People v. State

One of the most remarkable things about the collection of short stories by Ferdinand Schirach entitled Crime is that the legal system he describes (i.e. Germany’s) is far more humane and just than the system we’re familiar with here in America. His abrupt claim therefore in the very last sentence of the Afterword that the differences between the two systems are “insignificant,” after everything that’s gone before, strikes the reader — or at least the informed American reader — as intentionally and enigmatically untrue.

Two significant differences: In Germany, the prosecutor is supposed to remain “neutral” and is apparently not even supposed to take a position at trial on the defendant’s guilt or innocence, leaving that determination to the judges and jurors. Another significant difference is that in Germany there is no such thing as “plea bargaining,” which we here in America imagine is indispensable.

Two of my favorite stories were “Summertime” and “Self-Defense.” I remain befuddled by the last paragraph of the former story, which suggests that the criminal defense attorney pulled a fast one on the prosecutor and the court and by that legerdemain got his more-than-likely guilty client acquitted of murder. I still fail to see the flaw in the argument that persuaded the prosecutor and the court, and would be grateful to any reader who would be so kind as to cure my blindness.

“Self-Defense” begins with a heart-warming account of two neo-Nazi thugs looking to have a little ultra-violent fun at the expense of a mild mannered bespectacled middle-aged man on a subway platform getting their comeuppance when the man goes all Jason Bourne on their asses and fatally dispatches them to the netherworld with uncommon skill. Turns out the middle aged man is very likely a professional hit man for very wealthy and connected people. The criminal defense attorney of course gets this man acquitted of all charges and released back into society. The story ends with the criminal defense attorney giving rare expression to feelings of disgust (feelings which weren’t expressed at the conclusion of “Summertime,” for example), although it’s not clear whether that disgust was solely in reference to the man himself or whether it was directed to the attorney’s own role in securing his release. If the latter, it might conceivably be explained by the observation that there is dangerous and there is dangerous. A man who has committed a murder and has thereby demonstrated that he is capable of murder is undoubtedly more dangerous than your average man, but a man whose very profession is murder will undoubtedly commit more murders. This cannot sit well with a man whose profession is to defend people, even if his job may call upon him to try to set a professional murderer free.

One little gripe with the book: The author in his Preface makes it sound like these stories are true crime stories drawn from his own criminal defense practice, and this impression has found its way into more than one review. While I don’t doubt Schirach found inspiration in real life cases, his stories are obviously fiction.

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Here is a pivotal scene from The Proposition.

Here is the chapter from George Borrow’s Lavengro that the two doomed men in that scene quote. The title of this post likewise comes from that chapter.

I have a few further thoughts on The Proposition. In an earlier post I implied that I approved of Captain Stanley’s “proposition,” but that’s not quite right. For one, Stanley himself tells Charlie Burns not only that his older brother Arthur must be “stopped” but that the reason he wants Charlie to kill Arthur, rather than let bounty hunters “stop” him, is to “hurt” Arthur, to show him that he is a “man like other men.” For another, there is an interesting and surely intentional juxtaposition between two scenes in which two very different men remind Stanley that he is not the “judge and jury.” The first man to tell him this is Charlie, after Stanley tells him he intends to have his younger brother Mikey hanged on Christmas Day, unless Charlie kills Arthur. The second man to tell him this is Stanley’s superior, after Stanley tells him that he doesn’t believe Mikey is responsible for the monstrous crimes of his brother Arthur. For a third, Stanley is determined to defend Mikey by any means necessary from the townspeople who intend to flog him, until his own wife joins the townspeople and asks him what if the pregnant woman Arthur had raped and murdered had been her. Then he caves, and permits the fatal flogging to go forward. (Notably, the brief “argument” against the flogging he makes to his wife is not based on Mikey’s innocence but on his prescient apprehension that the flogging will be their “death sentence.”)

There is no room in a just society for “rewarding” a defendant for “accepting responsibility” for his “crimes” at the point of a gun, whether that “acceptance of responsibility” manifests itself by an expression of remorse / coerced “confession” at a guilty plea hearing or by snitching on / betraying one’s partners in “crime.”

Obviously, we do not live in a just society.

The scene from The Proposition I’ve linked to above suggests Charlie should have “stopped” Arthur long before the events portrayed in the movie began. If he had done so, Mikey wouldn’t have been flogged to death. At the end of the movie, Charlie accepts responsibility.

