interview with all the partners in the firm by the older lawyer who’d started the firm, and who was very enthusiastic about what I was looking to do. I felt like I made a good impression, except for one young buck who seemed to look at me like I had an eye in the middle of my forehead. A few weeks later I called the lawyer who’d started the firm. He said he thought I’d told him I had some experience practicing law. This conversation was just two or three months after I’d graduated from law school. I’d never told him any such thing.

My turning down all these good jobs might sound arrogant as hell, and is if I wound up getting exactly what I deserved, but the fact is I never wanted to go to law school in the first place. My going to law school was largely a traffic accident. (It was not my idea, but that of a then-significant other, after it had dawned on me that the life of a philosophy professor toward which I’d been heading was largely one of dependence and pedantry.) Nevertheless, I distinctly remember praying, during the time that the law review editors were deliberating on whether my article would be one of the approximately one out of ten student articles selected for publication, “God, if I never accomplish anything else, let me accomplish this.” God, apparently, answered my prayer, but took me at my word.

It’s not that I think my article was itself particularly brilliant or original. It’s that I proved in it beyond any shadow of a doubt what I set out to prove: that abortion providers have a legal duty to disclose to women considering abortion the evidence linking induced abortion with increased breast cancer risk; and that I did so in the Wisconsin Law Review, which no one could accuse of a “pro-life” bias, and where it would be permanently available to lawyers and judges and law students and law professors, and turn up in Westlaw searches relating to informed consent and toxic torts. While I’m sure the law review editors, like me, did not anticipate that the article would be distributed to every member of congress by a congressman, I think they, like me, expected a bigger impact than it has proven to have in subsequent years. One of them volunteered that if they decided to publish the article he didn’t know what would happen, implying he thought anything could happen. Another suggested I shepardize the article a couple years after it had been published, implying he thought it would be widely cited. I did so, but it had only been cited by a handful of articles with a pro-life bent.

It boggled and continues to boggle my mind — and I mean that almost literally — how the biggest and most awful of lies can be successfully hidden in plain sight. The evidence linking induced abortion with increased breast cancer risk has only grown stronger in the years since I proved beyond the shadow of a doubt that women considering abortion had a legal right to know about this evidence. Recently the publication of a meta-analysis of 36 studies from China provides very strong additional evidence confirming the link, and expressly suggests that the steep rise in breast cancer incidence observed in China since the implementation of its “one-child policy” is attributable to induced abortion. And yet the only media coverage of this very important “study of studies” in the U.S. has been in “pro-life” venues. After more than ten years, I have to wonder whether I will live to see the day when this lie will be exposed in all its godawful hypocrisy. From time to time I’ve written about the abortion-breast cancer link here on this blog. While a few denizens of the so-called “practical blawgosphere” have seen fit in the past to take me to task for my thoughts on “Justice,” I’ve never heard a peep of reaction to this enormous injustice out of any of them. The law professor I referred to above, in the same conversation I referred to above, told me that I’d really found my way right into the “the heart of darkness.” I naively imagined I was shining a light on a truth that both sincere “pro-lifers” and “pro-choicers” would come together on. It turns out that almost the opposite is true. It turns out that sincerity is even rarer in this world than we’d feared. It turns out that this is a truth hardly anyone wants to hear let alone repeat.

Let me make a long story short with an image of its finale: Me sitting in an office in Lakeville, Indiana a few years later, participating by telephone in the deposition of my client in the North Dakota false advertising case, listening while an attorney from the Center for Reproductive Law and Policy (the attorney participated by phone from New York and my client participated by phone from North Dakota) tried (unsuccessfully) to turn my client against me in the course of questioning her about what assets she had in order to satisfy the $30,000 judgment against her, to pay for the false testimony of the defendant abortion clinic’s experts at trial.

The North Dakota Supreme Court had unanimously gone out of its way to distinguish its own precedent and to hold that the North Dakota statute under which we’d brought suit was unconstitutional as applied to the plaintiff, contrary to the California Supreme Court’s interpretation of an identical statute. And yet it would be “unfair” of me to adopt the very procedure we instruct juries to follow in criminal cases, and to infer from this conduct and its context a “political” intent? My judgments cost no one their lives or liberty.

I started drinking a lot after that. The alcohol abuse led to drug abuse. It’s no exaggeration to say I’m fortunate to be alive. I’m also, like the President, fortunate not to be a felon. Fortunately, those days are long behind me, and past the statute of limitations. (The nicotine addiction I also picked up during those years, however, remains.)

Where do you go after something like that. I was not always an “anarchist.” Humbled, and aware now that, despite the movies, the law is not meant to undo enormities, I was now willing to start at the bottom, and work my way up like anybody else, doing whatever it is lawyers do. I interviewed for a job with the local prosecutor’s office after the current prosecutor had newly taken office and was hiring deputies. At that point in time the North Dakota false advertising case was on appeal. The panel of several local attorneys, none of whom I knew, who were interviewing applicants for the job, looked at me like I had an eye in the middle of my forehead as I tried to explain what I’d been up to for the last couple years. I didn’t get a call back.

My first experiences of poverty ensued. The experience of paying income taxes while poor led me to Henry George, who led me to Albert Jay Nock.

Years later, still unmentored, I took on a criminal case I wasn’t ready for, and now have on my hands the lost liberty of an innocent man. Yet I’d found a legal key that should have freed him, confirming once again my rueful belief that I could have been a good lawyer, had the stars been aligned differently. But if I’d thought the unanimous supreme court decision in the North Dakota false advertising case was a fluke, because it had largely to do with the politically super-charged nature of that particular case, I was in for a second rude awakening. Or rather, I was in for a recurrence of a nightmare through which I’d passed once before, devoid of sense and light.

Damn right I take these cases “personally.” They have affected me, and my livelihood, personally, and tangibly. And this does not even take into account the persons affected who I referenced in the conclusion of the Appellant’s Brief in the North Dakota case:

Requiring the Clinic to disclose those facts it is now denying in its commercial brochures will alert women considering abortion that there is a relationship between abortion and breast cancer risk, enable them to investigate the evidence further for themselves if they so choose, and allow them to make their own judgments as to whether it should influence their decision. On the other hand, not requiring disclosure of these facts would guarantee that women in North Dakota will continue to be misled as to the relative safety of abortion and childbirth, and that they will unknowingly incur a risk that could cost them their lives. Only they, ­ not the Clinic, not the Clinic’s experts or lawyers, not even this Court ­ should decide for these women whether that is a risk worth taking, but without this Court’s help that decision will continue to be made for them.




This is Honor . . .

December 17, 2013 By: John Kindley Category: Uncategorized

. . . and Redemption:

Not long ago, Mr. Barbaro, 85, decided to contact the lawyer for the man, Donald Kagan. He got a transcript of the trial, during which Mr. Kagan had waived his right to a jury and put his fate in Judge Barbaro’s hands.

“As I read it, I couldn’t believe my eyes,” the former judge said in an interview. “It was so obvious I had made a mistake. I got sick. Physically sick.”

Mr. Barbaro’s change of heart led to a highly unusual spectacle this week in a Brooklyn courtroom: He took the witness stand in State Supreme Court to testify at a hearing that his own verdict should be set aside. His reason was even more unusual: As a die-hard liberal who had fought as a politician against racism in Brooklyn and weathered the race conflicts in Bensonhurst, he said he had been biased against Mr. Kagan because he was white and the shooting victim, Wavell Wint, was black.

. . .

Mr. Kagan was found guilty in October 1999 of murder and criminal possession of a weapon.

A few years later, after his retirement, Mr. Barbaro found he could not let go of the case. “I began to have doubts,” he said, “and the doubts grew.” In 2011, he contacted Mr. Kagan’s lawyer, Jeff Adler.

Mr. Barbaro said that as he read the trial transcript, he came to believe Mr. Kagan’s self-defense claims were valid. “With these undisputed facts, I should have acquitted him,” he said in the interview. “There was no way I could have found him guilty.”

In Defense of Tyranny

December 12, 2013 By: John Kindley Category: Uncategorized

It seems to me that probably my favorite novel of all time, Eumeswil, by Ernst Juenger, is half Utopia and half The Prince. The narrator, who calls himself an anarch rather than an anarchist, tends the night bar in the castle of Eumeswil’s ruler, the Condor. During his interview for this job, under the influence of a truth drug administered by the interviewers, he had identified the Condor as a “tyrant.” This apparently raised no alarms, as he was hired nonetheless.

An Amazon reviewer of Eumeswil calls the novel “a glimpse as to how intellect can convince itself to serve power.” (Many apparently cannot forgive Juenger for serving in the German Army during WWII in occupied Paris instead of martyring himself.) But the Condor is no Hitler. Indeed, he comes across in the novel as quite honorable and just. What then made him, correctly speaking, a “tyrant”? Only this: He came to power by overthrowing the previously reigning “tribunes,” and therefore his rule lacked so-called “legitimacy.” That is, he had no Authority, no Divine Right, to rule.

