People v. State

fairly undermining public confidence in the administration of justice
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“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.

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