People v. State

Glenn Greenwald knocks another one out of the park, but his quoting with approval the following by John Cole gave me pause:

One thing that even the dim bulbs in the media should understand by now is that there is in fact a class war going on, and it is the rich and powerful who are waging it. Anyone who does anything that empowers the little people or that threatens the wealth and power of the plutocracy must be destroyed. There is a reason for these clowns going after Think Progress and unions, just like there is a reason they are targeting Wikileaks and Glenn Greenwald, Planned Parenthood, and Acorn. . . .

Politics makes for strange bedfellows, but I reserve the right to cheer for Wikileaks while maintaining my longstanding contempt for the arch-hypocrisy of Planned Parenthood as well as my indifference to the deserved demise of Acorn.

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In a recent email exchange, one of the country’s foremost and sanest authorities on jury independence / nullification pointed me to the online presence of a student comment by Francis X. Sullivan which I happened to be an editor of prior to its publication in the Wisconsin Law Review in 1999: “The Usurping Octopus of Jurisdictional Authority”: The Legal Theories of the Sovereign Citizen Movement. As I recall, at the time I was perplexed by the article and questioned its practical value, despite Frank’s excellent writing, having never before encountered the bizarre and incoherent theories described in it. Fortunately, the senior editors recognized its value and voted to publish it. I’m glad they did, as I have since run into these theories in the real world and now better appreciate Frank’s excellent and valuable taxonomy of them.

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One of my favorite blawgers criticizes another of my favorite blawgers for Going Too Far. I think they’re both right.

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The trial of the former Pennsylvania judge who allegedly sentenced “Kids-for-Cash,” Mark Ciavarella Jr., is well underway. One of the former judge’s alleged victims was quoted as saying on the eve of his trial, “I hope and pray everything he did, it comes back to him 20 times harder.” Amen.

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Scott Greenfield redeems his recent unwarranted dissing of “anarchy” with this:

It strikes me as fundamentally contrary to the judicial function to demand that a judge comply with precedent that he believes to be unlawful.  It’s not for lack of appreciation of precedent, or respect for appellate authority, but for the ability of a judge at the trial court level to achieve the result he believes to be correct.  To expect judges to do harm in their rulings strikes me as nonsensical, and reduces the judicial function to ministerial.

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Rick Horowitz posts an interesting take on the tension between a criminal defense attorney’s need for his client to tell him the truth about what really happened in order to mount an effective and fully informed defense and the ethical rules prohibiting criminal defense attorneys from knowingly facilitating the presentation of false testimony in court:

I don’t want to hear from you that you are guilty, that you did the deed — at least not if, after telling me all this, you want me to put witnesses, including you, on the stand to testify about how you were in London at the time the Fresno Mini-Mart was robbed.

You have the right to remain silent. When it comes to being a witness against yourself — that is, when it comes to spilling the beans about your guilt — no one, including me, can compel you to do that.

Mark Bennett in response posts an equally interesting comment:

For my part, I would rather have my client tell me the truth and then not testify than lie to me and then testify falsely. But if a client first told me he did the deed, and then told me he didn’t, I wouldn’t automatically assume that the second story was a lie.

And back in his very first post at Simple Justice, Scott Greenfield wrote:

For the purpose of representing a client, I assume that everyone is guilty in order to remove that taint they feel and enable them to speak freely to me about what happened.  This is by far the most important thing they can do to aid me in preparing their defense.  As I frequently tell clients, I don’t want to be the only person in the room who has no clue what really happened.  If a client lies to me to minimize their guilt, they have taken away my most valuable weapon on their behalf:  knowledge.

Updating an earlier story which reported that Indiana University – South Bend “decided to remove Chick-fil-A as a campus vendor after news that a Pennsylvania franchise will be donating food for an event hosted by a known anti-homosexual group,” WSBT News is now reporting that “Chick-Fil-A has not been banned from campus after all,” but that IUSB “has suspended the once-a-week service from Chick-Fil-A pending a review of food service policies.” Somebody needs to “review” the “policies” of the government-paid academic geniuses at IUSB responsible for “banning” or “suspending” Chick-f/Fil-A for such a reason, because they obviously don’t know their First Amendment from a hole in the ground.

