People v. State

I wouldn’t write this blog if part of me didn’t love the law.

But one of the greatest lawyers who’ve ever lived, Lysander Spooner, never “practiced” much law. One of the greatest lawyers alive today, Tony Serra, confessed to his biographer that he regarded “going into law” as for him “a fall from grace.”

I suspect being a lawyer is like being a priest. The priest can repudiate the Church. He can be excommunicated by the Church. But he’s still a priest.

(H/T Matt Brown)

Check out this eye-opening essay by Alan Dershowitz (H/T Evolution News & Views) at the website of a new movie about the Scopes Monkey Trial, “alleged,” starring Brian Dennehy as Clarence Darrow and Fred Thompson as William Jennings Bryan. As Dershowitz shows, the textbook from which John Scopes was accused of teaching, Hunter’s Civic Biology, was replete with racism and eugenic advocacy.

On a related note, Jeff Gamso credits Mike at Crime & Federalism with having the best tag line in the whole blogosphere:

Because everything I was ever told was a lie.

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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From Lust for Justice, Paulette Frankl’s biography of J. Tony Serra:

“The most vital human force on the face of the Earth,” he says, “is the true believer. It’s naive. It’s simple. It’s non-intellectual. It’s a wholehearted commitment to a cause. It’s what everyone’s afraid of. That’s what I bring into the courtroom.”

Serra’s insistence on swimming against the current on occasion, however, doesn’t translate outside the courtroom, even right outside the door. Considering himself the last of a dying breed, a sociological throwback, often results in estrangement. Wherever he goes, he admits, he feels estranged.

“Existentialism 101,” he says. “Disgorge yourself of everything, and redefine yourself, and ultimately the first level you reach is estrangement. The first level you feel is your alienation. I’ve never overcome that.”

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Strike the Root links today to my recent post on the Presumption of Innocence, which largely consisted of quoting J. Tony Serra on the subject. I wanted to add one thing to Serra’s inspirational words: A recent Gallup poll found that, for the first time since Gallup began asking in 1969, more Americans support legalization of marijuana than oppose it. My view is that, so long as fewer than 92% of Americans (nevermind 50%) have supported the criminalization of marijuana, so long has the criminalization of marijuana been exposed as itself an infamous crime.

If 11 out of 12 jurors in a criminal case vote to convict, only 91.66% of those jurors have voted to convict. We righteously require more than that to overcome the presumption of innocence and convict a person of a crime.

If we the people really believe that government derives its just powers from the consent of the governed, and that we are endowed by our Creator with the inalienable right to the pursuit of happiness, then we should presume innocent not only every person but every person’s pursuit of happiness, and it should take a lot more than just a bare majority of self-serving politicians to rebut that presumption and to deem anything anybody does a crime.

My idol Tony Serra is quoted in Lust for Justice as saying to a graduating class of law students:

I believe that the presumption of innocence is a fabulous thing. It’s perhaps the most cherished thing that we have given body to as a culture. Americans don’t really stand for very much. We’ve invented the cowboy movie. We’ve certainly invented a lot of implements of destruction: military airplanes, deadly toxins, and bombs. We jealously guard our atomic weaponry and disallow everyone else to have it. But on the good side, we’ve given concrete form and expression to the concept of presumption of innocence and we’re giving it now to the world. It’s really one of the pillars of a free society. We presume innocence. We make the prosecution prove its case beyond a reasonable doubt, to a moral certainty. What a fabulous notion!

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Noted A. E. Housman, whom Darrow visited in 1927. Housman has long been a personal favorite of mine, ever since I was turned on to him (and Omar, and Reading Gaol) by Robert Service’s poem “Bookshelf.” Here’s a representative sample:

Stars, I have seen them fall,
But when they drop and die
No star is lost at all
From all the star-sown sky.
The toil of all that be
Helps not the primal fault;
It rains into the sea,
And still the sea is salt.

I am, alas, not particularly inspired by the Occupy Wall Street movement,  for sentiments suggested by the poem above and reasons expressed by Thomas Knapp, Gerry Spence, and especially Claire Wolfe, who advises: “Occupy Your Ownself.”

I’ve been reading Clarence Darrow: Attorney for the Damned (2011), by John A. Farrell. Here’s a couple excerpts from the first few chapters which particularly spoke to me.

From Chapter 2 (“Chicago”):

George Schilling was a prominent trade unionist when he encountered Darrow at a gathering of freethinkers. The other speakers had gone too far in mocking the ministry of Jesus Christ, and Darrow “jumped in, and with a ten-minute speech defended the carpenter’s son of Judea with such a sympathetic, persuasive voice that I fell in love with him,” Schilling recalled. “We became fast friends.”

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The above was the original subtitle of this blog, before I changed it sometime back to “Fairly Undermining Public Confidence in the Administration of Justice.”

But you know who really excels at illuminating the philosophy and practice of law and liberty? Matt Brown, relative to whom I’m a piker. I want to highlight here a couple paragraphs from his latest post.

First:

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Some defense attorneys who have blogs seem to be fans of D.A. Confidential, and revel in their professional cordiality. Me, not so much. Here’s #7 on his Top Eight list of why win/loss tallies are pointless:

7. None of us should be afraid to try the hard cases. Sometimes we have cases where we are convinced the person is guilty, but maybe for evidentiary reasons, we also know it’ll be hard to prove it. The defense knows it, too, so won’t plead. I think sometimes we have to try and convince a jury in those instances, even if the risk of losing is high. It’s simply the right thing to do. And, you know, sometimes when we do that, we win.

