I hope Matt Brown, the author of Tempe Criminal Defense, will in honor of the occasion of being nominated to the ABA’s beauty pageant take the opportunity to clean up some of the broken links in his Blogroll (if not remove a couple of the less respectable ones).

The post Vote for Tempe Criminal Defense in the 2011 ABA Journal Blawg 100 first appeared on People v. State.

But one of the greatest lawyers who’ve ever lived, Lysander Spooner, never “practiced” much law. One of the greatest lawyers alive today, Tony Serra, confessed to his biographer that he regarded “going into law” as for him “a fall from grace.”

I suspect being a lawyer is like being a priest. The priest can repudiate the Church. He can be excommunicated by the Church. But he’s still a priest.

(H/T Matt Brown)

The post I would have baked bread for a living. first appeared on People v. State.

But you know who really excels at illuminating the philosophy and practice of law and liberty? Matt Brown, relative to whom I’m a piker. I want to highlight here a couple paragraphs from his latest post.

First:

When you judge evidence as it’s presented, you’re seeing things through a filter. You’re relying on your preexisting opinions, and those are often opinions the judge and jurors do not share. You can’t read minds, so the best way to convince your audience is to build your position from nothing. When every person experiences the birth and growth of the point you’re trying to make, that’s when you have your best chance of getting them to agree. Inserting your judgments only dilutes your effectiveness.

This struck me as in line with my citation of Vincent Bugliosi’s account of his successful defense of a murder defendant in And the Sea Will Tell in countering what I perceived as Mark Bennett’s unfair assessment of John Regan’s assertion that the only reliable way to win for a criminal defendant is to have evidence devastating to the prosecution’s case and to downplay its significance until closing argument. (I acknowledge, however, that it’s not entirely clear what John Regan meant, as I later noted in a comment on his blog.)

Second:

In the moment, what you notice may be better than what you were seeking. Even if it isn’t, at least you noticed it. You certainly aren’t missing anything. Your perspective is likely closer to that of the people you’re trying to convince, and your presentation isn’t going to come off sounding like biased ramblings from a nut job. When judgment is necessary, like when you hear something objectionable, you’ll be quicker to realize it and voice your position. There’s no drawback.

Having been recently called a “nut job” myself, this paragraph in Matt’s post also made my ears perk up. Take, for example, my recent strongly-stated counter-intuitive affirmation that “Prosecutors should never lose,” because they have no business prosecuting anything other than “slam-dunk” cases (since the requirement of “proof beyond a reasonable doubt” requires nothing less), and every loss is an indictment of either their judgment or their competence. I stand by the proposition that “Prosecutors should almost never lose.” After all, Spence and Bugliosi managed that feat in their respective prosecutorial careers, and if not every prosecutor can be a Spence or a Bugliosi, they can at least be expected to win at least, say, 90% of their trials. If they’re not, and assuming they’re competent, they’re probably convicting a lot of innocent defendants in the trials that they do win.

On the other hand, another former prosecutor whose judgment I respect, Ken at Popehat, has suggested that the standard I’ve proposed is probably “unworkable.” Imagine a hypothetical murder case in which the evidence demonstrates a 95% likelihood that the accused is guilty. But damn — that leaves a 5% chance that the accused is innocent, and faces life in prison for something he didn’t do. Furthermore, sending the accused, a possibly innocent man, to prison for the rest of his life isn’t going to bring the murder victim back. Nevertheless, it’s probably too much to expect the prosecutor, faced with the victim’s family, to dismiss the case against the accused based on a 5% likelihood that he is innocent. And pity the poor jury. This is a case that indeed could go either way.

This not-so-hypothetical scenario highlights a fundamental problem with the extant criminal justice system: the jury is expected to evaluate whether the 5% likelihood that the defendant is innocent amounts to “reasonable” doubt as to his guilt, all the while being kept in ignorance of and having no say in the consequences for the defendant if it determines that the 5% likelihood that the defendant is innocent doesn’t amount to “reasonable” doubt. Would it be “reasonable” for a person to take a bet in which he has a 95% chance of winning $100 and a 5% chance of losing $500? Yes. Would it be “reasonable” for a person to take a bet in which he has a 95% chance of winning $100 and a 5% chance of losing $5,000? No. The reasonableness of the bet depends entirely on the consequences of “losing,” or being wrong.