Is it just me, or is this just a little too much information, even for the “Facts and Procedural History” of an Indiana Supreme Court opinion: “He intended to rape [Victim], but after exposing her vagina decided against it for fear of contracting a disease. Realizing she could identify him, he cut her throat with a foldable hunting knife.” I suppose the court needed to explain that a rape was intended but didn’t occur and that empathy for his victim isn’t what deterred the defendant from carrying out his purpose, but in this instance I wouldn’t have presented the defendant’s explanation for his behavior as “fact.”

This public infighting among the highest judges of the state to our northwest, who preside in the city where I got my law degree, does my heart good and confirms my biases, as did this fascinating story emanating from the supreme court of the state directly to our north.

We, Not They, Lost Two Great Cops, says Miami criminal defense lawyer Brian Tannebaum. I concur with the sentiment, not only when we lose a cop, but also when we lose a public defender. Or a private criminal defense attorney. Or a 7-11 clerk.

Here in Indiana, via The Indiana Law Blog, “Prosecutors Group Assails Proposal To Cut Prison Sentences.”

Glenn Greenwald says Good Riddance to Joe Lieberman. As The Philadelphia Inquirer’s Will Bunch noted about the odious senator from Connecticutt: “the only war he ever opposed was THE ONLY WAR HE MIGHT ACTUALLY HAVE HAD TO FIGHT IN.”

Patrick of Popehat on Dr. Kermit Gosnell’s “Deplorable and Unsanitary” “baby charnel house” of horrors in Philadelphia. Gosnell and the government that enabled his crimes are only the tip of the iceberg.

Resolved: To better know and observe my own limitations. A man’s got to know his limitations.

I started this blog with the intention of making it about both “the philosophy and practice of law and liberty.” It’s been tilted more towards philosophy than practice, and since after getting my B.A. in philosophy back in 1994 I quickly gave up on my plan to pursue a doctorate in philosophy in favor of a juris doctorate I’m not much more qualified than your average lawyer to speak on philosophical subjects.

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The U.S. State Department has said he is:

“He is not a journalist. He is not a whistleblower. He is a political actor. He has a political agenda,” State Department spokesman P J Crowley told reporters here.

“He is trying to undermine the international system that enables us to cooperate and collaborate with other governments and to work in multilateral settings and on a bilateral basis to help solve regional and international issues,” Crowley said in response to a question.

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Claire Wolfe asks a couple great questions: “Why the hell would anybody want to be free? . . . What One Great Thing can make all the struggle worthwhile?” [Incidentally, Claire Wolfe wrote a 2001 book titled The State vs. The People, which I discovered after I named and started this blog.]

She gets some great answers in the comments. I second this one from Kevin Wilmeth:

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Ken at Popehat yesterday advocated skeptical and critical thinking about leaking in general and Wikileaks in particular, and asking ourselves some tough questions, such as “Do I — should I — believe that the people reviewing and selectively publishing the leaked information are doing so honestly, or are they driven by an agenda? Is someone trying to manipulate me with this leak, and to what end?”

Julian Assange is indeed driven by an agenda, but he’s been quite open about what that agenda is, and the agenda is not as simple as it’s generally been portrayed in the media. At least according to him, he’s not trying to manipulate you with leaks, but rather to manipulate the behavior of authoritarian regimes themselves:

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I took the Center for a Stateless Society‘s Find Your Philosophy Quiz, and here are my scores:

On the Economic Leftist / Economic Rightist spectrum I’m a 74% Economic Leftist.

On the Anarchist / Statist spectrum I’m a 78% Anarchist.

On the Anti-Militarist / Militarist spectrum I’m a 100% Anti-Militarist.

On the Civil Libertarian / Civil Authoritarian spectrum I’m a 70% Civil Libertarian.

And on the Socio-Cultural Liberal / Socio-Cultural Conservative spectrum I’m a 22% Socio-Cultural Liberal. I assume that means I’m actually a 78% Socio-Cultural Conservative. [Update: A commenter below points out that I’m probably more socially liberal than I thought. Ugh!]