But is this in itself so bad? To the contrary, the Condor’s admission of the narrator into his inner circle, despite (or perhaps even because of) the latter’s honesty, is an indication that the Condor’s rule is free of the pretense that defines the State.

As I indicated in a recent post, I’ve revised my previous opinion that “ruling” defines the State. Frankly, this definition of the State was largely a product of my attachment to a standard definition of Anarchy as “rulerlessness” and my corresponding attraction to the basic idea in John Hasnas’ article The Depoliticization of Lawthat law can be the product of human action without being the product of human design. While this idea might be optimal, it’s not essential. Justice is what is essential, and the sole determinant of legitimacy. (What is Justice? In my humble opinion, nothing more and nothing less than the Presumption of Innocence, but that’s the subject of another post.) A code apparatus, or even the decree of a “tyrant,” can be just, and can certainly be more just than the decrees of a so-called “democracy.”

As Lysander Spooner wrote:

Men honestly engaged in attempting to establish justice in the world, have no occasion thus to act in secret; or to appoint agents to do acts for which they (the principals) are not willing to be responsible.

The secret ballot makes a secret government; and a secret government is a secret band of robbers and murderers. Open despotism is better than this. The single despot stands out in the face of all men, and says: I am the State: My will is law: I am your master: I take the responsibility of my acts: The only arbiter I acknowledge is the sword: If anyone denies my right, let him try conclusions with me.

. . .

If any number of men, many or few, claim the right to govern the people of this country, let them make and sign an open compact with each other to do so. Let them thus make themselves individually known to those whom they propose to govern. And let them thus openly take the legitimate responsibility of their acts. How many of those who now support the Constitution, will ever do this? How many will ever dare openly proclaim their right to govern? or take the legitimate responsibility of their acts? Not one!

J.R.R. Tolkien wrote something similar in a letter to his son, then serving in WWII:

My political opinions lean more and more to Anarchy (philosophically understood, meaning abolition of control not whiskered men with bombs) – or to ‘unconstitutional’ Monarchy. I would arrest anybody who uses the word State (in any sense other than the inanimate realm of England and its inhabitants, a thing that has neither power, rights nor mind); and after a chance of recantation, execute them if they remained obstinate! If we could get back to personal names, it would do a lot of good. Government is an abstract noun meaning the [act] and process of governing and it should be an offence to write it with a capital G or so as to refer to people. If people were in the habit of referring to ‘King George’s council, Winston and his gang’, it would go a long way to clearing thought, and reducing the frightful landslide into Theyocracy. Anyway the proper study of Man is anything but Man; and the most improper job of any man, even saints (who at any rate were at least unwilling to take it on), is bossing other men. Not one in a million is fit for it, and least of all those who seek the opportunity. . . .

While the anarch might tend bar for the tyrant, and might even fight for him, he always remains conscious that he is as sovereign as the tyrant. Tyrannicide is never out of the question. But the anarch is distinguished from the anarchist in that the latter aims to bring about what the former knows already is. Hence, the anarch, according to Juenger, “doesn’t interfere,” until it’s necessary. It’s worth noting in this connection that the Tao Te Ching, an ancient book whose purpose was like that of The Prince, advised the ruler to do the same.

policing v. The Police

December 09, 2013 By: John Kindley Category: Uncategorized

Albert Jay Nock wrote in the third paragraph of Our Enemy, the State (1935):

[W]ith any exercise of State power, not only the exercise of social power in the same direction, but the disposition to exercise it in that direction, tends to dwindle. Mayor Gaynor astonished the whole of New York when he pointed out to a correspondent who had been complaining about the inefficiency of the police, that any citizen has the right to arrest a malefactor and bring him before a magistrate. “The law of England and of this country,” he wrote, “has been very careful to confer no more right in that respect upon policemen and constables than it confers on every citizen.” State exercise of that right through a police force had gone on so steadily that not only were citizens indisposed to exercise it, but probably not one in ten thousand knew he had it.

Ernst Juenger wrote in The Forest Passage (1951):

Socrates called the sphere where he was counseled by a voice not to be expressed in words, his daimonion. It might also be called the forest. But what does it mean to the contemporary if we advise him to follow the example of the man who conquered death, the models of gods, heroes, and sages? It means that he participates in the resistance against the age, and, indeed, not against this age only, but against every age whose basic motivation is fear. It is in the nature of things that education today aims at the very opposite. Never before have such strange notions concerning the teaching of history existed. All these systems are designed to cut off the influx of metaphysics, to domesticate and to drill the spirits for the benefit of the collective. Even when the Leviathan is obliged to rely upon courage, as on the battlefield, it will attempt to keep the fighting man in place with a second and stronger menace. In such states one depends on the police.

See also Jeremy Weiland, Against the Police:

Because they are so frequently decent, I’m sometimes tempted to reconcile the profession of policing with the kind of free society I dream about. After all, I have several friends and family who are police officers, and I’m loathe to let ideology darken my opinions of them as individuals. I want to believe policing is possible outside the hegemony of a state, and that these people can be meaningful participants in a stateless community.

But I never persist in that belief very long. . . .

Professional police create the illusion that we can be passive consumers of government. Law enforcement is the indispensible institution of the modern state, the fulcrum of authoritarianism in our society. The honest anarchist intuitively recognizes this, but may not realize that any future stateless society with a professional police class will inevitably end up as bad or worse. When it comes to anarchism, you cannot alienate your agency to personally produce the society you wish to participate in.

State v. Me

December 03, 2013 By: John Kindley Category: Uncategorized

For some months now this blog has been “resting.” During this time I’ve instead probably spent as much time and energy tweeting as I ever did blogging, though in the last couple weeks I’ve been resting from Twitter too.

Last week I had the unusual experience of being cross-examined at length by the State on the content of many of my blog posts here, in the course of a post-conviction proceeding. Although this line of questioning was objected to on grounds of relevance, it was not unexpected, and the State justified its inquisition on the grounds that my “credibility” was at issue. It was gratifying to know that at least one person was still reading this blog. And it would not surprise me if in the near future other authorities take an interest as well, as a result of this prosecutor’s interest. I think I explained myself, for the record, as well as could be expected in that format and environment, and as well as Heresy is ever able to justify itself to Orthodoxy. Nevertheless, this is as good a time and opportunity as any to summarize the views I’ve expressed here over the last few years, which have evolved some but not much since the last time I posted.

I was questioned about the former tag-line of this blog: “fairly undermining public confidence in the administration of justice.” A number of months ago I replaced that with “[There is just nothing wrong with telling the American people the truth,” which is a quote from Allen v. United States. I did so for no particular reason other than that the latter quote was also the tag-line for my 1999 student article in the Wisconsin Law Review, and I view my writing here as of one piece with my writing there. I was asked if I have “public confidence in the administration of justice.” I answered “No.” Here are a few pertinent quotes:

Thomas Jefferson: “Free government is founded in jealousy, not confidence. It is jealousy and not confidence which prescribes limited constitutions, to bind those we are obliged to trust with power. . . . In questions of power, then, let no more be heard of confidence in men, but bind him down from mischief by the chains of the Constitutions.”

James Madison: “The nation which reposes on the pillow of political confidence will sooner or later end its political existence in a deadly lethargy.”

John Adams: “There is danger from all men. The only maxim of a free government ought to be to trust no man living with power to endanger the public liberty.”

I was asked by the State about my view that judges should be defrocked of their black robes. I couldn’t have put it better than the poster boy for the State himself, Vincent Bugliosi:

The American people have an understandably negative view of politicians, public opinion polls show, and an equally negative view of lawyers. Conventional logic would seem to dictate that since a judge is normally both a politician and a lawyer, judges would be perceived by the public as being lower than whale waste. But on the contrary, the mere investiture of a twenty-five-dollar black cotton robe elevates the denigrated lawyer-politician to a position of considerable honor and respect in our society, as if the garment itself miraculously imbues the person with qualities not previously possessed. . . .

I was asked about my attitude toward cops, specifically with reference to these lines in my About page: “I believe there is such a thing as a good judge and a good cop, because I’ve met a few of them. The problem is that even the good judge and the good cop are constrained to apply and enforce evil laws to the detriment of their fellow human beings.” The State in its questioning laid particular stress on my use of the word “evil” in the phrase “evil laws.” But of course, as I acknowledge also in my About page, not all laws are evil. Rather, “A law is only as legitimate as it is just.”