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He evidently wouldn’t be a lawyer, as suggested by the fact that he wasn’t one, although he did dabble successfully in pro bono capital defense. Rather, despite family connections that presumably would have allowed him to be anything he wanted to be, and despite his profound grasp of the law, he chose to earn his daily bread by carpentry.

Tucker Max wouldn’t have been a lawyer either.

Nor would Tony Serra.

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The Center for a Stateless Society announced yesterday that it has cut all ties with a former staff member who turned informant for the State to save her own skin from drug charges.

I hope and believe that if I ever found myself in a similar situation I would have the courage to die like a lion rather than live like a dog, as Tony Serra so passionately put it. But it’s important to remember that the State, which tortures people into betraying their friends, is the real monster here.

I’m cognizant of the apparent dissonance between this view and my implied approval of the fictional “proposition” I reviewed in my last post. I’m confident those who’ve seen that movie will appreciate the distinction.

I’m reminded of a post Jeff Gamso wrote a while ago in which he condemned as the lowest of the low a criminal defense lawyer who, by wearing a wire, had betrayed a client who was involved in a drug ring. I wholeheartedly seconded the condemnation in a comment, but noted, contrarian that I am, that a criminal defense lawyer might have a real ethical dilemma on his hands if he learns that his client is actively involved not in a drug ring but in a sex slavery ring. Another commenter suggested that if that’s what I thought I had no business representing people accused of crimes. But I think the actual Rules of Professional Conduct support me on that.

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A comment yesterday from an Australian who describes himself as “something a philosophical anarchist who practices criminal law (defence)” prompted me to reply:

I happened to watch last night The Proposition, which some critics have called the Australian Unforgiven. It’s now one of my favorite movies. Both of the main characters, one a law man, the other a criminal, are highly admirable in their own way. The movie speaks to the purpose of the criminal justice system being about prevention rather than vengeance. Have you seen it?

You can thank me after you’ve seen the movie, which speaks to a lot more than the purpose of the criminal justice system, which is currently available for free on Xfinity-On-Demand, and which IMHO is even better than Unforgiven.

After writing the above, I came across Roger Ebert’s review. He gives the movie 4 out of 4 stars and makes a comparison I’d thought of myself, although it seems to me Ebert gets some of the details wrong:

Have you read Blood Meridian, the novel by Cormac McCarthy? This movie comes close to realizing the vision of that dread and despairing story. The critic Harold Bloom believes no other living American novelist has written a book as strong and compares it with Faulkner and Melville, but confesses his first two attempts to read it failed, “because I flinched from the overwhelming carnage.”

SPOILER ALERT! (Don’t read until you’ve seen the movie.) At the end of the movie, Charlie’s brother Mikey is dead, from the wounds inflicted on him by a vicious flogging. Charlie thus has every reason to believe Captain Stanley had horribly welched on their “deal.” (Although Charlie too had welched on their deal, by enlisting his monstrous brother Arthur to bust Mikey out of jail, which resulted in the horrible deaths of Mikey’s jailors.) In fact, although Charlie would have no way of knowing this, Stanley had tried to prevent the flogging. On the other hand, the flogging went forward because of the intercession of Stanley’s wife, although it’s clearly apparent she has a major “change of heart” as she watches the flogging proceed. Mikey’s culpability, and for that matter Charlie’s, for the awful crimes of their older brother Arthur is not clear, although one gathers they were complicit in those crimes and that the hanging Stanley had promised Charlie that Mikey would incur if Charlie didn’t kill Arthur wouldn’t have been “unjust.” At the end of the movie, both Stanley and his wife are at the “mercy” of Arthur. She is about to be raped and both are about to be killed. When Stanley had made his “proposition” to Charlie at the beginning of the movie, and struck Mikey to prove his earnestness, Charlie promised Stanley that if he struck Mikey again Charlie would kill Stanley, a threat that seemed empty and ridiculous at the time. But at the end of the movie, Charlie kills his brother Arthur, telling him “No more,” thereby saving both Stanley and his wife, and thereby keeping up his end of the “deal,” even though Mikey was dead, and even though he had every reason to believe Stanley had killed Mikey (and even though Stanley’s wife was in fact the cause of Mikey’s death).

Although Ebert’s comparison to Blood Meridian is apt, this movie, to my mind, is not quite the “dread and despairing story” that one is.

