People v. State

For possession of marijuana. The criminalization of which is itself criminal.

The Indiana Supreme Court seems to be reinstating convictions a hell of a lot lately.

In a just criminal justice system, a system which required of judges the same consensus we require of jurors, an “acquittal” at any step of the appellate process would end the defendant’s Jeopardy.

It’s only natural for judges employed by the State to believe in the State and its works more than your average bear. I wonder whether, by the same psychological logic, judges invested with more power by the State are even bigger believers than judges invested with less.

I’ve edited out the needlessly profane words I used in a recent post to describe the most hated judge in America. Other judges have done even worse things in their published opinions. Police officers have seen, and criminal defense attorneys have represented people accused of doing, much worse things.

Probably the craziest thing I do on this blog, and the thing most likely to get me disbarred, is openly criticize judges. A couple friends and family members have wondered at some of the things I’ve written, and wondered if I wasn’t scared that a judge might read them. Despite the modest readership of this blog indicated by sitemeter, a couple local attorneys have randomly mentioned to me that they read the blog, and complimented me on it. I have to assume it’s likely that others in the local legal community, including possibly some judges I appear before, have read it, and aren’t amused. This realization no doubt contributes to the generalized sense of estrangement and alienation I noted in my previous post.

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Thus writes Justice Ginsburg, joined by Justices Sotomayor and Breyer, in their dissenting opinion in Cavazos v. Smith, in which the majority summarily reversed a Ninth Circuit decision holding that no rational trier of fact could have found beyond a reasonable doubt that the defendant was guilty of shaking her grandchild and causing his death in 1996. As a result of the majority’s decision, the grandmother, who has been free for the last five years, will now have to return to prison.

The very fact that the presumably-rational Ninth Circuit judges found that no rational trier of fact could have found the defendant guilty beyond a reasonable doubt should itself demonstrate to a rational mind that no rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Even the majority on the SCOTUS admitted that “Doubts about whether Smith is in fact guilty are understandable.” If those doubts are understandable, they’re reasonable.

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Eric Rasmusen has an excellent point-by-point critique, which I also linked to in my last post, of the Indiana Supreme Court’s September 2011 opinion granting rehearing and “restat[ing] the essential holding” in Barnes v. State. The Court’s original opinion held that the common-law “right to reasonably resist an unlawful police entry into a home is no longer recognized under Indiana law.” The opinion granting rehearing, on the other hand, holds that the common-law right to reasonably resist unlawful entry into a home is not a defense to the crime of battery on a police officer. (Furthermore, it also appears to suggest that the Indiana statute authorizing “reasonable force . . . to prevent or terminate” the unlawful entry of a dwelling is not a defense to the crime of battery on a police officer, either, on the grounds that battery on a police officer to prevent or terminate the police officer’s unlawful entry of a dwelling is never “reasonable.”)

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“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.” — Albert Jay Nock, Our Enemy, the State (1935)

Seattle crime-fighting “superhero” Phoenix Jones knows he has it, and more power to him.

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Volokh has links to the judge’s offending opinion and the higher court’s contempt finding. A commenter writes:

Before this gets farther, the underlying case was the charge of murdering an officer. Subsequent evidence –official police investigation and all witnesses– state the act was unintentional homicide in the act of self defense. The officer had a history of violence, and first (without provocation or cause) chased one brother down and beat him with an axe-handle. Then the officer went after and started to beat the other brother with the axe-handle; initiating a 5 minute tussle in which the officer’s gun was discharged.

The trial court Judge’s disrespect was for the prosecutor who made an involuntary manslaughter plea offer, then denied making it. When confronted with an audio tape of the offer, the prosecutor retracted it for voluntary manslaughter. In addition, the prosecutor flouted the court by refusing to attend the plea hearing, etcetera ….There is far more underneath all this –and far more background too– but the Virgin Islands Daily News has a splendid reporter who gives a great summary of this series.

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Earlier this week one dismissed a pot possession case after I persuaded him that he couldn’t, or at least shouldn’t, prevail against my client’s motion to suppress based on an improper vehicle impound and search. What’s crazy is that the written impound policy used by the police agency that stopped my client’s vehicle and impounded it tells its officers that driving while suspended by itself is sufficient grounds to impound a vehicle, and this is the rationale the officers gave my client at the scene for impounding his vehicle over my client’s objection. But this clearly violates the Fourth Amendment to the U.S. Constitution, according to the Indiana Supreme Court in Taylor v. State (2006). The prosecutor tells me he’s going to work with the police agency to rewrite their impound procedures so this doesn’t happen again. Good.