I pointed out in my response to the State’s question that one of my oldest and best friends is a cop. I’m reminded of a saying from my days in the military: “You don’t have to respect the man, but you do have to respect the uniform.” These days I invert that saying: I may not respect the job, but I respect some of the people who do that job. No one should join the military, because a person who does so is signing on to do whatever goddamned thing the State tells him to. I’m constrained to say, for a very similar reason, that no one should be a cop, a prosecutor, or a judge in the employ of the State. Therefore, I’m also constrained to say that these professions are not in themselves honorable. Certainly no one deserves honor just because they do these jobs. Certainly being a waitress is in itself more honorable than being the President of the United States or a Justice on the United States Supreme Court. Nevertheless, I’d of course prefer that those jobs be done by relatively honorable people. Furthermore, as someone who in the past “served his country,” I refrain from judging personally people who do these jobs as honorably as they can, lest I be judged.  And I do not pretend even now to live a pure life untouched by any complicity with the State. But this man will spend the rest of his life in prison for doing good. No one who helped put him there or helps keep him there has any excuse, just as I am responsible for whatever good or evil I’ve done or am doing in the world.

I was asked if I think there should be firemen. I do in fact have ideas about how society should be organized. Specifically, I’m partial to Thomas Jefferson’s Ward System, Henry George’s Single Tax, and Lysander Spooner’s Trial by Jury. Incidentally, all three of these notions have deep roots in American culture and history. There’d be room for firemen, and maybe even for cops, in such a scheme. Following Albert Jay Nock and J.R.R. Tolkien, I distinguish between government and the State. I’d say with Isabel Paterson:

The essence of self-government consists in keeping promises . . . .

Government by force is a contradiction in terms and an impossibility in physics. Force is what is governed. Government originates in the moral faculty. . . .

Government is a marginal requirement, necessary only in so far as the individual inhibitory faculty is not exercised according to agreement and natural right (equal liberty). Beyond that differential, government is an enthronement of paralysis and death. . . .

Yet it must be borne in mind that the constituent element of government is not force; it is the moral faculty which decides and devises the check by which force must recoil on itself. And the moral faculty is in the individual.

But this “three-point program” is really secondary for me, and I have no hope whatsoever of seeing it even begin to be put into practice during my lifetime. I do not waste my breath “advocating” this program. It’s more of a framework for understanding by comparison the criminal nature of the State. Primary, rather, are the three interrelated moral and political principles on which this utopian program is based: No Authority, Presumption of Innocence, and Distribution of Power. The first two are especially primary, because they originate and reside in the individual, and, in contrast to the “three-point program,” can be lived right here and now, for their own sake.

Tony Serra’s thoughts on the deep moral and political dimensions of the Presumption of Innocence is described here.

The State palpably felt as if it just got me to admit the earth was flat when it got me to admit that I agree with Lysander Spooner that the Constitution is of “No Authority.” It could read all about it on this site dedicated to Spooner maintained by a Georgetown law prof and Volokh Conspiracy blogger. I pointed out to the State that Spooner in recent years had been cited by Scalia, Thomas and Alito. I could have also pointed out that less than a year ago another Georgetown law prof wrote an op-ed in the NYT titled “Let’s Give Up on the Constitution.”

At some point during the inquisition I referred to Nock’s Our Enemy, the State as my political or philosophical bible. But this was more in the way of citing my source for my understanding of the origin and nature of the State, my distinction between government and the State, and my Jeffersonian Georgism. If I had to pick one single work that summed up what I regard as the summit of the personal, the political, and the religious, it would be Ernst Juenger’s The Forest Passage. A substantial excerpt is here. The first complete English translation just became available from Telos Press yesterday.

Along with Spooner, Nock, and Juenger, I also singled out Thoreau as an inspiration under cross-examination, noting that the latter last I heard is still taught to public school kids.  A couple days after the inquisition I noted somebody stopped by an old post here which consisted entirely of an excerpt from Thoreau’s Slavery in Massachusetts (1854). In getting at what I mean by No Authority and in concluding this summary, it might be worthwhile to quote again the first couple paragraphs of that excerpt:

The law will never make men free; it is men who have got to make the law free. They are the lov­ers of law and order who ob­serve the law when the gov­ern­ment breaks it.

Among human be­ings, the judge whose words seal the fate of a man fur­thest into eter­nity is not he who merely pro­nounces the ver­dict of the law, but he, who­ever he may be, who, from a love of truth, and un­prej­u­diced by any cus­tom or en­act­ment of men, ut­ters a true opin­ion or sen­tence con­cern­ing him. He it is that sen­tences him. Who­ever can dis­cern truth has re­ceived his com­mis­sion from a higher source than the chief­est jus­tice in the world who can dis­cern only law. He finds him­self con­sti­tuted judge of the judge. Strange that it should be nec­es­sary to state such sim­ple truths!

Smoking & Guns

May 31, 2013 By: @SingleTaxAnarch Category: Uncategorized

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May 31, 2013 By: @SingleTaxAnarch Category: Uncategorized

The Forest Flight

May 31, 2013 By: John Kindley Category: Uncategorized

I’ve now read virtually everything by Ernst Juenger that’s been translated into English, except for the last half of The Adventurous Heart (1938), which I’m still reading, and Copse 125: A Chronicle from the Trench Warfare of 1918 (1925), which arrived in the mail today. Albert Hofmann, the inventor of LSD, had this to say about The Adventurous Heart at the beginning of a chapter in his 1980 book LSD – My Problem Child describing acid trips he took with Juenger in 1951 and 1970:

Radiance is the perfect term to express the influence that Ernst Jünger’s literary work and personality have had on me. In the light of his perspective, which stereoscopically comprises the surfaces and depths of things, the world I knew took on a new, translucent splendor. That happened a long time before the discovery of LSD and before I came into personal contact with this author in connection with hallucinogenic drugs.

My enchantment with Ernst Jünger began with his book Das Abenteuerliche Herz [The adventurous heart]. Again and again in the last forty years I have taken up this book. Here more than ever, in themes that weigh more lightly and lie closer to me than war and a new type of human being (subjects of Jünger’s earlier books), the beauty and magic of Jünger’s prose was opened to me — descriptions of flowers, of dreams, of solitary walks; thoughts about chance, the future, colors, and about other themes that have direct relation to our personal lives. Everywhere in his prose the miracle of creation became evident, in the precise description of the surfaces and, in translucence, of the depths; and the uniqueness and the imperishable in every human being was touched upon. No other writer has thus opened my eyes.

On the other hand, after reading Juenger’s Preface to Copse 125 this morning, only now do I finally understand why Juenger’s reputation remained so controversial throughout his long lifetime, and why in certain circles he was vilified as the godfather of German fascism. My reading of Storm of Steel (1920) did not explain this judgment, nor did my reading of Total Mobilization (1930), and I had begun to suspect that Juenger had simply been misrepresented and slandered. Here, for example, is a representative passage from the latter work:

The Kremlin’s old chimes now play the Internationale. In Constantinople, schoolchildren use the Latin script instead of the Koran’s old arabesques. In Naples and Palermo, Fascist police regulate the pace of southern life as if directing modern traffic. In the world’s remotest, even legendary lands, houses of parliament are being ceremoniously dedicated. The abstractness, hence the horror, of all human circumstances is increasing inexorably. Patriotism is being diluted through a new nationalism, strongly fused with elements of conscious awareness. In Fascism, Bolshevism, Americanism, Zionism, in the movements of colored peoples, progress has made advances that until recently would have seemed unthinkable; it proceeds, as it were, head over heels, following the circular course of an artificial dialectic in order to continue its movement on a very simple plane. Disregarding its much diminished allowances for freedom and sociability, it is starting to rule nations in ways not very different from those of an absolute regime. In many cases the humanitarian mask has almost been stripped away, replaced by a half-grotesque, half-barbaric fetishism of the machine, a naive cult of technique; this occurs particularly where there is no direct, productive relation to those [pg 138] dynamic energies for whose destructive, triumphal course long-range artillery and bomb-loaded fighter squadrons represent only the martial expression. Simultaneously, esteem for quantity [Massen] is increasing: quantity of assent, quantity of public opinion has become the decisive factor in politics. Socialism and nationalism in particular are the two great millstones between which progress pulverizes what is left of the old world, and eventually itself. For a period of more than a hundred years, the masses, blinded by the optical illusion of the franchise, were tossed around like a ball by the “right” and “left.” It always seemed that one side offered refuge from the other’s claims. Today everywhere the reality of each side’s identity is becoming more and more apparent; even the dream of freedom is disappearing as if under a pincers’ iron grasp. The movements of the uniformly molded masses, trapped in the snare set by the world-spirit, comprise a great and fearful spectacle. Each of these movements leads to a sharper, more merciless grasp: forms of compulsion stronger than torture are at work here; they are so strong, that human beings welcome them joyfully. Behind every exit, marked with the symbols of happiness, lurk pain and death. Happy is he alone who steps armed into these spaces.

That does not sound fascistic to me. But in Juenger’s Preface to Copse 125, published five years earlier, we find reflections on WWI such as these:

Those frightful landscapes were our daily surroundings where destruction ruled over all and nothing stood except the might of the soul that no force can subdue. In one thing alone we were great — in our aims that dwarfed the individual and made his life and fortunes of no account. Thousands died for an acre of ground, for a bit of trench, for a copse or a village — and rightly; for the shaping of a world still hidden in the future was bound up with the gain or loss of scraps of ground like these. And the length of the war only heightened its intensity.