In a just criminal justice system the jury would be empowered to limit the consequences of its own possible error, and thereby to ensure, or create, at least by its own lights, the “reasonableness” of its own verdict in light of whatever residual doubt it might have as to the defendant’s “guilt.” In the above hypothetical, for example, where the jury is only 95% confident that the defendant is guilty of murder, it might impose a 10 year sentence (presumably determined by the maximum number of years the jurors were able unanimously to agree upon). Such a decision might have little to do with “punishing” the defendant, who after all could be innocent (although it’s likely that the decision would have been influenced by regard for the feelings of the victim’s family), and more to do with public safety, which is arguably the primary purpose of the criminal justice system. In a just criminal justice system this empowerment of the jury would extend beyond correcting for any residual doubt as to whether the defendant in fact committed the crime with which he’s charged to also correcting for any residual doubt as to the defendant’s culpability and future dangerousness to society, independently of whether he in fact committed the crime charged.

The State, of course, is the principal impediment to the evolution of a just criminal justice “system.” As Darian Worden writes today at the Center for a Stateless Society, in a post titled “Justice Without the State”:

I’m always happy to see anarchism being discussed honestly in public forums. So I was pleased to see E.D. Kain’s article at Forbes, Criminal Justice in a Stateless Society (21 Aug 2011).

Kain describes his reservations about anarchism and wonders “what would replace our criminal justice system in a stateless society?” As an anarchist — one who believes in maximizing individual liberty and wants no person to rule over another — I’d answer hopefully nothing. The criminal justice system is in fact criminal. The outrages committed by the criminal justice system are consequences of the power relations fostered by the state.

Sure, some states act less destructively than others, and some politicians are less tyrannical than others, but state power is ultimately limited by what those in charge think they can get away with. Politicians, economic elites, bureaucrats, and enforcers come to believe in their authority and believe that other people should respect their authority. For those who don’t, there are innovative and profitable ways to subdue them so they can be taken in chains to a cage.

The criminal enterprises of the state should not be replaced, but instead displaced, by cooperative alternatives. This may seem like nitpicking, but to me it emphasizes the differences between authoritarian and anarchic functions. Authoritarian systems command obedience to those on top through force, threats, denial of alternatives, and encouragement of conformity. This is their primary function, and anarchists do not intend to create anything to replicate this function.

Instead, anarchists tend to believe in the ability of people to establish rules as equals, to work out consensus and compromises, and use violence only as a last resort. This is how social relations work on a basis of mutual benefit rather than power politics.

This is not the place to fully theorize about anarchist justice systems or fully describe precedents, but I’ll scratch the surface. A precedent Gary Chartier mentions in his excellent book The Conscience of an Anarchist is the merchant’s law of Medieval Europe. Courts established voluntarily within the merchant community made decisions based on standards that had evolved over time. Another precedent is found in Terry Anderson and P.J. Hill’s work on how American settlers handled disputes in the Western frontier, which was not nearly as violent as Hollywood would have you believe.

Of course, these are precedents, not examples of anarchy, but the fact that they were able to arise from under situations of government-approved violence might make them more remarkable.

In general, people tend to prefer to not have much violence in their daily lives. I’m not talking about movie violence or even fighting sports, but violence that is an active danger to life or impediment to living. Where is there pervasive violence in today’s world? Usually at the bottom end of power imbalances.

In powerful countries, it’s where the least powerful people live that drug wars are fought most vigorously and police most become an occupying army intent on scoring points for the precinct’s statistics. In countries where most people have few options, they are more likely to risk everything for messiahs of violence or see life as a cheap expenditure. Oppression breeds further crime.

Where people have the opportunity, they agree on rules and expectations pretty frequently and set up mechanisms for dealing with rule breakers. If there is a demand for something, people will find a way to fill it. A reasonable level of safety is broadly desired, and who wants child molesters, serial murderers, and the like around anyway?