AFTERTHOUGHT: Rereading the above impresses upon me that I have no future as a movie reviewer. I followed my spoiler alert with a mere statement of facts that someone who’d seen the movie would already be familiar with. Although reducing this movie to a moral doesn’t do it justice, the moral I find in these fictional facts is that vengeance destroys the vengeful, and that if we must stop a man bent on evil we must nevertheless acknowledge him as our brother.

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May they run over a cliff and drown.

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IOZ is right again, as usual.

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“Indiana’s newest Supreme Court justice says the court and its justices are ‘fallible’ and that public institutions should acknowledge that they won’t always get things right. . . . The 50-year-old Massa was appointed to the court by Gov. Mitch Daniels . . . . Massa is a former chief counsel to Gov. Mitch Daniels . . . .”

For an example of the newest justice’s “fallibility,” see here: “Massa, J., votes to grant the Petition to Transfer, concluding Appellant’s invocation of his right to counsel was ambiguous and thus his convictions on all counts should be upheld.”

From the unanimous Court of Appeals opinion that Massa would have overturned if he’d had his way:

Here, Anderson neither posed a question regarding needing an attorney as in Powell, nor expressed doubt as to whether he needed an attorney as in Davis and Taylor. To the contrary, he clearly stated, “I really want to talk to an attorney or something.” The State argues, or at the very least implies, that in order to make an unequivocal invocation of the right to counsel a defendant must “start and end” with “I want to talk to an attorney” and say nothing else. Appellee‟s Br. at 18. That would be clear and nice wouldn’t it? However, the State ignores the reality of an interrogation room, the naïveté of a defendant, and what often may be the diminished mental capacity of a defendant. Anderson was a twenty-two-year-old diagnosed schizophrenic, not a constitutional scholar. We are getting to the point in the interpretation of our constitutional law where the exceptions are swallowing the rules. We should not go further down the slippery slope the State urges and further eviscerate Miranda and an accused’s right to counsel. Anderson’s request for counsel in this case was unambiguous. . . .

AFTERTHOUGHT: I wonder if Massa’s remark about the courts’ “fallibility” might have had anything to do with this incident involving his old boss.

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Fear and Loathing: Manipulation of the Liberty Movement, by Bruce Jay at the Daily Anarchist:

Is there any reason to believe the end is coming soon?

In our lifetimes, the answer is no. It’s all about time. The greatest of all empires, the Roman Empire, collapsed over many centuries, not in a few days, years, or even decades.  Most living in Rome were not aware of the decline in real-time.  How could they?

Twenty years ago, my roommate commented that we were living in the decline of the American Empire.  She was most likely right, but twenty years later the change has been practically imperceptible. In terms of economic and political freedom, nothing has really changed. The most glaring exception is the TSA. In market driven areas (e.g., technology, communication, and medicine), things have vastly improved.

Furthermore, the passing of generations adds to the loss of perspective. If you’re four years old today, going to the airport and being molested by the TSA is nothing new to your life experience and hence, you have nothing to compare. God knows how many things I have taken for granted in my lifetime (e.g., income taxes) because I’ve never known any different. Funny, we often laugh at the elderly for their ideas and experiences, yet they are true witnesses of change. Sadly, most have passed on before any of us are old enough to know the right questions to ask.

The point is you can’t plan for doomsday because the process is slow and it takes place in the form of erosion, not catastrophe.  When the demise finally occurs, it has taken so many years to complete that those who might notice have died; others are acclimated from birth and have made the necessary economic and psychological adjustments. Of course, you can leave all your gold, guns, and gas masks to your great grandchildren.

The Policeman’s Your Friend — As Long As He Can Afford to Be, by Kevin Carson at the Center for a Stateless Society:

What we’re witnessing is the reality behind that Officer Friendly mask. This is what happens when the state perceives the general population as a threat, and drops the pretense that The Policeman is Your Friend.

People in predominantly black and Hispanic inner city neighborhoods — where police hardly bother to hide the fact that they see the local population as an occupied enemy that must be cowed by superior force — have seen this ugly face for decades. But in recent months, the radical upsurge in police violence at Occupy demonstrations, combined with ubiquitous cell phone video, have introduced the naked face of power to many in the white middle class public for the first time.

Lt. Pike of the UC Davis police force, methodically directing pepper spray into the upturned faces of peaceful (and predominantly white) college students, was a revelation to many in the burbs. But while it was the first sight for many, it won’t be the last. Because this is what the state looks like when it can no longer afford to maintain the facade of democracy. All that nasty stuff that used to happen to “those other people” beyond that Thin Blue Line — “It’s Giuliani time!” — is coming soon to “people like us.”

