People v. State

fairly undermining public confidence in the administration of justice
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November 15, 2011 By: John Kindley Category: John Regan

I swear I’ve been meaning to write this post about “Categories” for the last couple days, even before John Regan wrote his post today about “Categories of Thought.” My post is more mundane and of a housekeeping nature: As part of my intermittent quest for minimalism in this blog’s presentation, I’ve replaced both the Blogroll and the Links page with the Categories drop down menu to the right. Note that each of the bloggers who used to be on the Blogroll is now his own Category, so you can select his name and see every post here in which I’ve mentioned and/or linked to him. Most of my Categories are People. (I decided to clean up the blog and revamp my Categories this weekend, and have actually only gotten halfway through all the posts, working sporadically from the most recent back towards the very first post a couple years ago. Therefore, clicking on a Category won’t yet bring up any of the older posts that fit under that Category.)

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Good on Mark Bennett . . . (Updated)

October 15, 2011 By: John Kindley Category: John Regan, Norm Pattis

. . . for leaving this comment on a post at John Regan’s blog about a motion Regan and Norm Pattis have submitted to the SCOTUS on behalf of Sephora Davis (Background here, here, here, here and here):

That is some lawyering. Good for Norm for jumping in, and godspeed to you and Sephora.

And good on Marc Randazza for not deleting this comment on a post in which he professed his atheism and asserted, inter alia, that “[i]f you believe in a magic space zombie Jew, you’re not rational enough to be president either”:

Hmmm… I would then assume that you could heap the same scorn on someone for their lack of beliefs…. so I will. The writer of this blog is a pompous ass know it all who thinks that his way is the right way. He is no better than those he despises. But….. that’s the way it always is.

Have a nice day.

UPDATE: I want to make clear that I don’t agree with the comment posted on Marc’s blog. I actually agree with the main point of Marc’s post. I just think some bloggers should have thicker skins.

The Philosophy and Practice of Law and Liberty

August 27, 2011 By: John Kindley Category: Darian Worden, Gerry Spence, John Regan, Ken at Popehat, Matt Brown, Presumption of Innocence, Prosecutors, Vincent Bugliosi

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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I don’t have any heroes, but I do have a few friends.

August 21, 2011 By: John Kindley Category: Gerry Spence, Jeff Gamso, John Regan, Mike Cernovich, Tony Serra, Vincent Bugliosi

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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You have nothing to lose.

August 20, 2011 By: John Kindley Category: John Regan, Mike Cernovich, Vincent Bugliosi

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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Thoughts on Strike Lawyer

August 19, 2011 By: John Kindley Category: John Regan, Mike Cernovich

Mike at Crime & Federalism, who’s been a supporter of John Regan aka Strike Lawyer, now writes, in connection with the release of the West Memphis 3:

The conviction remains a total outrage, although I’ll wager the young men who were wrongfully convicted are pleased that their lawyers didn’t go on strike.

I commented in response:

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And Jesus said unto him, Why callest thou me good? none is good, save one, that is, God.

August 17, 2011 By: John Kindley Category: John Regan, Religion, Tony Serra

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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Norm Pattis and “Strike Lawyer” on the Casey Anthony Verdict

July 06, 2011 By: John Kindley Category: Casey Anthony, John Regan, Norm Pattis

First, Norm Pattis:

Two things struck me from afar about why the defense won this case, and both come down to rules broken by Casey Anthony’s lawyer. If Mr. Baez had tried the case according to the textbook, he might well have lost it.

According to Norm, these two unconventional things were: (1) laying out in opening statement and arguing for in summation a theory of how Casey’s daughter died, even though he kept Casey from testifying and wasn’t able to offer any actual evidence supporting this theory at trial; and (2) arguing to the jury that the case against Casey was not strong enough to support a penalty of death, even though punishment is not supposed to be a consideration during the guilt phase of trial.

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Three Takes on the Casey Anthony Verdict

July 06, 2011 By: John Kindley Category: Bryan Brown, Casey Anthony, John Regan

Doug Berman:

By turning this case into a capital prosecution, prosecutors ensured jurors would have to be “death qualified” and thus would know from the outset that prosecutors wanted Anthony executed for her alleged crimes.  Though sometimes death-qualified juries may show a greater willingness to convict, here I suspect that the death-qualification process could have primed the jurors to expect a forensic smoking gun showing conclusively that Casey Anthony murdered her daughter in cold blood.  When no such smoking gun was presented by the prosecution, the jurors may have ultimately been much more willing (and perhaps even eager) to find reasonable doubt on all serious charges.

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The meek will inherit the Bar.

February 16, 2011 By: John Kindley Category: Admission & Discipline of Attorneys, Jeff Gamso, John Regan, Judges

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.”

What Strike-Lawyer said re: The Defense Function

January 02, 2011 By: John Kindley Category: Criminal Defense Lawyers, John Regan, Justice, Prosecutors

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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