People v. State

I recently came across this article at the Center for a Stateless Society by Anna Morgenstern, with which I generally agree. I particularly agree with the following explication of terms from the article:

So why the pretense? Why go through this ruse of “public” and “private?” Well that’s it. That’s the state. The state IS the ruse. The state … is a social fiction. It is the myth of legitimacy. This myth is the thin black line that separates “the government” and (more…)

At one table in the Marshall County court was a homeless man with an apparent alcohol problem, representing himself, pleading for the life of his best friend, a wolf hybrid named Shyrkee. At the other table was the attorney for the City of Plymouth, who was asking the court to have Shyrkee euthanized as a vicious animal. The only witness called by the homeless man to testify on Shyrkee’s behalf was the homeless man himself. Testifying for the City were police and animal control officers. At the close of evidence, the city attorney argued: “Someone is going to get hurt bad. . . . On behalf of the citizens of Plymouth, the evidence is overwhelming — they are in danger.”

After weighing the evidence and the arguments of the parties, Judge Robert Bowen ruled . . . for Shyrkee:

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I used to play poker with this 26-year-old college dropout at a local neighborhood bar. His $1 million+ lifetime earnings as a professional poker player shames any pride I might have had in my own amateurish $18k- payday. But playing poker contributes nothing to society, you remonstrate? Fair enough. But consider:

Persistent unemployment is not a problem because employees and employers are “mismatched,” one of those callous Management euphemisms that will one day take its rightful place alongside such Third-Reichisms as “transport.” It’s a problem because our economy is a castle made of bullshit built on a bullshit foundation foundering in a swamp of bullshit. It is not an absence of skills and abilities that curtails and limits the prospects of gainful labor; it is an absence of any industry requiring any labor. Yes, it was lovely that we had a decade or two in which fake jobs full of people pimping their fake skills abounded, but that wave crested and rolled back.

I struggled in this post earlier today with my juxtaposition of the (hypothetical) criminal defense attorney who takes special pride in the acquittal of a “guilty” client and the prosecutor who takes special pride in the conviction of an innocent defendant (e.g., including, and perhaps most typically, a defendant who the prosecutor believes is guilty of something but not the offense the prosecutor charges him with). Even though it was an ancillary part of the post, I went back and forth, editing the juxtaposition in and out, and finally left it in, because it seems the two cases do share and illuminate a common psychological denominator: namely, if as a prosecutor I can get an innocent man convicted, or if as a defense lawyer I can get a client who was caught red-handed acquitted, then I must be a damn fine attorney.

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“Impossible,” you say? Think again, ye of little faith. And now that the folly of your doubt has been revealed to you, don’t go questioning the rest of the story, either.

There is no doubt in my mind that some prosecutors really believe and own what’s expressed in the title of this post. (Indeed, just today a former deputy prosecutor told me this was a favorite saying of his former boss.) Sort of like a criminal defense attorney who takes extra special pride in the acquittal of a guilty client, it’s all about ego for prosecutors of this ilk. Such prosecutors are themselves psychopaths and criminals of the lowest sort. Like a gung ho professional soldier who loves the killing and destruction of war and doesn’t give a damn about the justice of his cause, they have found a socially-approved outlet for their homicidal impulses. (But unlike the soldier, a prosecutor need not risk being shot at in order to kill. He may be a perfect coward.) How well they must think of themselves, as they self-righteously strut before the jury on behalf of “the State.” I have every confidence that in the world to come they will get what’s coming to them, that every minute of undeserved suffering they’ve visited upon others will be visited upon them. I hope they think of this in their dying moments. How sure will they be then that their works were good? In the meantime, I can only pray that their deep-seated perversion manifests itself in a way that leads to public disgrace and the cessation of their crimes. I have to assume many of them are secret shoplifters, closet consumers of child pornography, sexual harassers, etc.

In other news, this week an Elkhart County jury convicted a black man of attempted murder for chasing down and shooting another man who moments earlier shot and killed his brother.