The American state has operated in a manner, if not lawful at least “regular,” toward most white middle-class folks most of the time, because it could afford to. It showed its nasty side to racial minorities and radicals, because they were less successfully socialized into consensus reality — and nobody “who counted” would listen to them anyway. But most of the public absorbed its conditioning in a more-or-less satisfactory manner. They believed this was a “free enterprise society” in which people with great wealth mostly earned it, giant corporations got that way through superior performance, the state represented all of us rather than some “ruling class,” and if you didn’t like the law you should work for change within the system — all that Pleasantville stuff. Constitutionalism and legality’s comparatively no-muss no-fuss — but only so long as the cultural reproduction apparatus successfully manufactures consent.

Now the conditioning’s starting to wear off. A dangerously increasing number of people understand that the system’s rigged in the interest of the 1%, and folks like us are playing in a crooked game. The state and the corporate ruling class that controls it have been stunned as measures that ten years ago would have gone through without a hitch, like SOPA and ACTA, suffered unexpected losses to networked movements. The system can’t work when too many people notice the man behind the curtain.

The state’s functionaries are beginning to realize how high the stakes really are. In response, its shock troops are dropping the Officer Friendly masks. So get ready: The state, before it’s over, will be as nasty as it has to be.

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A scientific revolution has generated new interest.

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I’m sure this explains the lyrical change between the 1994 and the 1998 performances evident in my last post:

As I Develop The Awakening Mind I Praise The Buddha As They Shine
I Bow Before You As I Travel My Path To Join Your Ranks,
I Make My Full Time Task
For The Sake Of All Beings I Seek
The Enlighted Mind That I Know I’ll Reap
Respect To Shantideva And All The Others
Who Brought Down The Darma For Sisters And Brothers
I Give Thanks For This World As A Place To Learn
And For This Human Body That I’m Glad To Have Earned
And My Deepest Thanks To All Sentient Beings
For Without Them There Would Be No Place To Learn What I’m Seeing
There’s Nothing Here That’s Not Been Said Before
But I Put It Down Now So I’ll Be Sure
To Solidify My Own Views And I’ll Be Glad If It Helps
Anyone Else Out Too
If Others Disrespect Me Or Give Me Flack
I’ll Stop And Think Before I React =
Knowing That They’re Going Through Insecure Stages
I’ll Take The Opportunity To Exercise Patience
I’ll See It As A Chance To Help The Other Person
Nip It In The Bud Before It Can Worsen
A Change For Me To Be Strong And Sure
As I Think On The Buddhas Who Have Come Before
As I Praise And Respect The Good They’ve Done
Knowing Only Love Can Conquer In Every Situation
We Need Other People In Order To Create
The Circumstances For The Learning That We’re Here To Generate
Situations That Bring Up Our Deepest Fears
So We Can Work To Release Them Until They’re Cleared
Therefore, It Only Makes Sense
To Thank Our Enemies Despite Their Intent
The Bodhisattva Path Is One Of Power And Strength
A Strength From Within To Go The Length
Seeing Others Are As Important As Myself
I Strive For A Happiness Of Mental Wealth
With The Interconnectedness That We Share As One
Every Action That We Take Affects Everyone
So In Deciding For What A Situation Calls
There Is A Path For The Good For All
I Try To Make My Every Action For That Highest Good
With The Altruistic Wish To Achive Buddhahood
So I Pledge Here Before Everyone Who’s Listening
To Try To Make My Every Action For The Good Of All Beings
For The Rest Of My Lifetimes And Even Beyond
I Vow To Do My Best To Do No Harm
And In Times Of Doubt I Can Think On The Dharma
And The Enlightened Ones Who’ve Graduated Samsara

Eminem on the death of Adam Yauch aka MCA: “I think it’s obvious to anyone how big an influence the Beastie Boys were on me and so many others.” I suppose it’s fair to question, relative to Eminem, the authenticity and the seriousness of the three Jewish friends from NYC with rather privileged upbringings who recorded the first ever rap album to reach #1 on the Billboard pop charts. But see here, and say a prayer for Ad-Rock and Mike D too. It sounds to me like they all grew up together, and kept it real.

See also [H/T Glenn Greenwald and Charles Davis]:

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ADDED: What a difference four years make. The video above is from 1998. The video below is from 1994.