To stand thus, night and day without a breathing space, always on the alert; to answer the great and utmost question of fate by the offer of one’s own life — must not that be an education that goes deeper and lasts longer than any other? And over and above it all to see the tangible success, the hoped-for and well-earned reward sunk in shipwreck utterly unforeseen — this is the severest trial that can be laid on a people, as on any single person who feels himself in heart and soul bound up with it. He who can pass a test like this shows that he is born for command and is fit for the exercise of power.

Certainly no one who is not carved out of the hardest wood goes on unshattered from such a schooling, and it is only in the day of distress that a nation can tell whether it has men at its disposal. We, too, have no lack of those who, like the Frenchman, Barbusse, regard war as a material affair and, turning its negative side outwards, endeavour to run up on the other a temple of peace and happiness. They give as their reasons devastated towns and frightful sufferings — as though our highest duty was the avoidance of pain. They have no mind to accept the responsibilities that demand sacrifice of such corruptible treasures as life and property when a nation’s greatness and its ideas are at stake. It is here, though, that the greater moral strength lies, and there is no doubt on which side the materialists are to be found.

An Amazon customer review of Copse 125 I found helpful remarked:

If you simply follow Junger, you’ll also be interested in this, because it’s exactly the sort of thing he was trying to disavow in his later years.

. . .

While I’m a fan of the man and everything he accomplished in a long and storied life, he was a pretty slippery character. That was true before the concept of the ‘anarch’ had been fully developed, and it’s definitely on display here.

. . .

This is Junger before he got burned by the ascent of the Nazis. This book amply documents why he was able to do what he wanted in occupied Paris, and why On the Marble Cliffs wasn’t banned by the Nazis. I don’t mean to smear him as a true-believer, but he did sow the seeds for the ascent of the NSDAP through his contributions to the post-war marketplace of ideas. He was definitely pro-Germany, pro-military, and anti-democratic. He wasn’t a loyal Nazi, but he was definitely a Right Wing intellectual who was proud to wear these attitudes on his sleeve when it mattered.

In Juenger’s partial defense may be offered Albert Jay Nock’s book about the causes of WWI and the Treaty of Versailles, The Myth of a Guilty Nation (1922).

Incidentally, Storm of Steel, while brutally honest, is not quite the cold and pitiless chronicle of war it’s sometimes made out to be. In includes, for example, this passage:

It was a relief to me, finally, to have the foe in front of me and within reach. I set the mouth of the pistol at the man’s temple — he was too frightened to move — while my other fist grabbed hold of his tunic, feeling medals and badges of rank. An officer; he must have held some command post in these trenches. With a plaintive sound, he reached into his pocket, not to pull out a weapon, but a photograph which he held up to me. I saw him on it, surrounded by numerous family, all standing on a terrace.

It was a plea from another world. Later, I thought it was blind chance that I let him go and plunged onward. That one man of all often appeared in my dreams. I hope that meant he got to see his homeland again.

And this:

The occupants of a row of dugouts along the side of the path also ran away. I encountered one such as he was just about to leave the last one. . . . Outside it lay my British soldier, little more than a boy, who had been hit in the temple. He lay there, looking quite relaxed. I forced myself to look closely at him. It wasn’t a case of ‘you or me’ any more. I often thought back on him; and more with the passing of years. The state, which relieves us of our responsibility, cannot take away our remorse; and we must exercise it. Sorrow, regret, pursued me deep into my dreams.

Furthermore, although Juenger’s ideas and those of the National Socialists in the years between the wars coincided in some points, Juenger was never guilty of their anti-Semitism. He wrote in his journal on June 7, 1942, after seeing during a stroll on a Paris street for the first time the newly imposed yellow star worn by Jews: “I consider such events, even within one’s own personal history, as marking a date that cuts deeply into the record. Such a spectacle does not pass without leaving a reaction in its wake — and immediately I felt embarrassed to be in uniform.”

I was pleasantly surprised to stumble upon the complete text of Total Mobilization online a couple weeks ago, and even more pleased a few days ago to stumble on a substantial online excerpt from Juenger’s The Forest Flight (1951). Juenger’s figure of the Anarch evolved from his earlier figure of the Forest Fleer, described in this essay. Not only the stark contrasts but also the continuities in this essay with Juenger’s thought in Copse 125 are revealing:

New conceptions of authority and great concentrations of power have arisen. In order to resist them, we require a new conception of freedom transcending the anemic abstractions we have come to associate with this term. The first prerequisite for this new awareness is that man must not content himself with being left in peace; that he must be ready to risk his life. In that case, we shall soon learn that even in the states in which the power of the police has become overwhelming, independence is by no means extinct. The armor of the new Leviathan has its chinks which must be constantly sought out, an activity requiring both caution and audacity of a kind hitherto unknown. This suggests that elites are about to begin the struggle for a new freedom which will require great sacrifice and which must not be interpreted in a manner unworthy of it. In order to find analogies we must go back to ages of strength, say, to the period of the Huguenots or of the guerillas as Goya saw them in his Desastros. Compared to these, the storming of the Bastille – an event which still provides nourishment for the current notion of freedom – appears like a Sunday stroll into the suburbs.

. . .

The arguments change, but stupidity sits forever in judgment.

Men were brought before its tribunal first, because they despised the gods; then because they did not recognize a dogma; or again, because they offended against a theory. There exists no great word or noble thought in the name of which blood has not been spilled. The message of Socrates resides in the conviction of the invalidity of the verdict which testifies to a standard transcending the human scale. The true verdict was spoken long before the trial began and took expression in the exaltation of the victim. The trial is perennial, and the philistines who sat in judgment then may be met today on every street corner and in every parliament. The idea that this might end has always distinguished the shallow thinkers. But human greatness must be reconquered again and again. It triumphs whenever man masters the onslaught of vulgarity in his own heart. Therein resides the real substance of history; in the encounter of man with himself, that is to say, with his own divine power. That must be understood if one wishes to teach history.

. . .

In Germany, resistance against authority is, or was, especially difficult because, from the days of legitimate monarchy, the population preserved a modicum of respect for the state. Hence the individual found it difficult to understand why the victorious powers prosecuted him, not merely by means of a blanket accusation of collective guilt, but also as an individual for having, for example, continued in his profession as a conductor of an orchestra or as a public official. Although this state of mind produced some grotesque results, we must not treat it as a mere curiosity. It is indicative of a new feature in our world, in which foreigners may accuse the individual as a collaborator with popular movements, while political parties try him as a sympathizer of unpopular causes. The individual is thus placed between Scylla and Charybdis; he is threatened with liquidation either because he participated or because he failed to participate.

Hence, a high degree of courage is required which will enable him to defend the cause of justice all alone, and even against the power of the state. It will be doubted whether such men can be found. Some will appear, however, and they will be wanderers in the forest (Waldgänger). Even against his will, this type of man will enter the historical scene, for there are forms of coercion that leave no choice.

. . .

Let us assume that a small number of truly free men are left in a city or state. In that case the breach of the constitution would carry a heavy risk. In this sense, the theory of collective guilt is justified, for the possibility of violating a law is directly proportional to the degree of resistance it encounters at the hands of freedom. An attack on the invulnerability and, indeed, on the sanctity of the home would not have been possible in old Iceland, in the form in which it was possible as a purely administrative measure in Berlin in 1933, in the midst of a population of several millions. As an honorable exception we should mention a young Social Democrat who killed half a dozen of the so-called auxiliary police at the entrance of his apartment. He still partook of the substantial Old-Germanic sense of freedom which his opponents celebrated in their theories. Naturally, he had not learned this from the program of his party.

Let us suppose, furthermore, that the authorities would have had to expect an incident of this sort in every street of Berlin. In that case, things would have been different. Long periods of peace and quiet favor certain optical illusions. Among them is the assumption that the invulnerability of the home is founded upon the constitution and safeguarded by it. In reality, it rests upon the father of the family who, accompanied by his sons, appears with the ax on the threshold of his dwelling. This truth is not always apparent, however. Nor is it to be construed as an objection to the constitution. It is simply that the old saying still holds: the man must vouch for his oath; the oath cannot vouch for the man. The German has been reproached for his lack of resistance to official acts of violence and perhaps justifiably. He did not yet know the rules of the game, and he felt threatened from other directions where there has never been any question of basic human rights. Those who died in a hopeless struggle, unarmed, and in defense of their wives and children, are, as yet, hardly noticed. But their lonely destruction will become known. For it counts as a weight in the scale of history. We, who survived, must see to it, however, that the spectacle of coercion which met no resistance shall never be repeated.

. . .

The great experience of the forest consists of the encounter with the Ego, with the self, with the inviolate core and essence that sustains the temporal and individual appearance. This encounter, so decisive for the conquest of health and for the victory over fear, is also supreme in its moral value. It leads to the primal basis of all social intercourse, to the man whose example defines individuality. In this sphere we will encounter not only community but also identity. This is the symbolic meaning of the embrace: the Ego recognizes itself in the other human being in the saying, ”This is you.” The other can be the beloved, the sufferer, or the helpless victim. In giving help, the Ego helps its own immortal essence and confirms the basic ethical order of the universe.