What’s also crazy is that, based on an order issued this week in a divorce case by the same judge who presided over the pot possession case, I can’t at all be confident that I would have won the motion to suppress had it been left up to her. What’s frustrating is that her abuse of discretion in the divorce case order, as abusive as it was, only harmed my client by a few hundred dollars, making it uneconomical to appeal. I may do something anyway, just on principle. (Note to self: get out of family law already.)

Alas, these are the concluding words of the dissent in In re Chase (7th Cir. 1972), found via this post by Eugene Volokh about a Muslim woman on trial in federal court for “allegedly funneling money to a terrorist group in Somali” who has been found in contempt of court and sentenced to 50 days in jail for refusing to rise when the judge entered the courtroom.

I consider myself neither exceptionally brave nor a paragon of chivalry, but if I was a state supreme court justice and an angry sister justice rushed up to me and got in my face, I don’t think I’d “reflexively” put my hands around her neck, as Justice David Prosser of the Wisconsin Supreme Court recently did. I think I’d have the presence of mind and the dignity to wait until she actually did something like smack me in the face before I tried to choke her.

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Debbie Harbeson in the July 7th New Albany News & Tribune:

Let’s say you — or someone you care about — had a few drinks one night and, knowing it would not be a good idea to drive, decided to let a sober person take the wheel.

Did you realize you can still be charged with a criminal offense? It’s true. The Indiana Supreme Court just affirmed this in Moore v. State.

. . .

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— reversing the Indiana Court of Appeals to reinstate a criminal conviction for no good reason (as they also recently did in Barnes and Coleman).

The facts in Brenda Moore v. State were not in dispute:

The defendant had consumed two tall cans of beer at her sister’s house on the evening of December 5, 2008. A friend of the defendant’s brother asked for a ride to visit a friend. The defendant explained to him that she could not drive because she had been drinking but that he could drive her car if he had a license. The brother’s friend then drove the defendant’s car with the defendant riding as a front seat passenger. When an Indianapolis Metropolitan Police Officer pulled over the car because the license plate light was not working, the officer determined that the driver did not have a valid driver’s license and that the defendant could not operate the vehicle because she was intoxicated.

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How is it that the supposed anarchist and proprietor of lysanderspooner.org has come to write this drivel (comments closed) at the Volokh Conspiracy about what he calls “The Dangerous Effort to Delegitimate Supreme Court Justices” (emphasis added) — and in particular, Justices Thomas, Scalia, and Alito?

Has Barnett read the recent USA Today retrospective which “lays bare the complete disdain Justice Thomas has shown for those accused of and convicted of crimes” during his 20 years on the SCOTUS?

I can only assume that he has, and that the former prosecutor shares Thomas’ disdain, as it would be consistent with Barnett’s apparent disdain for the innocent victims of War.

For my part, I prefer to highlight as edifying stories like this one about the Wisconsin Supreme Court, this one about the Michigan Supreme Court, this one about the Indiana Supreme Court, and yes, the USA Today story about Justice Thomas referenced above as well as this recent NYT story, which Barnett characterizes as “advancing another empty charge against Justice Thomas.”

Lysander Spooner would be so very proud.

Jamison Koehler cites Ashe v. Swenson (1970) as currently his favorite U.S. Supreme Court case. In a comment on his post I wrote: “If you like Ashe, you might also like Yeager. Until recently these used to be my favorite U.S. Supreme Court cases too.”

What recently changed my mind about these cases is the Indiana Supreme Court’s decision in Tyrus Coleman v. State (2011), and the utter failure of these cases to do Mr. Coleman (whom I represented at trial) any good. Now when I read Yeager the only significant thing about the case seems to me to be the fact that the defendant, Mr. Yeager, was an Enron executive.

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Indiana Code article 35-36 provides:

In any criminal action, either the defendant or the state is entitled as a substantive right to a preemptory change of venue from the judge without specifically stating the reason. The defendant or the state may obtain a change of judge under this section by motion filed in a manner and within the time limitations as specified in the Indiana Rules of Criminal Procedure. Each party is entitled to only one (1) change of judge under this section.