ADDED: According to Wikipedia, B.E.A.S.T.I.E. is a backronym for “Beings Entering Anarchistic States Towards Internal Excellence.”

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In fact, why not make it 3000 hours, and get rid of the last two years of law school, leaving in the one year of coursework that’s left more than enough of the Socratic Method to teach aspiring lawyers how to “think like lawyers”?

Of course, unlicensed “lawyers” are not currently permitted to provide legal services except under the supervision of a licensed lawyer, so we would probably need to also impose on licensed lawyers, as a price for their monopoly, a pro bono requirement to provide such supervision.

Now, throwing that amount of pro bono hours into the market for legal services would not only completely solve the problem of access to justice for the poor, it might more than solve it, and seriously distort the market, so in this connection it’s important to note that “pro bono” has traditionally included not only working for free but also working for a significantly reduced fee.

Of course, the ideal towards which this solution would be a step in the right direction is a completely free market in legal services.

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“It” being Florida’s “stand your ground” law. Take one look at the questioner, Marissa Alexander, whom a jury convicted in 12 minutes, and who now faces 20 years in prison, and you may have your answer:

The local NAACP believes race may have played a role.

“There’s a double standard with stand your ground,” said Isaiah Rumlin, president of the Jacksonville Chapter of the NAACP. “The law is applied differently between African-Americans and whites who are involved in these types of cases,” he added.

Rumlin cited two shooting cases in Florida with white shooters: One had a successful stand your ground defense and the other has yet to be charged with a crime. . . .

I wonder whether Alexander was judged by a jury of her peers?

[H/T Jacob Sullum at Reason]

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. . . I had meant to highlight this post by John Regan at Lawyers on Strike from a couple weeks ago:

Ineffective Lawyers And Double Standards

I have nothing to add. Great post.

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Karl Hess wrote in Dear America:

On the far right, law and order means the law of the ruler and the order that serves the interest of that ruler, usually the orderliness of drone workers, submissive students, elders either totally cowed into loyalty or totally indoctrinated and trained into that loyalty.

Yesterday the ruler of America decreed:

NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, do hereby proclaim May 1, 2012, as Loyalty Day. This Loyalty Day, I call upon all the people of the United States to join in support of this national observance, whether by displaying the flag of the United States or pledging allegiance to the Republic for which it stands.

For the real history of May Day, see here.

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I had really wanted to weigh in on last week’s Bleeding Heart Libertarians symposium on “Libertarianism and Land,” but believe it or not I’m still practicing law, and this past Thursday I finally sent off to a faraway court (well, a few hours away, anyhow) a major project that I’m hoping will do a client (and maybe even some other lawyers’ clients) some good, and on Friday I had a family law case set for a potentially very ugly evidentiary hearing settle at the very last minute.

But I have to say, a lot of what was written in the Symposium was either too deep or too pedantic for me, and reminded me of why I changed my mind about pursuing a doctorate in philosophy way back when. I had been looking forward in particular to the submissions of Hillel Steiner and Fred Foldvary, two leading “neo” Georgists, on the one hand, and of Kevin Carson, the genius-in-residence at the Center for a Stateless Society, on the other. I was all set to favor Steiner over Carson on the “Land Question,” but both of these two surprised me.

Steiner wrote, among other things, this:

So, cutting another long story short, the inference seems to be that, under the general rule for rights to natural resources, we should tax parents on the value of their children’s genetic endowments. Or more precisely, we should tax them on the value of the germ-line genetic information they jointly appropriate in conceiving an offspring. And this tax, like taxes on people holding rights to other natural resources, goes into the global fund, on which everyone has an equal claim. What this tax does is to effect a net transfer from those who have genetically well-endowed children to those who don’t. And those with poorly-endowed children are thereby supplied with extra resources to develop their children’s abilities and, thus, to offset their genetically-predisposed disabilities.

No thanks.

Carson, on the other hand, in his submission wrote:

Although I still favor the occupancy-and-use standard, I do so much less stridently than I once did. I believe that what the principled land rights theories have in common is more important than what separates us.

. . .

Since no particular set of land property rules can be deduced from fundamental moral axioms, they must be evaluated on utilitarian or practical grounds: i.e., the extent to which they maximize other, fundamental moral principles.

The chief normative values I believe a property rights regime should optimize are to guarantee to the greatest extent possible the ability of the owner to recoup her labor input (in the form of buildings and improvements) from the land, and to minimize the amount of overall privilege and rent extraction.

. . .