I’m burning a bridge today. After I posted this comment on Scott Greenfield’s post today about the Slackoisie, Scott posted this response to my comment. Since Scott’s response, among other things, misrepresented a previous discussion we’d had, I replied with another comment, which Scott has since deleted from the comment thread. Scott then sent me the following email:

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Love him or hate him, or love him and hate him, there’s no denying that Scott H. Greenfield at Simple Justice has contributed more substance to the criminal defense practical blawgosphere than any other individual. (I would not have hesitated to use the present tense “contributes,” except that an argument could be made that in the substance department Jeff Gamso in the first year of his blawg’s existence has been giving Scott a run for his money. But Simple Justice has been around since February 13, 2007 — although, interestingly, beginning with a post seemingly addressed to potential clients.) Scott and I have had our issues. See, e.g., here, here?, here, here and here. But even if you’re one of those who believe it’s advisable in reading Scott’s blawg to separate the wheat from the chaff, there’s still so much wheat there that Scott deserves a healthy measure of gratitude from those of us who regularly load up on the carbohydrates he dishes out on a daily basis.

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Michael, by Robert Service

“There’s something in your face, Michael, I’ve seen it all the day;
There’s something quare that wasn’t there when first ye wint away. . . .”

“It’s just the Army life, mother, the drill, the left and right,
That puts the stiffinin’ in yer spine and locks yer jaw up tight. . . .”

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UPDATE AND CORRECTION: After further investigation, it appears, counter-intuitively, that marijuana and THC are actually listed as Schedule I controlled substances under Indiana Code sections 35-48-2-4(d)(22) and 35-48-2-4(d)(31), even though dealing in a Schedule I controlled substance is ordinarily a Class B felony (i.e. 6 to 20 years) while dealing in marijuana is ordinarily only a Class A misdemeanor (i.e. 0 to 1 year). This would certainly seem to add teeth to the St. Joseph County Prosecutor’s argument that Mr. Smiley et al. qualify as controlled substance analogs and that selling them could be prosecuted as a Class B or Class A felony, even though it appears that the active ingredient in Mr. Smiley et al. is indeed (or is supposed to be) a synthetic analog of THC (i.e. marijuana) rather than of some other Schedule I controlled substance, the possession or sale of which is generally treated far more harshly by the law than the possession or sale of marijuana. [Again, nothing in this post or on this blog should be construed as legal advice.]

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In my last criminal jury trial, I thought quite a few things went right during voir dire (i.e. jury selection). One was towards the very end, when a gentleman ultimately selected as an alternate juror matter-of-factly stated, in response to being asked by me whether he would hold it against my client if he didn’t testify, “He has nothing to prove.” I had spent many words wrangling (though trying not to “argue”) with many prospective jurors on this point. Striking jurors for cause on this basis had started to get very old, and a little disheartening. This gentleman in the space of five words had succinctly said all I had tried to say on this issue over the previous couple hours, and all there was to say. Maybe I’ll try to begin my next voir dire with the gift this juror gave me and my client. You can bet I thanked him for it, with feeling: “Thank you, sir.” The fact that he remained an alternate throughout the trial and was therefore not allowed to (more…)

On the recommendation of B. W. Barnett in this post at Liberty and Justice for Y’All, I’ve been reading And the Sea Will Tell by Vincent Bugliosi. Bugliosi, of course, is the famed prosecutor of Charles Manson et al., but in this book he describes his defense of a client charged with aiding and abetting her lover in the murder of another couple on Palmyra, a deserted atoll in the Pacific, in 1974. Not to spoil the ending (which I haven’t actually reached yet), but Bugliosi’s client was acquitted, while her lover, Buck Walker, was convicted in a separate trial. Walker (who now goes by the (more…)

Gerry Spence claims on his website to have “never lost a criminal case either as a prosecutor or a defense attorney.” Of course, there was the little matter of the criminal case he prosecuted against Ernest Newton, described by Spence in his autobiography The Making of a Country Lawyer at page 329. The jury acquitted Mr. Newton of ten counts but did convict him of the eleventh. However, the appellate court overturned even that count, in what our hero implied was a “frivolous, flighty, featherbrained decision[] clothed in high-sounding language,” on the grounds that the trial court didn’t have (more…)

First, I’m keenly aware that just about everybody who’s anybody in the practical blawgosphere has expressed disdain for lawyer marketing in general. I share those sentiments to a large extent, and certainly aspire to reach the point, like these luminaries of the practical blawgosphere, where my practice is fueled solely by word-of-mouth and referrals from satisfied customers. But I’m not there yet, and so in the meantime feel like I should take some modest steps to let people in my community know that I exist. Hence, I’m in the Yellow Pages, both in print and online. And, more non-traditionally, I’m even on a few bus stop benches, and on a couple taxis in the fleet owned by an old high school friend. (more…)