Countless men are alive today who have traversed the nadirs of the nihilistic process. They know that the mechanism reveals itself as an ever-greater menace, that man has entered into the interior of a huge machine which has been designed for his annihilation. They have learned that every form of rationalism leads to machine-like mechanism, and every mechanism to torture as its logical consequence, a fact which the nineteenth century failed to grasp. A miracle must take place if a man is to escape from such whirlpools. And this miracle has taken place times without number when among the faceless numbers there appeared an individual and gave succor. This was the case even in the prisons and, indeed, especially there. In every situation and in his relation to every man, the individual can become the brother – this is his genuine, his sovereign, trait. The origin of nobility was the task of protection – protection against the threats of beasts and monsters. This is the token of the aristocratic being, and it shines forth in the guard who secretly gives a piece of bread to a prisoner. Such actions can never cease, for the world subsists on them. They are the sacrifices upon which it rests.

. . .

Even if one is prepared to accept the worst case of breakdown, there remains a distinction between light and darkness. Here the way rises into high realms, towards a sacrificial death or to the fate of one who falls fighting; there it sinks into the lowly spheres of slave-camps and slaughter houses where primitives murderously unite with technology. There destiny is absent, and only numbers exist. Having a destiny or being regarded as a statistic: this is a decision that is forced on everyone today, but which has to be taken individually. The individual is just as sovereign today as in any other period of history, perhaps even more so? As collective powers gain ground, the individual becomes separated from the old, established associations and stands alone. He now becomes the opponent of Leviathan, even its conqueror, its master.

. . .

Mention here of individuals refers to true human beings, without the overtones the idea has attracted over the past two centuries. The reference is to the free human being as God created him. This human being is not an exception, does not embody an elite. He is in fact concealed within everyone, and differences only arise out of the degree to which the individual manages to implement the freedom granted to him. As a thinker, a friend, as one who knows and loves, one has to help him achieve that.

It can also be said that man is sleeping in the forest. In the moment when he awakens and recognises his power, order is restored. The higher rhythm of history can generally be interpreted in terms of the human being periodically rediscovering himself. The powers that want to mask this are sometimes totemic, sometimes magical, and sometimes technological. Then rigidity increases, accompanied by fear. The arts petrify and dogma becomes absolute. But the spectacle of man removing his mask has repeated itself since earliest times, to be followed by joy, the reflection of freedom.


March 08, 2013 By: John Kindley Category: Uncategorized

I was formerly perplexed by these passages in Ernst Juenger’s Eumeswil (1977), as translated by Joachjm Neugroschel:

The positive counterpart of the anarchist is the anarch. The latter is not the adversary of the monarch but his antipode, untouched by him, though also dangerous. He is not the opponent of the monarch, but his pendant.

. . .

The anarch, as I have expounded elsewhere, is the pendant to the monarch; he is as sovereign as the monarch, and also freer since he does not have to rule.

The dictionary was no help, and I concluded that my perplexity was due to an error in translation. But upon reading this passage in Juenger’s first and still most famous work, Storm of Steel (1920), as translated by Michael Hofmann, my perplexity was alleviated:

I also brought back my holed helmet, and keep it as a pendant to the other one that the lieutenant-colonel of the Indian Lancers had worn when leading his men against us.

The Price of Honesty

March 01, 2013 By: John Kindley Category: Uncategorized

From my post yesterday quoting Ernst Jünger’s Eumeswil (1977):

It is not only the fit who survive, but also the honest. The fact that these two survivals do not coincide in time goes back once more to Genesis, to the separation of the Tree of Life from the Tree of Knowledge.

Needless to say, when praying, the anarch neither requests nor thanks. Nor does he seek a magical force in prayer. How many ardent prayers have not been heard? As a historian, I linger in the cells of the condemned; as an anarch, I would like to offer them posthumous solace; and I know that the guilty need this even more than the innocent.

I was in the dungeon with Boethius and in the temple with Marie
Antoinette when her hair turned white. I was there when the mob was howling outside and the father put on his prayer thongs. The child groped for his hand. But neither the father nor the child was heard.

From an account by Stuart Hood, the first English translator of Jünger’s Auf den Marmorklippen (On the Marble Cliffs) (1939), of his conversation as a British officer in Germany with Jünger following the collapse of the Third Reich in 1945:

Of Jünger I knew that he had been much wounded, much decorated, as a very young officer in the 1914-18 war and had written of his experiences in a book published in English as Storm of Steel. It was, I seemed to remember, a description of war as the ultimate experience, an example of the military mysticism on which Fascism had drawn. Knew too that he had written a work called Der Arbeiter (The Worker), which I believed to be an approving account of the totalitarian society and of the concept of ‘total mobilization.’ . . .

One of the expectations many people had had was that when the Nazi regime collapsed literary works would emerge which had been hidden away under the dictatorship – the results of the ‘inner emigration.’ It was an expectation that was not fulfilled. It was all the more surprising to find in [Marmorklippen] what was clearly a coded but easily decipherable picture of a tyranny that had marked resemblances to the Nazi state. It had, I noticed, been published in 1939. This seemed to me to be a literary act of considerable courage. . . .

We spoke about his political past. He had, he said, at one time – long ago in the Twenties – thought that the National Socialists had something to offer Germany but he had been mistaken. He had therefore distanced himself from them. Such political honesty was rare at this time; the usual assertion was ‘Ich bin nie PG gewesen’ (I was never a Party member). Was Marmorklippen, I asked, to be thought of as an attack on Hitler and his dictatorship? No, he said, it was aimed at tyrants in general. But it had had a certain importance – thus when his son was in trouble with the authorities he had gone to see a high official to try to help the boy. During the interview a copy of the book lay on the desk between them. It was never referred to.

According to Wikipedia, Ernst Jr. was imprisoned in 1944

for engaging in “subversive discussions” in his Wilhelmshaven Naval Academy. Transferred to Penal Unit 999, he was killed near Carrara in occupied Italy on 29 November.

After the war, Jünger was initially under some suspicion for his nationalist past, and he was banned from publishing in Germany for four years by the British occupying forces because he refused to submit to the denazification procedures.

Jünger died in 1998 at the age of 102, but to this day his reputation has not outlived accusations of fascism. Compare this review today of a new book by Yvonne Sherratt titled Hitler’s Philosophers:

Dr Sherratt provides compelling studies of the philosophers who fled or died rather than play along with Hitler. . . . There was also Hannah Arendt, brilliant student and sometime mistress of Martin Heidegger, who managed to escape round-ups in an almost miraculous fashion. And it is Arendt who brings us back to the most puzzling and disturbing feature of this story.

Heidegger embraced Nazism with apparently complete enthusiasm. He was a genius: Dr Sherratt calls him “Hitler’s Superman” but asks the question whether Hitler could possibly, with his “pernicious” and ignorant views attract to his cause someone so gifted. The answer was yes, and it was Heidegger. She recounts how in 1929 Heidegger had complained about the “Jewification” of his university — the word he uses is Verjudung, one that peppers the pages of Mein Kampf.

On May 1, 1933, three months after Hitler came to power, Heidegger had joined the Nazi party in a blaze of publicity at the University of Freiburg, where he was professor and celebrated for his work in metaphysics. He had taken the precaution beforehand of disembarrassing himself of Arendt who, being Jewish, was not an ideal bedfellow. Heidegger made a speech protesting his devotion to National Socialism, and described the urgency of the need to Nazify Germany’s universities. His reward was to be made rector of Freiburg, with an inauguration ceremony that he underwent in Nazi uniform and whose programme had the words of the Horst Wessel Lied printed on its back page. He then proceeded to remove all non-Aryans from the university. With the philosopher’s approval, Brownshirts toured the campus and conducted military exercises there. Heidegger was such a disaster in his new post that even his loyalty to the party and the Führer could not preserve him in it for more than a year.

Heidegger endorsed the corruption of the German legal system under the Nazis. He also supported censorship. He maintained his devotion to Hitler until 1945, which ensured he would retain his chair and continue to have his books published.

With the fall of the Third Reich, so began Heidegger’s attempts to exculpate himself. He was outraged that there was a suggestion that he should be subject to denazification hearings, “singled out for punishment and defamation before the eyes of the whole city — indeed the whole world”. Despite the zeal with which he had supported the Nazi party and its doctrines, Heidegger was classed merely as a fellow traveller, given emeritus status, and allowed to continue to teach.

That, though, was only the beginning of his good luck. His rehabilitation continued, and was managed not least by his former lover, Hannah Arendt. She argued the case for Heidegger around the world. She celebrated and promoted his genius. Heidegger had fallen in 1934 from the rectorship at Freiburg not least because his nationalism was considered to be too “romantic”, and not of the Darwinian/Nietzschean variety favoured by the Nazis. He claimed to have found Mein Kampf, in parts, repugnant. What seems to have motivated Arendt in taking up the cudgels in favour of her former lover and teacher was not so much that she believed any of his excuses, but that the flame of their former relationship was rekindled when she met him again after her exile.