Foldvary acquitted himself quite well, and after everybody had said their piece posted this trenchant summation, thereby winning the Symposium:

Finer points aside, nobody has offered a specific and coherent and realistic more efficient and equitable alternative for public revenue than land rent or land value.

In other words, IMHO, even in a Stateless Society it would still be necessary to join with one’s neighbors to provide for, at a minimum, the common defense of land rights from barbarian hordes et al., and land rent or land value would be the most only natural and equitable source of revenue for funding this common defense of said land rights.

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From the Electronic Frontier Foundation (H/T Crystal Cox):

[C]ourts occasionally identify a reluctance to extend journalistic protections to non-traditional “media” sources such as bloggers because of a perceived lack of a limiting principle. How can everyone potentially be a journalist? courts seemingly ask. This sentiment is frequently echoed by mainstream journalists who, rightly or wrongly, balk at the perceived threat of dilution of legal protections for traditional journalists posed when (as here) self-proclaimed journalists might go too far and risk protections for established media. As EFF and many others have pointed out, the proper approach to this question is to focus on what amounts to journalism, not who is a journalist. Journalism is not limited to a particular medium; instead, it focuses on whether someone is engaged in gathering information and disseminating it to the public.

From a recent article by Eugene Volokh (H/T Crystal Cox):

Both sides in the debate often appeal at least partly to the constitutional text and its presumed original meaning. The words “the press” in the First Amendment must mean the institutional press, says one side. The words must mean press-as-technology, says the other. Citizens United is unlikely to settle the question, given how sharply the four dissenters and many outside commentators have disagreed with the majority. So who is right? What light does the “history” referred to by the Citizens United dissent shed on the “text” and the Framers’ “purpose”?

The answer, it turns out, is that people during the Framing era likely understood the text as fitting the press-as-technology model—as securing the right of every person to use communications technology, and not just securing a right belonging exclusively to members of the publishing industry. The text was likely not understood as treating the press-as-industry differently from other people who wanted to rent or borrow the press-as-technology on an occasional basis.

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If you only read this through an RSS feed, check out the veritable library I’ve added to the sidebar. Your time will probably be better spent following those links than reading anything I’ve ever written, but I’ve also added links to 10 of my favorite posts here, my 10 most commented upon posts, and my 10 most viewed posts. I’ve also added to the Blogroll a link to the now-defunct blog I wrote before this one. I’ve also, in order to offend the blawgospheric purists amongst us, decided to finally cash in on this blog by adding Amazon links to 3 of my favorite books. So the way I understand it, I get a cut if you buy through those links Lust for Justice: The Radical Life and Law of J. Tony Serra by Paulette Frankl, Taking Back the Courts by Norm Pattis, and/or And the Sea Will Tell by Vincent Bugliosi. I’m counting on you, readers. I can’t wait to quit my day job.

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Jeff Gamso writes:

Our job is to defend.

It is emphatically not to seek justice unless justice is defined as “trying to get even guilty clients off,” which is a weirdly unlikely definition of the term.

Oh, I don’t know how weird and unlikely it is. Blackstone wrote:

As to the end, or final cause of human punishments. This is not by way of atonement or expiation for the crime committed; for that must be left to the just determination of the supreme being: but as a precaution against future offenses of the same kind.

If the prosecutor’s job is to “seek justice,” it is to seek punishment of the offender as a precaution against future offenses of the same kind. The criminal defense lawyer qua criminal defense lawyer, on the other hand, reasonably doubts that punishing his client will prevent future offenses, regardless of whether or not his client is “guilty.” Indeed, the job of the criminal defense lawyer is to prevent the very specific and definite “offense” which the prosecutor intends to inflict on his client in the immediate future. The job of the criminal defense lawyer is in this respect quite similar to, albeit more direct than, the job of the prosecutor: It is to prevent offenses, or, in other words, to seek justice.

Only if “justice” is equated with “atonement or expiation” does it become weird to say that the criminal defense lawyer seeks justice.

Coincidentally, I happened to watch an episode of Law & Order the other day titled “Justice,” in which former prosecutor Jamie Ross reported herself to the attorney Disciplinary Committee because, while representing a man whom she learned through her representation to be guilty of a murder that another man was on trial for, she gave an anonymous tip on the eve of trial to the deputy who was prosecuting the other man that, if followed through on, would have demonstrated his innocence. (The tip didn’t directly implicate Ross’ client, though it was likely to indirectly implicate him.) The deputy ignored the tip, and was made a judge shortly after the innocent man was sent to death row. Jack McCoy tried to prosecute the judge for attempted murder, but the case was dismissed. Ross was eventually exonerated by the Disciplinary Committee.