But see State ex rel. Jeffries v. Lawrence Circuit Court (Ind. 1984) and State ex rel. Gaston v. Gibson Circuit Court (Ind. 1984) (holding that this statute conflicts with one of the rules of criminal procedure adopted by the Indiana Supreme Court and is therefore of no force and effect), and Justice Hunter’s dissent in Gaston:

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I borrow the words of a commenter on a local story about the Indiana Supreme Court’s reversal of the Indiana Court of Appeals’ reversal of an innocent man’s attempted murder conviction and 45 year sentence, who writes:

First and foremost I know none of the individuals nor any of their family members involved in this. Having only followed coverage of this trial by this media. This is one of those traits of our court system that continues to perplex me. The Indiana Court of Appeals after careful consideration appeared to side with argument presented on behalf of Tyrus Coleman. The Indiana Supreme Court upon review of essentially the same evidence in turn rendered decision in total opposition to the lower court findings. Keep in mind, aside from the local trials these findings were not rendered by empaneled novice jurors. We as society are to then believe justice has truly been served in spite of the contradictions presented by our own court system.

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As Patrick says:

[T]here is a rule older and superior to that of the Constitution.  Many Americans do not believe that to be the case.  There is a philosophical divide in America, with the Justices of the Indiana court, and their Constitution, on one side, and a different law on the other.

One American called it “the Laws of Nature and Nature’s God”.

One Englishman called it “the Law of the Jungle”. [Link added.]

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In the blog post by Jamison Koehler that I wrote about here, Jamison remarked:

Six or so months ago I wrote about the malleability of truth at trial.  While I have since taken down this blog entry on the advice of Virginia bar counsel, I continue to believe that the objective truth is rarely, if ever, introduced at trial.

I commented:

If Virginia bar counsel advised you to take down a blog entry “about the malleability of truth at trial,” and you acted on such advice, I’m probably not long for this profession based on many of my own blog entries. Yet, believe it or not, I believe everything I’ve written is protected by the First Amendment, and don’t go out of my way to court trouble, and do give some thought to whatever uncertain and slippery line might be out there in the ether. It seems the real danger area is appearing to call into question the “integrity” of a specific judge, which I try to steer clear of. The rules of professional conduct, at least in my state, forbid making a “statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge.” Supposedly, though, we’re still allowed to criticize judicial decisions. But doesn’t any such criticism — to the degree it asserts the decision is contrary to the law and/or the facts — implicitly concern either the qualifications or the integrity of the judge(s) making the decision?

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A few days ago the Indiana Supreme Court unanimously granted transfer and adopted a court of appeals’ unanimous opinion reversing a St. Joseph County trial judge’s granting of an adoption of a minor child by the child’s stepmother over the child’s mother’s objection. The court of appeals’ opinion had concluded:

Under the circumstances before us, there is not a single shred of evidence indicating that this adoption could even remotely be considered to be in N.W.’s best interest.

As if that wasn’t already strong enough, the Supreme Court in its order adopting the court of appeals’ opinion went even further, going out of its way to observe:

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Jeff Gamso crosses over into my jurisdiction today with a post titled Indiana Wants To Be Ohio, about an Indiana Supreme Court disciplinary ruling issued last Friday, In the Matter of Patrick K. Rocchio. The pseudonymous Strike-Lawyer summarizes and comments on Jeff’s post thusly:

Jeff Gamso has been doing a lot of posting lately, which is good, he’s a good writer.  Today he revisits what he has termed the “Mark Gardner Rule”, which has to do with lawyers not criticizing judges, because if they do they’ll be disciplined by the attorney disciplinary committees or tribunals or star chambers or whatever it is they call them in whatever jurisdiction.  The occasion for Jeff’s post is that another lawyer had breached this rule, one Patrick Rocchio of Michigan or Indiana, or something.

Now, my own criticism of what Mr. Rocchio supposedly did has more to do with the poor aim of the invective, not the invective itself.  The best argument to have made to the disciplinary committee and the court . . . is that  chicken shit disciplinary charges are visited only upon independent, private practitioners like Rocchio.  Never upon big firm lawyers.  Never upon government lawyers.  Never, ever upon prosecutors.  Indeed, government lawyers can commit huge violations without a peep from the disciplinary committees.

It’s the way lawyer “discipline” functions all over the country.  There is only a small – and shrinking – pool of attorneys that are even eligible to be disciplined, although in theory of course all lawyers are subject to the rules.  But it just isn’t true.

To justify their existence, then, disciplinary committees must increasingly target that small group of lawyers for smaller and smaller “violations”. The inevitable result is that independent practitioners, in addition to meeting the other formidable demands of providing quality representation to individuals, must regularly fend off time consuming “ethics” probes from the disciplinary committees over chicken shit allegations.  That’s exactly what the Rocchio matter was, and that’s why he got mad.

He was right and the disciplinary committee and the referee and the court were all wrong.  But he’s the one who’s going to get a black mark and whose “career”, whatever that is, is going to be damaged.