Whatever her motivation, the results were sobering. Heidegger died in 1976 with his reputation as intact as it could possibly be. Dr Sherratt describes him as being now the “star” of continental philosophy. The Jewish thinkers such as Arendt, Benjamin and Adorno, whom Nazis like Heidegger drove out of the country, are more peripheral. We like to pride ourselves on having finally disgraced and marginalised Nazism. Perhaps we should not be so sure.

See also, because this blog used to at least sometimes be about the practice of law, this post by Scott Greenfield:

The players in our system all have the potential to cause criminal defendants much grief. From the cops, who can lie and manufacture evidence, to the prosecutors whose discretion can be colored by how much they hate us or want to make us look like chumps, to the judges who decide critical motions or, if it comes to it, the length of time our clients are guests of the government, we have far more people, and far more powerful people, to deal with than any civil lawyer can imagine. And they’re all easily angered. And they tend to get miffed pretty easily. And they tend to take it out on us in ways we can never prove.

. . .

Here’s the 411: Blawgers who take a stand on anything real open themselves up to retaliation. We make ourselves targets. We take risks. Huge risks. And sometimes, we get spanked hard for what we do.

More than once, while I’m sitting on a hard bench waiting for my case to be called, will a clerk come from behind and whisper in my ear that the judge didn’t appreciate what I wrote last week.  More than once has a prosecutor greeted me with a sly smile and “I saw your blog the other day,” just to let me know that he can’t wait to take me down a few pegs.

Readers have no clue the risk blawgers take with every post.

Not all “blawgers,” mind you. I see the criminal defense lawyers on twitter whose bio says they’re blawgers, though I’ve never read them. I sometimes stop by to see what they write, and cringe at the insipid blurb from the paper with nothing remotely approaching thought or insight. Just words murdered without purpose, exactly as their marketer told them to do. They take no risk. They take no stand. They serve no purpose.

But those of us who try to write something that provokes thought and challenges the powerful take risks every day. Sometimes I think I’m nuts, putting things online that will almost certainly anger someone who I will someday have to stand before. I ask myself, “what am I thinking, taking the risk of stating an opinion publicly that will come back to bite me in the ass?”

. . .

Criminal defense blawgers make choices too, and the ones who stand for something have made the decision to do what they can to make our system better for everyone, even if we face personal consequences for what we write. Kris Kristofferson wrote “freedom is just another word for nothing left to lose.” We’ve got everything to lose, yet we stand up anyway. And we do it for freedom.



The Prayer of the Anarch

February 28, 2013 By: John Kindley Category: Uncategorized

From Eumeswil:

After I have stood behind the bar all night, it may already be light out,
often close to noon, by the time I awaken – but I am still lying in the dark,
for I sleep behind a thick curtain in the alcove. I then spend another quarter
hour in bed before getting up.

If I say, “in order to pray” it may sound strange. Of course, this word is
quite worn, and it has been corrupted by the padres. Religio, as we know,
harks back to a word (re-ligo) meaning “bond”; and that is precisely what
the anarch rejects. He does not go in for Moses with the Ten Commandments
or, indeed, for any prophets. Nor does he wish to hear anything concerning
gods or rumors about them, except as a historian – or unless they appear to
him. That is when the conflicts begin.

So if I state, “in order to pray,” I am following an innate instinct that is
no weaker than the sexual drive – in fact, even stronger. The two are alike
insofar as foul things can happen when they are suppressed.

Regarding this need, the anarch is again no different from anyone else.
But he does not like to attach himself. He does not squander his best
energies. He accepts no substitute for his gold. He knows his freedom, and
also what it is worth its weight in. The equation balances when he is offered
something credible. The result is ONE.

There can be no doubt that gods have appeared, not only in ancient times
but even late in history; they feasted with us and fought at our sides. But
what good is the splendor of bygone banquets to a starving man? What good
is the clinking of gold that a poor man hears through the wall of time? The
gods must be called.

The anarch lets all this be; he can bide his time. He has his ethos, but not
morals. He recognizes lawfulness, but not law; he despises rules. Whenever
ethos goes into shalts and shalt-nots, it is already corrupted. Still, it can
harmonize with them, depending on location and circumstances, briefly or at
length, just as I harmonize here with the tyrant for as long as I like.

One error of the anarchists is their belief that human nature is
intrinsically good. They thereby castrate society, just as the theologians
(”God is goodness”) castrate the Good Lord. This is a Saturnian trait.

Natural law has been twisted every which way – from legitimation to
brutal violence to a paradisal idyll. This is grounded in the possibility of
reading anything at all into nature. “It is everything at once.” Well, fine;
then let every human being get his own bit from Being.

The random and the arbitrary begin in the realm of molecules. There must
be a crack in the universe from the very start. The very word “nature”
contains a “nay.” Genesis offers marvelous hints, but only rumors, as if a
shepherd had been listening at an unclosed door.

Lawfulness must be sought in the atoms and even deeper, including our
own atoms. From these depths, the ethical and aesthetic judgment reacts to
the finest variations. That is why injustice usually appears as ugly. The
dangers increase in the ascent, as on a tightrope without a safety net, or as on
the Sirat, that sliver of a bridge across the chasm of hell. Never is the
temptation to summon the gods more powerful and never is there greater
merit in resisting it.

As a historian, and only as such, I am a positivist. Lawfulness is valid so
long as it is observed and can be observed. A good conscience – though not,
of course, in the form of moral arrogance – is one of the prerequisites. It is
not only the fit who survive, but also the honest. The fact that these two
survivals do not coincide in time goes back once more to Genesis, to the
separation of the Tree of Life from the Tree of Knowledge.

Needless to say, when praying, the anarch neither requests nor thanks.
Nor does he seek a magical force in prayer. How many ardent prayers have
not been heard? As a historian, I linger in the cells of the condemned; as an
anarch, I would like to offer them posthumous solace; and I know that the
guilty need this even more than the innocent.

I was in the dungeon with Boethius and in the temple with Marie
Antoinette when her hair turned white. I was there when the mob was
howling outside and the father put on his prayer thongs. The child groped for
his hand. But neither the father nor the child was heard.

Nevertheless, prayer comes from an innate drive. It is more important
than food and drink, since it testifies to more than transient life. It takes us
behind the bleak stage set with which knowledge disguises the universe.
Water is seen differently in retorts than in the aqueducts leading to big
cities, and differently again in the ocean – and as the water of life in prayer.

The padres set great store by addressing prayers to personal gods:
“Genuine prayer exists only in religions in which there is a God as a person
and a shape and endowed with a will.”

That was stated by a famous Protestant. The anarch does not want to have
anything to do with that conception. As for the One God: while he may be
able to shape persons, he is not a person himself, and that he is already a
patriarchal prejudice.

A neuter One is beyond our grasp, while man converses with the Many
Gods on equal terms, whether as their inventor or as their discoverer. In any
case, it is man who named the gods. This is not to be confused with a high-level
soliloquy. Divinity must, without a doubt, be inside us and be
recognized as being inside us; otherwise we would have no concept of gods.

“For a God reigns within us” (Hölderlin). “ONE is the start of everything”
(Philolaus). “A God is the greatest among gods and among men, not
comparable to mortals in shape or thought” (Xenophanes). “A whirlwind of
multiple shapes detaches itself from the Totality” (Democritus).

And, over and over again, Heraclitus. We should not make a fuss about
the numinous; it lights on everyone – every man has his Sinai and also his

Child Abuse

January 23, 2013 By: John Kindley Category: Uncategorized

Since my last post over a month ago, I have spent the time I could have been blogging reading or rereading The Only One and His Own, Angelus Silesius, Storm of Steel, The Glass Bees, and Characters and Characteristics of William Law: Nonjuror and Mystic. I would have liked to disparage Orin Kerr’s second of two posts on the prosecution of Aaron Swartz, and to draw different implications than those drawn by the Georgetown law prof who stated in the New York Times the self-evident truth that the Constitution is of No Authority, but time got away from me.

I am prompted now to write (albeit briefly) by Eugene Volokh’s post yesterday, aptly titled Harshly Criticizing Judges (or Others) for Their Past Conduct = Crime?, about a unanimous Indiana Court of Appeals decision published last week. Incidentally, I’m again impressed by Volokh’s uncanny ability to confront the outrageous in the law without outrage.

It occurs to me that by the logic of this decision this very blog, People v. State, the very theme of which is to point out the criminal nature of most of what is done in the name of the spook whose name is the State, could get me not only kicked out of the law business, a possibility I don’t fear, but also convicted of a felony. It further occurs to me that I myself could name off the top of my head three judges whom I consider (based on well considered and readily articulable facts) “child abusers” in the sense clearly meant by the defendant whose conviction was upheld by this decision. Incidentally, the author of this decision dissented from an Indiana Court of Appeals decision which would have overturned the conviction and 45 year sentence of an innocent man but which was itself gratuitously overturned by the Indiana Supreme Court.