See Rule 1.6 of the Indiana Rules of Professional Conduct:

(a)    A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

(b)    A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(1)    to prevent reasonably certain death or substantial bodily harm;

. . .

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Said by federal Magistrate John Moulds in court to tax resister Cindy Sheehan. (H/T David Gross at The Picket Line)

I note that, while its Wars of Aggression are undoubtedly the most barbaric acts of which the American Empire is guilty, the Empire uses the tax dollars it extorts from We its Subjects to commit a million other crimes besides these, daily and from sea to shining sea.

By the way, I had meant on “Tax Day” to promote again, as I have before, The Picket Line blog by David Gross, whose “Don’t Owe Nothin'” method of tax resistance has long struck me as the most practical and principled way to live honestly as an American in these United States. I have nothing but respect for those who, like “high-powered” (in more ways than one) criminal defense lawyer J. Tony Serra, have risked or incurred prison by “failing” to pay “their” taxes. But I think it’s best not to let ourselves become fodder for the Prison-Industrial Complex if we can avoid it.

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Eric the Unwashed Advocate this week thanked Norm Pattis for an “extremely insightful,” and mind-boggling, post Norm wrote a couple weeks ago about the sentencing of one of his clients. Eric’s post itself provides insight into one way in which the military justice system is more rational and just than its civilian counterpart. According to Eric, the following jury instruction is the norm in military courts:

In adjudging a sentence, you are restricted to the kinds of punishment which I will now describe or you may adjudge no punishment. There are several matters which you should consider in determining an appropriate sentence. You should bear in mind that our society recognizes five principle reasons for the sentence of those who violate the law. They are rehabilitation of the wrongdoer, punishment of the wrongdoer, protection of society from the wrongdoer, preservation of good order and discipline in the military, and deterrence of the wrongdoer and those who know of his crimes and his sentence from committing the same or similar offenses. The weight to be given any or all of these reasons, along with all other sentencing matters in this case, rests solely within your discretion.

So apparently the very same people who determine guilt in the first place, the jurors, also determine the sentence appropriate to that guilt. This way of proceeding is in fact the only way for jurors to make sense out of that other familiar and indispensable instruction, presumably also given to military jurors, which admonishes them that they must be convinced beyond a “reasonable” doubt of the defendant’s guilt in order to find him guilty.

I had meant to comment on Norm’s post too, and specifically this paragraph:

We sent him to an expert on disorders of desire. Explain if you can this errant episode in the hero’s life? The doctor reports it was mere curiosity: No libidinal clock strikes twelve at the thought of a child. For a very brief period the young man looked at pictures. Now he is in prison, a felon, required to register as a sex offender, and a member of the ostracized community of those we abhor in a schizophrenic variety of purity.

I have a confession to make. I watched one of those infamous “beheading” videos several years ago, when its awful existence on the internet was publicized all across the mainstream media. Morbid curiosity got the better of me. I shouldn’t have done it. I was horrified, if not terrorized. Wasn’t that precisely why the terrorists who’d created the video created it, and indeed committed the awful crime depicted in it? Was I contributing to the incentives for the production of more such videos by watching that one? Isn’t that the very argument used to justify punishing so rigorously and mindlessly those who’ve looked at child pornography?

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“In cases with no blacks in the jury pool, blacks were convicted 81 percent of the time, and whites were convicted 66 percent of the time.” — Duke-led study on “The Impact of Jury Race in Criminal Trials.”

See the John McNeil case from Georgia and the Tyrus Coleman case from Indiana. In both cases, the defendants were black, claimed self-defense, and were convicted for shootings that occurred on their own property. I don’t know about the McNeil case, but there were no blacks in the jury pool in the Coleman case.

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Judge Kimba Wood wrote in footnote 23 of her Opinion and Order:

The Government’s argument suggests that if Heicklen’s speech were found to be protected by the First
Amendment, that speech must still give way because of the danger that jurors who receive a pamphlet like
Heicklen’s will disregard a judge’s instructions to render a verdict according to the evidence introduced before them
and the law as presented by the court. The Court notes that our judicial system rests, in part, on the belief that jurors every day follow much more difficult instructions, for instance, instructions to disregard eyewitness testimony that
they just heard and ignore evidence that they just saw. It is just as reasonable to trust that jurors will follow a
judge’s instruction to accept the law as explained by the judge and disregard the contents of a pamphlet handed to
them by a leafletter outside the courthouse. The essence of the First Amendment is that falsehood and fallacies are
exposed more effectively through discussion than through suppression, and that public debate affords adequate
protection against the dissemination of “noxious doctrine.”