If you are a witness in a pending criminal case and you receive (after the charges have been filed) a subpoena from the prosecutor purporting to require your presence not only at the trial or at a deposition but at a “pre-trial conference” or similar pow-wow with the prosecutor, be advised that the part of the subpoena purporting to require your presence at a pre-trial conference is complete and utter bullshit (at least in Indiana and Kentucky). The prosecutor is himself breaking the law by issuing such a subpoena, and in his hypocritical zeal to incarcerate the defendant is relying on your ignorance of the law and the apparent authority of his office in order to secure an unfair advantage over the defendant at trial. If you receive such a subpoena, please notify the defendant’s attorney immediately. (more…)

. . . was the verdict yesterday in an Elkhart County trial in which I represented the defendant. The jury took all of thirty minutes to deliberate, twenty-five of which I assume were for the sake of appearances. I had tried my damnedest before the trial to get the State to drop the charges, on the grounds that their case was crap. Meanwhile my client sat in jail for almost eight months awaiting trial, since his family couldn’t afford the bond for a Class B felony. (I had made a couple Criminal Rule 4 Motions for the defendant to be released on his own recognizance, to no avail.) After the verdict I went in the jury room, along with the judge and the two deputy prosecutors who’d tried the case, for the traditional post-game analysis. One of the jurors indicated that many of them wondered out loud during their brief deliberations why they were even there. The foreman said the trial was not what he expected, and that he would (more…)

The Indiana Court of Appeals today reversed the attempted murder conviction and 45-year sentence of an innocent defendant I represented at trial, holding that the trial court should have granted the motion to dismiss by reason of collateral estoppel I filed on his behalf.

Via the LewRockwell.com Blog:

George Washington . . . was a Southern planter who owned and relied on slaves. Washington punished his slaves by whipping or selling them, divided their families so they would work more efficiently, and provided them with as little means as tolerable. He also raffled off the slaves of those bankrupt slaveholders who owed him money. Washington’s most gruesome act as a (more…)

In this instance, I find it prudent to follow the advice given to Thumper by his father: “If you can’t say something nice, don’t say nothing at all.”

Instead, I’ll highlight and highly recommend this recent (but pre-Stack) post by David Gross at The Picket Line (who incidentally practices and advocates a response to the IRS different than Stack’s), in which he quotes these words by Henry David Thoreau:

It galls me to listen to the remarks of craven-hearted neighbors who speak disparagingly of [John] Brown (more…)

In my last post I held up Lysander Spooner (1808-1887) as the historical figure who most exemplifies my own highest aspirations as a lawyer: to stand up for other people’s natural rights as well as my own, without undue regard for personal welfare, in the teeth of the moneyed establishment, popular prejudice, and politician-made “law.”

Who today best exemplifies this ideal? Not Gerry Spence. IMHO, it’s J. Tony Serra, high-powered criminal defense attorney, pauper, scofflaw, and ex-con.

I would be hard-pressed to name another man in all of human history whose words and deeds better embody my own ideals as a lawyer and a human being than Lysander Spooner. He was born on today’s date in 1808. Georgetown law professor and Volokh Conspirator Randy Barnett, who owns and operates lysanderspooner.org, offers his birthday tribute here and here.

Read if you haven’t already Spooner’s An Essay on the Trial by Jury, or at least the first chapter, titled “The Right of Juries to Judge the Justice of the Laws.” The simple restoration it advocates would potentially by itself be sufficient to bring to our legal and political system the legitimacy it now so tyrannically lacks. Cf. John Hasnas’ essay The Depoliticization of Law.

Wise words from St. Joseph Superior Court Chief Judge Michael Scopelitis, as quoted in this South Bend Tribune story questioning whether the legal system is tough enough, after a drunk driver with multiple DUIs on his record recently caused the deaths of a local police officer and his K-9.