To conclude this otherwise brief post, let me quote Stirner in The Only One and His Own on liberty of the press:

Do I perhaps hereby show myself an opponent of the liberty of the press? On the contrary, I only assert that one will never get it if one wants only it, the liberty of the press, i.e. if one sets out only for an unrestricted permission. Only beg right along for this permission: you may wait forever for it, for there is no one in the world who could give it to you. As long as you want to have yourselves “entitled” to the use of the press by a permission, i.e. liberty of the press, you live in vain hope and complaint.

“Nonsense! Why, you yourself, who harbor such thoughts as stand in your book, can unfortunately bring them to publicity only through a lucky chance or by stealth; nevertheless you will inveigh against one’s pressing and importuning his own State till it gives the refused permission to print?” But an author thus addressed would perhaps — for the impudence of such people goes far — give the following reply: “Consider well what you say! What then do I do to procure myself liberty of the press for my book? Do I ask for permission, or do I not rather, without any question of legality, seek a favorable occasion and grasp it in complete recklessness of the State and its wishes? I — the terrifying word must be uttered — I cheat the State. You unconsciously do the same. From your tribunes you talk it into the idea that it must give up its sanctity and inviolability, it must lay itself bare to the attacks of writers, without needing on that account to fear danger. But you are imposing on it; for its existence is done for as soon as it loses its unapproachableness. To you indeed it might well accord liberty of writing, as England has done; you are believers in the State and incapable of writing against the State, however much you would like to reform it and ‘remedy its defects.’ But what if opponents of the State availed themselves of free utterance, and stormed out against Church, State, morals, and everything ‘sacred’ with inexorable reasons? You would then be the first, in terrible agonies, to call into life the September laws. Too late would you then rue the stupidity that earlier made you so ready to fool and palaver into compliance the State, or the government of the State. — But, I prove by my act only two things. This for one, that the liberty of the press is always bound to ‘favorable opportunities,’ and accordingly will never be an absolute liberty; but secondly this, that he who would enjoy it must seek out and, if possible, create the favorable opportunity, availing himself of his own advantage against the State; and counting himself and his will more than the State and every ‘superior’ power. Not in the State, but only against it, can the liberty of the press be carried through; if it is to be established, it is to be obtained not as the consequence of a petition but as the work of an insurrection. Every petition and every motion for liberty of the press is already an insurrection, be it conscious or unconscious: a thing which Philistine halfness alone will not and cannot confess to itself until, with a shrinking shudder, it shall see it clearly and irrefutably by the outcome. For the requested liberty of the press has indeed a friendly and well-meaning face at the beginning, as it is not in the least minded ever to let the ‘insolence of the press’ come into vogue; but little by little its heart grows more hardened, and the inference flatters its way in that really a liberty is not a liberty if it stands in the service of the State, of morals, or of the law. A liberty indeed from the coercion of censorship, it is yet not a liberty from the coercion of law. The press, once seized by the lust for liberty, always wants to grow freer, till at last the writer says to himself, really I am not wholly free till I ask about nothing; and writing is free only when it is my own, dictated to me by no power or authority, by no faith, no dread; the press must not be free — that is too little — it must be mine: — ownness of the press or property in the press, that is what I will take.

“Why, liberty of the press is only permission of the press, and the State never will or can voluntarily permit me to grind it to nothingness by the press.”

Let us now, in conclusion, bettering the above language, which is still vague, owing to the phrase ‘liberty of the press,’ rather put it thus: “liberty of the press, the liberals’ loud demand, is assuredly possible in the State; yes, it is possible only in the State, because it is a permission, and consequently the permitter (the State) must not be lacking. But as permission it has its limit in this very State, which surely should not in reason permit more than is compatible with itself and its welfare: the State fixes for it this limit as the law of its existence and of its extension. That one State brooks more than another is only a quantitative distinction, which alone, nevertheless, lies at the heart of the political liberals: they want in Germany, i. e., only a ’more extended, broader accordance of free utterance.’ The liberty of the press which is sought for is an affair of the people’s, and before the people (the State) possesses it I may make no use of it. From the standpoint of property in the press, the situation is different. Let my people, if they will, go without liberty of free press, I will manage to print by force or ruse; I get my permission to print only from — myself and my strength.

If the press is my own, I as little need a permission of the State for employing it as I seek that permission in order to blow my nose. The press is my property from the moment when nothing is more to me than myself; for from this moment State, Church, people, society, etc., cease, because they have to thank for their existence only the disrespect that I have for myself, and with the vanishing of this undervaluation they themselves are extinguished: they exist only when they exist above me, exist only as powers and power-holders. Or can you imagine a State whose citizens one and all think nothing of it? It would be as certainly a dream, an existence in seeming, as ‘united Germany.’

The press is my own as soon as I myself am my own, a self- owned man: to the egoist belongs the world, because he belongs to no power of the world.

With this my press might still be very unfree, as e.g. at this moment. But the world is large, and one helps himself as well as he can. If I were willing to abate from the property of my press, I could easily attain the point where I might everywhere have as much printed as my fingers produced. But, as I want to assert my property, I must necessarily swindle my enemies. ‘Would you not accept their permission if it were given you?’ Certainly, with joy; for their permission would be to me a proof that I had fooled them and started them on the road to ruin. I am not concerned for their permission, but so much the more for their folly and their overthrow. I do not sue for their permission as if I flattered myself (like the political liberals) that we both, they and I, could make out peaceably alongside and with each other, yes, probably raise and prop each other; but I sue for it in order to make them bleed to death by it, that the permitters themselves may cease at last. I act as a conscious enemy, overreaching them and utilizing their heedlessness.

The press is mine when I recognize outside myself no judge whatever over its utilization, i.e. when my writing is no longer determined by morality or religion or respect for the State laws or the like, but by me and my egoism!”



A Jury of My Peers

December 08, 2012 By: John Kindley Category: Uncategorized

Norm Pattis asks you to “imagine how you’d react if you walked into a courtroom to face a jury of 12 souls with skins as dark as my client’s. Some part of you would feel betrayed, I am sure of it.” (You are presumably white.)

I’m white. Back in law school at the University of Wisconsin I participated in a moot court competition. The topic was the constitutionality of affirmative action in law school admissions. We had to argue both the “pro” side in front of one panel of three of our fellow law students and the “con” side in front of another panel of three of our fellow law students. Personally, after examining both sides, I had arrived at the opinion that if state-funded law school had a legitimate purpose it was not primarily to provide an education for people who wanted to be lawyers but to provide lawyers for the people, and that therefore affirmative action in law school admissions was constitutional, for the same reason that affirmative action in hiring correctional officers, to better reflect the racial diversity of the people being “corrected,” made all kinds of sense and was constitutional.

But imagine my surprise when I walked into the appointed classroom to argue the “con” side and was confronted by an all-black panel of my law school peers. (The law school had affirmative action but few black students.) Part of “my” argument (it didn’t originate with me) was that affirmative action “stigmatized” minorities who are accepted to law school, tarring all of them with the suspicion that they are not really qualified and were only admitted because of their race.

Maybe it was just me, but this argument didn’t seem to go over well with the panel.

Some part of me did feel betrayed.

But hats off to the martyrs: Ernst Juenger’s On the Marble Cliffs

November 12, 2012 By: John Kindley Category: Uncategorized

I just finished reading Juenger’s novella On the Marble Cliffs (1939) yesterday. Published when he was 44 or so, it’s a great book, although unsurprisingly not as great as Eumeswil (1977), which was published when he was about 82. (He died more than 20 years later, in 1998, at the age of 102.) Next I plan to read the work for which he is still most famous, Storm of Steel (1920), published when he was about 25.

The copy of On the Marble Cliffs I read (which I bought from the seller in “fair condition,” for a more-than-fair price, compared to the alternatives) was published by Penguin Modern Classics in 1970, with an Introduction written by a George Steiner in 1969, the year of my birth. Assuming this Wikipedia article is about the same George Steiner, Steiner wrote the Introduction when he was about 40, and is 83 today. He would have been about 10 when On the Marble Cliffs was first published in Nazi Germany in 1939. According to Wikipedia:

Steiner’s first formal education took place at the Lycée Janson-de-Sailly in Paris. In 1940, during World War II, Steiner’s father once again relocated his family, this time to New York City. Within a month of their move, the Nazis occupied Paris, and of the many Jewish children in Steiner’s class at school, he was one of only two who survived the war.

According to another article in Wikipedia:

[Jünger] served in World War II as an army captain. Assigned to an administrative position in Paris, he socialized with prominent artists of the day such as Picasso and Jean Cocteau. His early time in France is described in his diary Gärten und Straßen (1942, Gardens and Streets).