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Tony Serra comes closest to hero-status for me, but I take him at his word when he says that he is a deeply flawed human being and that his primary motivation as a criminal defense attorney is the gratification of his own ego.

I’ve been accused of being a Bugliosi groupie. I challenge anyone to actually read And the Sea Will Tell and then tell me that Vincent Bugliosi was not a badass criminal defense attorney. This doesn’t mean he’s a hero of mine that I aspire to emulate. It is easier for a camel to pass through the eye of a needle than for a former prosecutor to enter the kingdom of heaven, at least until after he’s smoked a turd in Purgatory for every hour of unjust incarceration for which he is responsible. (Both Serra and Gerry Spence are also former prosecutors, by the way.) But I’ve got to respect a guy, perhaps especially a guy primarily famous for being a prosecutor, who has written things like this, this and this. Read those links, and then tell me whose “side” Bugliosi is on.

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First, Mark Bennett wrote a post reversing his previous condemnation of John Regan, the formerly anonymous author of the Lawyers on Strike blog, as a “coward.”

Then, Scott Greenfield tried to kick John Regan’s ass and “revealed” that John Regan was also commenter “John R.”.

Then, Bennett updated his post to write of John Regan that “it might be better for the criminal-justice system if he stays in Canada.” Bennett’s reversal of his reversal was based on the following comment left by John R. at Greenfield’s blog in 2010, which both Greenfield and Bennett at the time adjudged “scary bad”:

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Scott Greenfield, in the course of trying to kick the ass of John Regan (aka Strike Lawyer, fka Atticus), opines:

Nuthouses are full of people who believe they are saviors, if only they can nail themselves to a cross. . . .

None is the gravest injustice ever, except perhaps the Holocaust.

In the same post Greenfield references an exchange he had in 2009 with Regan, then commenting under the handle “John R.,” on Greenfield’s blog. Coincidentally, back in 2009 I wrote a post here describing an earlier exchange between Greenfield and the same “John R.” on Greenfield’s blog.

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Or not:

To me, the fundamental truths of anarchism have become blindingly self-evident: The politicians and lawyers who make, interpret and enforce “the laws” are, on average and as a class, less honorable, wise and just than are people in general. The State is designed, not to protect and serve, but to steal from the poor and give to the rich. The State has no moral authority. There is no law other than the Laws of Nature and of Nature’s God. The State is in its essence an usurper and an imposter. We are morally obligated to obey only those of its “laws” which happen to plagiarize the Laws of Nature and of Nature’s God, and are morally obligated to disobey those of its “laws” which violate the Laws of Nature and of Nature’s God.

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What follows is an email I sent today to Norm Pattis, with links to pertinent posts on various blogs added:

Norm,

I am completely disgusted by Greenfield’s hit piece on you. The guy’s a raging hypocrite. Look at his very first blog post at Simple Justice. It clearly had in mind as an audience and was directed to potential clients.

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In a comment on Mark Bennett’s post criticizing a Colorado district attorney’s plan to offer cash bonuses to her deputy prosecutors who participate in at least 5 trials in a year and win a felony conviction in at least 70% of them, I remarked:

I agree with Gerry Spence: If a prosecutor is doing his job right, he should never lose at trial.

[As I noted in this post, Spence wrote of his stint as a prosecutor in The Making of a Country Lawyer:

I finished my second term having tried many more cases, none of which I lost, not that such a record stands for much. With all the power prosecutors possess, they ought not lose cases. The wrong case, the unjust case should be rejected in the prosecutor’s office before he seeks an indictment.]

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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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Darrow is not as high on my list of all-time favorite people as he is on that of other criminal defense attorneys, but I thought they might not have seen these essays by him and find them of interest:

How to Abolish Unfair Taxation (1913)

The Land Belongs to the People (1916)

Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution’s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe but more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth.

— Mr. Justice White’s dissenting opinion in United States v. Wade, 388 U.S. 218, 256-58 (1967) (Emphasis added.)

Prosecutors may read this famous opinion differently, but I read it to say that the mission of defense counsel is to do justice.

Justice is the absence of crime. Convicting the innocent is a crime if ever there was one. The “justice” of prosecutors is justice only in a derivative sense. It’s the use of punishment — which itself outwardly resembles crime — to try to prevent or deter future crimes and/or somehow negate or provide satisfaction for crimes which have already occurred. Its purpose is to approximate so far as possible justice in its root sense, but historically hasn’t gotten us very far.

Apparently I was wrong when I recently wrote that “everybody disagreed with . . . my skeptical challenge to the common wisdom regarding the role of the criminal defense attorney relative to justice and the role of the prosecutor.” In a post critiquing Mark Bennett’s recent post about The Defense Function, the anonymous author of Lawyers on Strike, noting my comment on Bennett’s post, writes:

Kindley and Bennett and Scott Greenfield have had an ongoing disagreement about just what it is that criminal defense lawyers “do”.  I’ve weighed in on that debate obliquely:  here and here, for example.  And here.

Does this segue into The Question?  Maybe.  Bennett seems to think so.

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