From his Letter from Birmingham Jail (April 16, 1963):

You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court’s decision of 1954 outlawing segregation in the public schools, at first glance it may seem rather paradoxical for us consciously to break laws. One may want to ask: “How can you advocate breaking (more…)

In a comment to my post criticizing Scalia’s religious justification for the death penalty, a gentleman named Dudley Sharp posted links to a series of intelligent articles he’s written on the death penalty. Of particular note is the article titled The Death Penalty: Neither Hatred nor Revenge and the article titled Sister Helen Prejean & the death penalty: A Critical Review. Sharp’s observations in the latter article about the events depicted in the movie Dead Man Walking are similar to observations I myself have made. I’ve previously expressed ambivalence about the death penalty rather than a (more…)

I haven’t had occasion to write here yet about the recent string of crazy in Maricopa County, Arizona sprayed by its Sheriff-King, Crazy Joe. It all started with the pilfering of a document from a criminal defense attorney’s file by one of Crazy Joe’s deputies, Adam Stoddard, as caught on camera in this video.

This video deserves to be featured on an upcoming episode of “World’s Dumbest Criminals.” Yet unbelievably, Crazy Joe stood by his man, insisting Stoddard was just doing his job and ensuring courtroom “security.” (more…)

Under Indiana Code section 35-42-2-1.3(b)(2), a person who knowingly or intentionally touches his current or former spouse (or baby momma, or similarly related person) in a rude, insolent or angry manner resulting in bodily injury, and does so in the physical presence of a child less than 16 years old, commits a Class D felony Domestic Battery.

On the other hand, under Indiana Code section 35-42-2-1(a)(2)(M), a person 18 or older who knowingly or intentionally touches his current or former spouse (or other family or household member) in a rude, insolent or angry manner resulting in bodily injury, and does so in the physical presence of a child less than 16 years old, also commits a Class D felony Battery. But it’s not a Domestic Battery. (more…)

Wendy McElroy earlier this week posted two blog posts both inspired by Henry David Thoreau — Civil Disobedience and the Business of Living, and Agents of the State Are Morally Responsible for Their Actions. They’re related to each other and I highly recommend reading both, but Wendy’s conclusion in the former particularly speaks to my condition:

Thoreau’s famous act of civil disobedience — the refusal to pay a tax that supported war — was not the act of a determined political dissident. His one night in jail came about only because the state literally knocked on his front door in the form of a tax collector. At that point, Thoreau had to make a choice; he believed the Mexican-American War was immoral, violating both decency and rights. As long as he was not forced to participate in the ‘evil’, however, Thoreau seemed content to go about the business of living. (more…)

The quote in the title of this post is from this 2006 article by the then Chair of the Colorado Bar Association Criminal Law Section, Lenny Frieling. I cite the article because it reaches essentially the same conclusion as this blog post by a baby lawyer, which Scott Greenfield mocked here on a blog he calls “Simple Justice.” Scott’s view, you see, is that the duty of a criminal defense attorney is “not to ‘do justice,’ but to defend.” Scott goes so far as to proclaim, here and here, that anybody who doesn’t parrot his view in all its simplicity (me, for instance) shouldn’t be a criminal defense attorney.

Frieling, by contrast, takes a less dogmatic and hardheaded approach: “There also are many experienced and wise defense attorneys who would completely disagree with everything I’m saying. Sometimes I disagree with what I’m saying. I respectfully suggest that my view is helpful and at least should be considered in determining the role of a defense attorney.”

Scott Greenfield takes a newbie lawyer to task for taking this question (posed to criminal defense attorneys at cocktail parties all the time) seriously and for offering an answer that Scott believes betrays a fundamental misunderstanding of what it means to be a criminal defense lawyer. The newbie opines that “an attorney’s ultimate goal must be to seek justice and not to simply win.” Scott explains that, to the contrary,

The fundamental duty of a criminal defense lawyer is to zealously represent his client within the bounds of the law. Our duty is not to “do justice,” but to defend.  In contrast, the duty of a prosecutor is not to prosecute, but to “do justice.”  The duties are not opposite or co-terminus. (more…)

Child custody determinations can mean as much if not more to the parties involved as criminal proceedings, and yet they’re made not by a jury but by a single judge, who may or may not be “Honorable.” This mere man — no better on average than other men — sits in judgment over a broken family and by his decree parses out the parents’ rights to their children — rights which are natural and fundamental and more real than the fictional authority which an unthinking and complacent populace concedes to the government and its functionaries. In some counties, it’s commonly known, at least among attorneys, that child custody decisions in contested divorces have as much or more to do with who knows who as they do with the best interests of the children. With the stakes (including the financial stakes) so high and the results so amenable to influence and manipulation, is it any wonder that corruption, either the (more…)