The Quiz consists of 106 statements with which one can Strongly Agree, Agree, Disagree, or Strongly Disagree. Here are some of my answers to some of the questions:

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Memo to The Legal Satyriconistas: You’re lawyers. You got class.

I’m still stuck in a rut wherein words seem worthless, while I wait to see whether a certain powerful court will restore or utterly destroy whatever “faith” I might have had in the State’s justice system. (If that seems a little too much about me, I thought it imprudent at this time to make it too much about them.)

Nevertheless, I needed to pipe up and simply say Julian Assange kicks ass, and I hope he keeps kicking ass. I wholeheartedly second what’s been recently written about him by Norm Pattis, Glenn Greenwald, and David Gross. Stark lines are being drawn here, sides are being taken, hearts are being revealed. A lot of people hate Assange’s fucking guts. They think he’s a terrorist and a traitor. I hate their fucking guts. I think they’re terrorists and traitors.

Peter Thiel needs to have his people call Assange’s people.

I occasionally wonder whether by asserting on this blog what I asserted in my last post — that the U.S. Constitution and the entire State resting on it is of No Authority — I put my license to practice law in jeopardy. After all, not that many years ago, before I knew better, and although I don’t remember doing so, I presumably was required as a condition for admission to the practice of law to solemnly swear or affirm that “I will support the Constitution of the United States.” I haven’t researched the question, and doubt there’s any case law on it. If it were to turn out, after a disciplinary proceeding, an adverse state supreme court decision and a petition for writ of certiorari to the U.S. Supreme Court, that I do not in fact have a First Amendment right to express this opinion while continuing to practice law, then so be it. The case would be a fitting end to my legal career, which began with something as important and as defeated. Although I am not aware of any case law on the issue, there is this argument made by Lysander Spooner in his 1835 letter To the Members of the Legislature of Massachusetts:

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I’ve gone out on a limb here on this blog and openly expressed my conviction that the U.S. Constitution and the entire State resting on it is of No Authority. The full argument for this position is found in Lysander Spooner’s No Treason: The Constitution of No Authority (1870), and is encapsulated in the short appendix at the end of that treatise:

Inasmuch as the Constitution was never signed, nor agreed to, by anybody, as a contract, and therefore never bound anybody, and is now binding upon nobody; and is, moreover, such an one as no people can ever hereafter be expected to consent to, except as they may be forced to do so at the point of the bayonet, it is perhaps of no importance what its true legal meaning, as a contract, is. Nevertheless, the writer thinks it proper to say that, in his opinion, the Constitution is no such instrument as it has generally been assumed to be; but that by false interpretations, and naked usurpations, the government has been made in practice a very widely, and almost wholly, different thing from what the Constitution itself purports to authorize. He has heretofore written much, and could write much more, to prove that such is the truth. But whether the Constitution really be one thing, or another, this much is certain — that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.

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From Tyrus Coleman v. State of Indiana, which is currently before the Indiana Supreme Court on transfer:

Sometime in November 2006, Anthony Dye (“Dye”) was robbed by Omar Sharpe (“Sharpe”) and another man. During the robbery, the men took money and Dye‟s gold chain. Because Dye knew that the two men were associated with a recording studio owned by Coleman, he went to Coleman‟s studio, armed with a handgun for protection, to talk to Coleman about the robbery. Although Coleman did not know about the robbery, he apologized to Dye and offered to find out what he could. Coleman was able to recover Dye‟s gold chain from Sharpe and called to arrange a time to return it in December. At some point after retrieving the gold chain from Coleman, Dye found out that Coleman had bonded Sharpe out of jail. Dye called Coleman to express his displeasure with this and to tell him that if Dye found out that Coleman had anything to do with the robbery, “there would be problems for [Coleman],” which Coleman understood as a threat to his life. 2008 Tr.2 at 274.