A free society would encourage better behavior by opening numerous opportunities for self-improvement and social cooperation. Sure there will always be people who appear irredeemable, but how many would there really be? More importantly, how can they be treated and possibly re-integrated into society while they are kept from harming the rest of us? Anarchy offers numerous options for experimentation, in contrast to the state which offers a politically-entrenched machine which profits from suffering. Anarchy allows different arrangements to compete for popular support without the benefit of entrenched power or the political limiting of options. Government compels acquiescence.

Anarchy, where there are no rulers, is both a laudable goal for personal relations and a workable model for a peaceful, prosperous society. I hope E.D. Kain and interested readers further explore the theory and practice of anarchism. It is not a perfect option, but it is certainly a better option than anything that states will give us.

The post The Philosophy and Practice of Law and Liberty first appeared on People v. State.

I’m proud to be Belgian (i.e., one-quarter Belgian, through my maternal grandfather, who fought in WWII and received the Bronze Star and Purple Heart. He died when I was seven or eight. According to family members he was a very different man after the war than he was before.)

Three genuine war heroes: Smedley Butler, Hugh Thompson, and Bradley Manning.

“We’re All Victims of the System”

“Buy a gun. Get a dog.” And close down all the prisons. The world would be a better and safer place.

The post Memorial Day first appeared on People v. State.

If I lived in Texas, I would have had a little more background when I read this post by Murray Newman. I was skeptical about what he perceived as a double standard even reading it without context, but that by itself didn’t seem worth a post on my part. When a prosecutor gets charged and defense lawyers don’t just rant about the presumption of innocence, I hardly see it as cause for concern. We’re still human, right? Defense attorneys live in the same world as everybody else, don’t we?

. . .

In a post so perfect I couldn’t possibly add anything, Mark Bennett at Defending People explained why there is no double standard. Lack of contradiction isn’t the only thing that matters, however. There are additional, fundamental reasons why Murray’s post misses the mark, and here’s the passage that bothers me most:

The irony of the situation is stunning, because as members of the Defense Bar celebrate and rebroadcast the arrest of a prosecutor or police officer, they are abandoning the most sacred principles of the Constitution.

First, they are presuming them guilty.

And second, they are relishing in the idea that they should be treated more harshly under the law because they are different.

That last part is where I get the wind knocked out of me. It’s also where circumspection ties in. I’m going to be far less artful in my approach here than the others I cite, as the gravity of the situation as I see it depends on the full picture being crystal clear.

Here’s what’s happening, for the less-than-attentive: a prosecutor, one who once argued for a life sentence in a drunk-driving case, was just arrested for DUI. This comment from him in that life-sentence DUI case, which Mark quotes to start his post, is absolutely stunning in light of his current predicament:

Prosecutors Lester Blizzard and Kayla Allen, however, asked Ellisor for life sentences to send a message to anyone who would drive while intoxicated.

“To send a message to anyone who would drive while intoxicated.” If I could emphasize that more, I would. Should I put it in all caps too? “TO SEND A MESSAGE TO ANYONE WHO WOULD DRIVE WHILE INTOXICATED.”

Maybe they were misquoted, as news outlets rarely get it right with criminal cases, but that doesn’t matter much. Presumption of innocence and the fundamental role of a criminal defense attorney aside, this just isn’t a double standard in the traditional sense. This is something far greater. This is the kind of irony from which great tragedies are written. Mark does it justice, but I just can’t get over how amazing this is.

If this is indeed a double standard, it’s justified one, if such a thing exists. This prosecutor is different. I do indeed relish the idea that this man, if guilty, should be treated more harshly under the law. I relish that because this man, if guilty, is different. I’m also saddened because cruelty and ignorance, when applied to one who himself has sought institutional cruelty and ignorance, is no less cruel or ignorant. I really am overwhelmed by this situation, and I’m having trouble grasping how Murray’s response can possibly make sense.

Read the whole thing.

The post What Matt Brown at Chandler Criminal Defense said first appeared on People v. State.