Which is the “noxious doctrine,” the falsehood and fallacy that will be more effectively exposed and protected against through discussion and public debate: The doctrine that jurors have no right to do wrong? Or the doctrine that they must follow the judge’s instructions, even if the judge instructs them to do wrong?

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From S.D.N.Y. Judge Kimba Wood’s Opinion and Order:

As with any exercise in statutory construction, the Court begins with the text of the statute and draws inferences about its meaning from its composition and structure. United States v. Gray, 642 F.3d 371, 377 (2d Cir. 2011). The federal statute prohibiting influencing a juror by writing provides that:

Whoever attempts to influence the action or decision of any grand or petit juror of any court of the United States upon any issue or matter pending before such juror, or before the jury of which he is a member, or pertaining to his duties, by writing or sending to him any written communication, in relation to such issue or matter, shall be fined under this title or imprisoned not more than six months, or both. Nothing in this section shall be construed to prohibit the communication of a request to appear before the grand jury.

18 U.S.C. § 1504.

. . .

Based upon the plain meaning of the text of 18 U.S.C. § 1504, reinforced by relevant judicial interpretations and the doctrine of constitutional avoidance, the Court holds that a person violates the statute only when he knowingly attempts to influence the action or decision of a juror upon an issue or matter pending before that juror or pertaining to that juror’s duties by means of written communication made in relation to a specific case pending before that juror or in relation to a point in dispute between the parties before that juror.

. . .

Because the Indictment does not allege that Heicklen attempted to influence a juror through a written communication made in relation to a specific case before a juror or in relation to a point in dispute before a juror, the Court finds that the Indictment fails to state all of the elements of the offense described in 18 U.S.C. § 1504 and must be dismissed as legally insufficient.

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Jeff Gamso answers in no uncertain terms the question I posed in the title of my last post:

You cannot . . . turn on your client (your firm’s client is yours for purposes of the ethics rules).  You can’t, that is, fuck your clients.  That’s the job of the cops and prosecutors and the courts.

. . .

There’s what you do in this business and what you don’t.

What you don’t is betray your client (or your firm’s client).

Ever.

It’s the duty of loyalty, and it’s basic.

Except to all those folks who don’t get it.

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E-mails show Mississippi governor’s office urged not to pardon DUI offender

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Houston IP lawyer Stephan Kinsella explains why IP isn’t property:

Cf. this article at techdirt: “Court Says That Outing Closeted Gays Through Mass Infringement Lawsuits Not A Big Deal”

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How have I not seen this site before? Definitely going in the RSS feed, and in the Blogroll. From the About page:

Bad Quakers:
Where Bad Quakers part with good Quakers is in the area of self defense. Quakers tend to be pacifists. And while Bad Quakers appreciate and respect that position, and even agree that was certainly the position Jesus took while on Earth, Bad Quakers are not pacifists. Bad Quakers tend to be armed at all times, and are willing to defend not only themselves but their friends, loved ones, property, and at times even strangers.

More on Bad Quakers:
Bad Quakers embrace the Zero Aggression Principle or ZAP.

Bad Quakers recognize the State as an entity that exists by the use of aggression, lies, and theft. Therefore the Bad Quaker rejects the State as a legitimate form of government. Bad Quakers do not reject government. Bad Quakers realize that government, when entered into and maintained by peaceful voluntary means, can be legitimate. But when government adopts the State as its method of existence, it is no longer legitimate. The Bad Quaker understands that every act of the State, no mater the short term result, will produce evil.

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Henry Van Dyke on the meaning of the Titanic. (H/T ArchAngel Institute)

Also by Van Dyke:

“Heroes of the Titanic”

Honour the brave who sleep
Where the lost “Titanic” lies,
The men who knew what a man must do
When he looks Death in the eyes.

“Women and children first,”–
Ah, strong and tender cry!
The sons whom women had borne and nursed,
Remembered,–and dared to die.

The boats crept off in the dark:
The great ship groaned: and then,–
O stars of the night, who saw that sight,
Bear witness, These were men!

November 9, 1912.

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