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In my last post I contended that “the very reason for the existence of the State is to steal from the poor to give to the rich.” Here’s some support for that proposition:

From Thomas Paine’s Agrarian Justice:

[i04] Liberty and Property are words expressing all those of our possessions which are not of an intellectual nature. There are two kinds of property. Firstly, natural property, or that which comes to us from the Creator of the universe — such as the earth,air, water. Secondly, artificial or acquired property — the invention of men.

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I don’t want the State to steal from the rich to give to the poor. Rather, I want the State to stop stealing from the poor to give to the rich. And so long as the State insists on stealing, I’d rather it steal from the rich instead of the poor, which in theory could go a long way towards correcting the inequities the State itself has created over centuries of plunder. The taxation of below-average income, for example, is a far greater evil than the taxation of inherited wealth. But because the very reason for the existence of the State is to steal from the poor to give to the rich, it is pure folly to “hope” “we can” “change” the essential nature of Our Enemy, and better to be an Outlaw.

It’s unfortunate that when many people hear the word “libertarian” they automatically think of Ayn Rand, that batshit crazy apologist for rape and rapacious capitalism, even though Ayn Rand herself called libertarians a “monstrous, disgusting bunch of people” who “plagiarize my ideas when that fits their purpose.”

Libertarianism predates Ayn Rand. It is, as the word suggests, simply the perennial political philosophy of all who love liberty.

Deregulating Wall Street should be one of the very last priorities of any coherent and consistent libertarianism. But alas, so long as it’s the State doing the regulating, foxes will be guarding the hen house.

I thought I shared Mike Cernovich’s disdain for Jon Stewart’s Rally to Restore Sanity, but after reading the takedown of the Rally by one Mark Ames that Mike approvingly linked to in his latest post I realize the grounds for our disdain are quite different.

I guess I’d bought into the common wisdom that Stewart is in fact a devoutly moderate Democrat and that his Rally was indeed timed a few days before The Election in hopes of influencing said Election and thereby making the world a “saner” (i.e., more moderately Democratic) place. In short, my gripe with the Rally was that I assumed Stewart was serious, albeit in a way he supposed befitted his historic role as Court Jester. In the past I’d admired Stewart precisely because of his role as Court Jester (which, unadulterated, indeed serves an important public purpose), and so long as he stayed true to that role was willing to overlook the fact that he probably had genuinely-held political opinions with which I disagreed. My objection to the Rally was the injection of seriousness into Stewart’s funny business.

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Highlights from an article by Jeff MacGregor at ESPN about the death of Notre Dame student Declan Sullivan:

Let’s all take this election week as an occasion to celebrate our obsessions and delusions. To map our national madness and to make plain our insanity. To point out our perfect hypocrisy and remind one another that what we say and what we think and what we do might mean the very opposite of what we do and what we think and what we say.

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I haven’t had much to say on the blog lately, for reasons explained here. I’m still waiting on our state supreme court, including a brand new justice sworn in a couple weeks ago, to decide a former client’s fate. For better or for worst, it will be a defining moment in my future career as a lawyer or as a former lawyer. My wife dreamed the other night that their decision will come down this week. She said it was a good dream.

Breast Cancer Awareness Month is finally coming to a close. All that the annual fanfare signifies to me is mind-boggling hypocrisy.

Jon Stewart and Stephen Colbert have jumped the shark and squandered their credibility. They used to be funny and to provide a valuable public service.

Tuesday is the Day of the Dead. Don’t forget to vote for your favorite blood-sucking vampires and brain-eating zombies. If nobody votes, civilization as we know it would cease to exist.

Today’s my 41st birthday, my Facebook friends have graciously reminded me. Some of my other friends will try to take my money tonight in our weekly poker game.

Another reminder of my mortality is today’s news of the passing of a fellow member of the bar, albeit one with whom I had only the briefest of contact. James Tsoutsouris was from nearby (though not neighboring) Porter County, in which I’ve handled only a couple cases. He was “opposing” counsel in a divorce in which we were able to work out an agreement for our clients, so all of our contact was over the phone or by mail. Turns out he was also the county’s chief public defender since creating the office in 1970, a year after I was born.

Tsoutsouris also served as defense attorney in the 1991 high profile trial of Ronald Harris, who was convicted of the murder of a Portage gasoline station attendant as an accomplice of “shotgun killer” Christopher Peterson.