The supreme court noted that but for Rocchio’s “conduct during the disciplinary process” it would have only imposed a public reprimand or an even lesser sanction for the underlying minor “violation.” But after hearing what Rocchio had to say about her and the other players in the disciplinary process, the hearing officer had recommended that the supreme court suspend Rocchio from the practice of law in Indiana for at least one year without automatic reinstatement. (The phrase “without automatic reinstatement” is a big deal.) The majority of the supreme court concurred with her recommendation but found a period of 180 days without automatic reinstatement to be “sufficient.” (Even the lone dissenter would have imposed a 30 day suspension without automatic reinstatement.)

Compare the disposition of Rocchio’s disciplinary matter with another Indiana Supreme Court disciplinary ruling issued the same day, In the Matter of Heather McClure O’Farrell, and especially with the dissent of the Chief Justice and another Justice, who instead of the public reprimand imposed by the majority would have imposed a period of suspension without automatic reinstatement, apparently because the respondent’s attorney had vigorously argued that the facts she had stipulated to did not constitute misconduct and had thereby demonstrated that she was “unrepentant.”

Now, contrast both of these disciplinary opinions with a third disciplinary opinion issued by the Indiana Supreme Court just yesterday, In the Matter of the Honorable William E. Young, Judge of the Marion Superior Court, and with one of the things the Honorable Judge did to richly deserve sanctions:

Throughout 2009, Respondent engaged in a practice of imposing substantially higher penalties of $300 to $400 in fines, plus court costs, against traffic-infraction litigants who exercised their right to trial and lost, as compared to those who pleaded guilty and waived their right to trial. Indeed, in one instance, when a traffic-infraction defendant came before the bench and was trying to decide whether to admit or deny her infraction, Respondent stated, “I’m a great listener but sometimes I’m very expensive.”

Respondent admits he engaged in this practice in part because he believed the litigants on whom he imposed the higher fines should not have pursued trials, and in part because he wanted to discourage other litigants from exercising their constitutional rights to trials.

By agreement of the Honorable Judge and the Commission which brought the disciplinary action against the Honorable Judge, which the supreme court accepted, the Honorable Judge was suspended from office without pay for a mere 30 days with automatic reinstatement. But in a separate opinion concurring in the result, the Chief Justice, apparently without intentional irony, wrote:

I would expect that in the absence of a settlement, this case should have resulted in a lengthier suspension. The per curiam understates the willfulness of the Respondent’s conduct and the damage it has done to the public standing of the judiciary. Fortunately, the overwhelming number of Indiana’s judicial officers strive demonstrably toward a much higher standard.

Needless to say, that last sentence quoted above from the Chief Justice’s opinion is just that — an opinion.

The Chief Justice concludes:

Still, as in other litigation settings, there is much to be said for the benefits of settlement, so I have joined in approving the agreement tendered by the parties.

I sure wish the supreme court had approved the agreement I made with the Indiana Disciplinary Commission for an “administrative reprimand” in my old disciplinary case, and that the Chief Justice hadn’t then dissented from the supreme court’s approval of the agreement I subsequently made with the Commission for a private reprimand, on the grounds that he believed the sanction to be “inadequate.”

A Judicial Strike? Only In France; U.S. Judges Lack The Courage

John Brown and the Grapes of Wrath

A Simple Reform Of Adam Walsh Act — Rebuttable Presumptions

I don’t take issue with Harvard law prof Noah Feldman’s concluding suggestion in his op-ed in the NYT that maybe we should do away with judges’ black robes, as I’ve suggested the same thing myself. However, our rationales are fundamentally different. My rationale is that judges shouldn’t be politicians but generally are, and therefore don’t deserve as a class to wear something apparently designed to mislead people into believing they’re something other than what they are. Feldman’s rationale appears to be that judges not only are but should be politicians and should hobnob, “dr[i]nk regularly,” play poker and hunt ducks with other politicians, and therefore should lose the robes so people don’t think they should be anything other than what they are.

H/T Scott Greenfield at Simple Justice

Recently I’ve found myself engaging in an endeavor that might strike a casual reader of this blog as hypocritical. Essentially, I’ve been urging a recently charged criminal defendant (who is not a client and who is currently unrepresented by counsel) to follow the rules of the court in which he’s been charged, to increase his chances of beating those charges. The defendant, however, believes the courts and the judges that rule them are lawless, and so his stated strategy is not to play by their rules but to try to force them to play by his.

I’ve been forced to ask myself: how does my advocacy of what might sound to him and others like meek submission to authority cohere with the radical philosophical anarchism I espouse on virtually every post of this blog? After all, haven’t I said, and meant, that the State is of No Authority? Why submit to its arbitrary rules, when we have better rules of our own?

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