Jünger appears on the fringes of the Stauffenberg bomb plot. He was clearly an inspiration to anti-Nazi conservatives in the German Army, and while in Paris he was close to the old, mostly Prussian officers who carried out the assassination attempt against Hitler. He was only peripherally involved in the events however, and in the aftermath suffered only dismissal from the army in the summer of 1944, rather than execution.

His elder son Ernst Jr., then a Kriegsmarinecadet, was imprisoned that year for engaging in “subversive discussions” in his Wilhelmshaven Naval Academy. Transferred to Penal Unit999, he was killed near Carrara in occupied Italy on 29 November.

Steiner’s Introduction, borrowing from Jünger’s journals, is not flattering. He writes:

Admirers of Ernst Jünger, apologists for the right-wing elitism and nationalist mystique he advocated in the 1920s and 30s, have hailed [On the Marble Cliffs] as anti-Nazi. It has been widely asserted that this arcane fable is the only major act of resistance, of inner sabotage, carried out by German literature under Hitler. Jünger himself has been more circumspect, and rightly so. . . . Even the bestial image of the Flayer’s Copse is less trenchant or unambiguous than might appear. The analogy with the concentration camps about which Jünger had heard and intimated a good deal as early as 1939, but against which he never raised a public cry, is evident and graphic. . . .

. . . At the nadir of the Reich, Jünger still joined other Knights of the Order of Pour le merite in commemorative ceremonies in Berlin. . . .

. . . Watching a raid on the Renault works in March 1942, the chevalier of the marble cliffs comments that several hundred are reported slain and over a thousand gravely hurt: ‘but seen from my quarter, the affair looked rather like stage-lighting in a shadow-theatre.’ This is the focus of the dandy. I mean the word in its strong, condottiere sense, as comprehending asceticism and cool courage. The dandy confronts the sum of life but keeps it at gauntlet’s length. Like his counterparts in the dramas of Montherlant, there is one temptation only which Jünger finds it really difficult to resist: . . . the temptation to despise human beings. . . .

A ‘twentieth-century classic’? Perhaps so. And in an almost mathematical sense. On the Marble Cliffs is a theorem of limitation. It enacts the precise incommensurability between a certain cast of abstract humanism or high civilization and the realities of modern terror. In its ritual tranquillity, in its candid suggestion that flight into archaic utopia (the domain of privacy, of aesthetic and antiquarian cultivation) is the only way out, Jünger’s legend embodies a tragic failure of nerve. . . .

Steiner concludes:

The incapacity to feel lest feeling grow corrupt and banal is perhaps the paralyzing dilemma of a classic, necessarily elitist culture. [On the Marble Cliffs] has importance as a statement of this dilemma. The nocturnal word which Jünger himself applies to this condition is tristia. Through it blow the coldest winds from Limbo. Robbed of his only child, seeing Germany collapse into hideous abjection, Ernst Jünger attends a final, absurd meeting of local Nazi officials. He watches Hitler’s thugs scheming their last act of murder or getting ready to scurry for cover. Yet no cry, no leap of rage escapes him. He notes in his diary: ‘I lack the capacity for hatred’. There have been too many moments in our savage time when the absence of hatred is the same as the absence of love.

Thus Steiner’s Introduction is an indictment of both the book and the man. I know not how one can judge the man. The following excerpt will suffice to defend the book:

At the sight I felt tears start to my eyes, but they were such tears as fill us with wonderful exultation together with their sorrow. On this pale mask from which the scalped flesh hung in ribbons and which looked on the fires from the elevation of the torturer’s pike there played the shadow of a smile intensely sweet and joyful, and I knew that on this day the weaknesses had fallen from this noble man with each step of his martyrdom, like the rags of a king disguised in beggar’s weeds. Then a shudder ran through my inmost heart, for I realized that he had been worthy of his forefathers, the tamers of monsters; he had slain the dragon fear in his own breast. Then I was certain of something which I had often doubted — there were still noble beings amongst us in whose hearts lived unshakeable knowledge of a lofty ordered life. And since a high example leads us in its train, I took an oath before this head that from that day forth I would rather fall with the free men than go in triumph among the slaves.

Final Thoughts on “Eumeswil” by Ernst Juenger

November 07, 2012 By: John Kindley Category: Uncategorized

The following thoughts are “final” not in the sense that I’m promising not to write anything else about this great novel by an extraordinary man, but in the sense that they relate to a couple interesting things Juenger did in its closing pages. So, ​Spoiler Alert!, although this is the kind of novel that I don’t think is spoiled by knowing in advance how it turns out.

First, the “tyrant” who rules Eumeswil, the Condor, is revealed in the final pages to be himself a “forest fleer,” deciding to go on a Great Hunt “beyond the desert and into the woods,” along with his right-hand man (the Domo, who feels uneasy about the whole thing) and a retinue including the narrator. As the narrator had explained earlier in the novel, the anarch lurks in everyone, including the monarch, and power is burdensome for the anarch. “[E]veryone is anarchic; this is precisely what is normal about us.”

Second, we learn from an epilogue to the narrator’s “notebooks” written by his brother years later that no one who went on the Great Hunt was ever heard from again. We know from these notebooks that this brother is a “typical liberal,” and that the narrator when he was alive gave the phrase “capital punishment,” as well as “freedom of the press,” a wide berth at the family table, for if he had voiced even the slightest criticism he would have laid hands on his brother’s “most hallowed treasure.” But the brother in his epilogue writes:

Reading these pages has thrown me into an inner conflict — between the private man and the historian. My brother did not love his family. Such was his peculiar character. But we loved him. His presentation is larded with judgments and, in my opinion, misjudgments that would justify my burning it as a private person; I have thought about it. Burnings take place with every legacy, perhaps to purge the deceased’s image in our memories, perhaps for the sake of his family.

I, however, am a historian and come from a family of historians. My dear brother — one of the titles he loved was “historian by blood.”

Eumeswil is widely and justifiably regarded as spiritual autobiography, but with this epilogue, written in a different voice than the one we have heard throughout, Juenger reminds us again that what we have read is a novel, and that its fictional narrator should not necessarily be identified with Juenger himself. Thus, it was misleading of me to title some of my recent posts which quoted from Eumeswil “Ernst Juenger on Capital Punishment,” or “Ernst Juenger on Benjamin Tucker.” Thus, it would also be a mistake to regard the narrator of Eumeswil as intended by Juenger as a model for how a person should live his life.

The literary figure of the “anarch” as expounded by the fictional narrator of Eumeswil is striking, but is put in perspective and in its place, as a figure among other figures, by the epilogue. It can be cut down to definitional size as follows: Anarchy is rulerlessness. Rulers are human beings who have the right to make laws for others. The anarch understands that there are no rulers, and sees that society is rulerless.

The anarchist, by contrast, according to the narrator of Eumeswil, emphasizes the will at the expense of the substance. (What exactly then the anarchist wills can be guessed at and stated by individual self-described anarchists, but does not appear to lend itself to precise definition, since the anarchist’s presumed goal — Anarchy — is the presently existing reality.)

The narrator arguably makes too much of this distinction between the anarch and the anarchist, or makes it too dogmatically. Would the pure anarch lift a finger to help or make others see what he sees, as Juenger himself did with Eumeswil and other novels? Would he say aloud, at the family table or elsewhere, that unnecessary killing is morally murder?

The reader of Eumeswil will have to judge for himself, and I think this is precisely what Juenger intended.

Ernst Juenger on Capital Punishment

October 30, 2012 By: John Kindley Category: Uncategorized

From Eumeswil:

There are jurists and even theologians who advocate capital punishment as the last resort of justice. Others reject it as immoral. Both sides have good reasons. Both call upon statistics, which, as usual, can be exploited every which way. Numbers should be kept aloof.

This controversy passes the anarch by. For him, the linking of death and punishment is absurd. In this respect, he is closer to the wrongdoer than to the judge, for the high-ranking culprit who is condemned to death is not prepared to acknowledge his sentence as atonement; rather, he sees his guilt in his own inadequacy. Thus, he recognizes himself not as a moral but as a tragic person.

. . .

With the spread of atheism, death grows more horrible, since annihilation is total and irrevocable. Death is overrated, both by the person suffering it and by the person inflicting it. Repentance, too, is secularized. It no longer relates to the evildoer’s salvation before he passes away into the cosmic order; now it signifies his obeisance to society and its legislation.

. . .

The anarch knows the fundamental law. He also knows its falsifications. He realizes that atonement is his due for misdeeds against it. The state has tricked him out of the right to pass this judgment; it is obligated to carry it out on his behalf.

Instead, one sees eunuchs convening in order to disempower the populace in whose name they presume to speak. This is logical, since the eunuch’s most heartfelt goal is to castrate the free man. The results are laws demanding that “you should run to the district attorney while your mother is being raped.”

They cheat a man out of the blood that expiates murder, just as they rob him of the gold attesting to his share of the sun, and spoil the salt that, as the spirit of the earth, unites all free men.