While disappointed with the outcome of that case, Tsoutsouris said at the time he refused to believe the fact that Harris is black and was tried by an all-white jury was a factor.

“If I believe that, I’d quit my practice today,” he said. “If I can no longer believe in the system, I’ll go sell cars.”

Such faith appears conducive to longevity in the law. Like Mr. Tsoutsouris, in my relatively short time in the trenches I’ve defended a black client and been “disappointed” by the all-white jury that convicted him. Unlike Mr. Tsoutsouris, I don’t share the faith that sustained him.

I haven’t posted in a while, and probably won’t again for some time. Whatever excess care I might have spent on blogging is now absorbed by the fact that our state supreme court a few weeks ago granted transfer in a case in which I’d represented the defendant at trial. By doing so, they vacated a court of appeals’ opinion which, on the grounds of collateral estoppel, had reversed my former client’s conviction and 45 year sentence for attempted murder and would have set him free. Oral argument was held last Thursday.

The former client is innocent, and never should have been convicted in the first place. “No person in this state shall be placed in legal jeopardy of any kind whatsoever for protecting the person or a third person by reasonable means necessary.” Indiana Code section 35-41-3-2.

I am praying to God for Justice.

¹Praise the LORD!
Praise the LORD, O my soul!
²I will praise the LORD while I live;
I will sing praises to my God while I have my being.
³Do not trust in princes,
In mortal man, in whom there is no salvation.
⁴His spirit departs, he returns to the earth;
In that very day his thoughts perish.
⁵How blessed is he whose help is the God of Jacob,
Whose hope is in the LORD his God,
⁶Who made heaven and earth,
The sea and all that is in them;
Who keeps faith forever;
⁷Who executes justice for the oppressed;
Who gives food to the hungry
The LORD sets the prisoners free.
⁸The LORD opens the eyes of the blind;
The LORD raises up those who are bowed down;
The LORD loves the righteous;
⁹The LORD protects the strangers;
He supports the fatherless and the widow,
But He thwarts the way of the wicked.
¹⁰The LORD will reign forever,
Your God, O Zion, to all generations.
Praise the LORD!

Psalm 146

LAW is not a “rule of civil conduct prescribed by the supreme power of a state.” Rather, Law is the “rule, principle, obligation or requirement of natural justice.” Law is “the organization of the natural right of lawful defense. It is the substitution of a common force for individual forces. And this common force is to do only what the individual forces have a natural and lawful right to do: to protect persons, liberties, and properties; to maintain the right of each, and to cause justice to reign over us all.” “Law is organized justice.”

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Last week, just over the border in Niles, Michigan, a 14-year old boy, Dakotah Eliason, was tried as an adult for shooting and killing his 69-year old grandfather as he slept. According to WSBT News, “Dakotah told police he had no explanation for shooting his grandfather, with whom he had a good relationship and who, according to the teenager, had never hurt him.”

On Thursday the jury convicted him of first degree – i.e. premeditated – murder. Whether Dakotah shot and killed his grandfather was apparently not disputed at trial. Rather, the issue was whether he should be convicted of first degree murder, which carries with it a mandatory sentence of life without parole, or second degree murder, which would have allowed for the possibility of parole:

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In the course of the most recent inter-blawg squabble over what role, if any, the pursuit of Justice plays in the job of the criminal defense attorney, Norm Pattis and Mark Bennett perceived incongruity in someone who writes a blog called “People v. State” implying that some defendants might actually deserve what the State is trying to do to them and that making things difficult for the State is not its own justification. (I implied in one comment, consistently with the common observation of criminal defense attorneys that the majority of their clients have done something close to what they’re (more…)

I have a distant memory from when I was about four years old. I told my grandma, with whom I was living, that I wanted to draw a picture of my dad. So I drew him, though I didn’t really remember what he looked like. I drew the bars in front of him. I drew the “cops” standing guard outside his cage. I drew pig snouts on the cops. I showed the picture to my grandma. I remember her not being pleased, as I thought she would be. She said something about my dad having done wrong. I imagine she was troubled by my nascent contempt for “the law.” She didn’t want her grandson to wind up where her son was. All I knew in my four-year-old mind was that some people had locked my dad up in a cage and wouldn’t let him go. That’s why I couldn’t see him. Who were these people?

Maybe it would be better that 2 million guilty persons escape, than that 2 million guilty persons suffer what the State calls Justice.

My latest effort to clarify and simplify what I’ve been trying to say is here, in a comment on a post by Norm Pattis:

When I link Justice with the role of the criminal defense attorney I primarily have in mind our war against the injustices of the State. The State is the largest criminal organization on the planet. Its crimes dwarf those committed by private persons. But yes, private persons commit real crimes and real injustices too. I hate crimes committed by private persons for the same reasons I hate crimes committed by the State. Nevertheless, it is Just that we defend people accused of crimes regardless of their guilt or innocence because . . . “it is better for ten guilty men to be set free than for one innocent person to be convicted.”

The conviction of the innocent is a crime if ever there was one, and I suspect it occurs more frequently than the acquittal of the guilty.

Why do I think it’s important to link Justice with the role of the criminal defense attorney? Because to say “we defend” says nothing. It’s a tautology. We are “crime-fighters.” Maybe by saying so we’ll get more respect, not for our own sakes, but for the sake of a freer society.

It appears that before I address the subject of the title of this post it’s advisable to say something in support of my right to even weigh in on such a weighty topic. There’s a misconception out there that I’m a crazy kid. Crazy is in the eye of the beholder, but, alas, a kid I’m not. This Michaelmas I’ll be forty-one years old. Sure, I’ve only been licensed to practice law since 1999, and I’ve only been regularly practicing criminal law for a couple years. But when I’ve locked horns with self-styled real criminal defense lawyers (“RCDLs”) it’s not been over the best way to try a case. Rather, it’s been over more philosophical matters.

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Mark Bennett, riffing off a post Norm Pattis wrote about Gerry Spence’s claim that he had never lost a criminal case, muses:

I wonder: what if a criminal defense lawyer took only cases that she could win?

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I think she’s got a case.

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A lot of people say they hate lawyers. I’ve never been a lawyer’s client or a party to a lawsuit and had to deal with one in that role, so I’m not sure why this is. I assume the haters have their reasons, but I wonder whether their hatred isn’t misdirected. Might they be making scapegoats of mere peons? Might their real gripe be with the legal system itself? Granted, the whole legal system is made up of people who went to law school, but why single out for special scorn those of us who labor at its lowest rung? We’re all responsible for our crappy system, but some of us are more responsible for it than others.

It wears on a person to stand in another’s shoes as his attorney while he gets screwed over by the “system” (scare quotes because there is no “system” apart from the people who make it up). And then to stand in another’s as he gets screwed over, and another’s. The client stands aghast, and how can I, as an “officer of the court,” explain or defend what’s happened? I can’t. You’ll just have to take my word for it when I say these people got screwed, and that it wasn’t just a matter of a close call not going our way. I’m not completely insane. I know when an argument has gone unanswered. It would be bearable if it was simply a matter of a close call not going our way, or if the “blown calls” were isolated incidents, or if there was an affordable way to get a timely and truly objective second opinion. What’s unbearable, and a motivation killer, is the realization that being right doesn’t necessarily matter, even when it’s important. If being right doesn’t matter, then we are all full of hot air, as the lawyer-haters charge.

UPDATE:

Norm Pattis offered a “Word of Encouragement” at his blog in response to this post. I tried to comment on his post, but my comment was a little too long-winded to be accepted as a comment, so I’m posting it here:

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Via H. J. Knowles at her “With Irresistible Clearness” blog, the SCOTUS’ majority opinion by Alito in its recent Second Amendment decision in McDonald v. Chicago and the concurring opinion by Thomas both cite possibly the greatest lawyer who’s ever lived, 19th century abolitionist and anarchist Lysander Spooner. (Scalia had likewise cited Spooner in Heller v. District of Columbia.)

At page 22 of Alito’s opinion in McDonald he writes:

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