The Indiana Supreme Court seems to be reinstating convictions a hell of a lot lately.

In a just criminal justice system, a system which required of judges the same consensus we require of jurors, an “acquittal” at any step of the appellate process would end the defendant’s Jeopardy.

It’s only natural for judges employed by the State to believe in the State and its works more than your average bear. I wonder whether, by the same psychological logic, judges invested with more power by the State are even bigger believers than judges invested with less.

But this is a prime instance where I’m aware that I’m saying something that might be viewed as controversial and even “crazy” but which appears to me incontrovertible and clear as day. I believe in, more than I believe in anything else in the law, the presumption of innocence, and I extend that presumption of innocence even to judges and prosecutors. I have learned to hate the State, but the State is a big Nothing. I try very hard not to hate people. I don’t imagine myself to be purer or holier than anybody. I’ve worked for the State in the past, including but not limited to six years in the military, and even now in family law cases I regularly ask the State to positively intervene on behalf of my clients. If somebody burglarized my house I would call the cops and make a report.

I believe in the presumption of innocence, and I believe that presumption should apply equally to all people. What I object to is the judiciary’s attempts to confer upon itself what amounts to a heightened presumption of innocence, and specifically, a presumption that their judgments are innocent, just, lawful and honorable. (If anything, as Vincent Bugliosi, who is widely regarded as a poster boy for the State, has explained, common sense would seem to diminish rather than heighten the presumption of innocence in the case of judges.) Judgments, and particularly judgments from which violence and incarceration issue, are not entitled to a presumption of innocence.

I wonder about Justices Scalia, Kennedy, Thomas, Roberts, and Alito, who are all Roman Catholic, and whose God has commanded them to “Judge not, lest you be judged,” but whose Constitution has apparently recently told them (and Justice Kagan), but not three of their fellow Justices, to send a probably innocent grandmother back to prison indefinitely. I wonder if they really believe in their heart of hearts that on Judgment Day their Constitution will save them.

Jeff Gamso today honors an Honorable judge.

But if you think that judges as a class are higher as well as mightier than the rest of us, then behold this Texas family law judge administering “justice” to his own daughter:

//www.youtube.com/watch?v=Wl9y3SIPt7o

The very fact that the presumably-rational Ninth Circuit judges found that no rational trier of fact could have found the defendant guilty beyond a reasonable doubt should itself demonstrate to a rational mind that no rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Even the majority on the SCOTUS admitted that “Doubts about whether Smith is in fact guilty are understandable.” If those doubts are understandable, they’re reasonable.

A legal system worthy of respect would not limit the presumption of innocence to something we tell jurors they should think about, but would apply it across the board, in legislation, and in judicial opinions.

The dissenters essentially accuse the majority of Gratuitous Violence.

The “law” is exposed again as a cruel and ugly monster.

UPDATE: The Los Angeles Times reports:

Smith, contacted in Illinois where she has been living since she was allowed to leave her parole hold in California last year, broke down in tears at the news that she may have to return to prison.

“I did not kill my grandson. I won’t go back to prison. I can’t do that,” said Smith, who said she had not been told of the high-court ruling by her attorney or court officials.

According to a Los Angeles Times story from last year:

Citing her faith and her confidence that “there are people with consciences on the Supreme Court,” Smith says she firmly believes her ordeal is nearing an end and the high court won’t step in again to question the 9th Circuit judgment.

On other days, she is haunted by the darker scenario.

“I won’t go back to prison,” she vows, shaking her head with conviction. “I’ll take my own life first, but I won’t go back there.”

Rasmusen writes: “In general, compare the legal craftsmanship of the Court of Appeals opinion with the Supreme Court one, especially in the care and respect with which it explains why it thinks the other side’s arguments are wrong.” The Court of Appeals opinion addressed the central issue in the case as follows:

Barnes argues that the trial court abused its discretion when it refused to give the following jury instruction:
“When an arrest is attempted by means of a forceful and unlawful entry into a citizen’s home, such entry represents the use of excessive force, and the arrest cannot be considered peaceable. Therefore, a citizen has the right to reasonably resist the unlawful entry.” Appellant’s App. p. 18.

Barnes’s tendered instruction was not covered by the other instructions given. Further, Barnes’s instruction is a correct statement of the law. “Indiana law recognizes the right to reasonably resist the unlawful entry of a police officer into a person’s home.” Robinson v. State, 814 N.E.2d 704, 707 (Ind. Ct. App. 2004) (citing Alspach v. State, 755 N.E.2d 209, 211 (Ind. Ct. App. 2001), trans. denied).

. . .

Citing Robinson, the State argues that the instruction should not have been given because a defendant may not resist unlawful entry by battering a police officer. In Robinson, police officers responding to a 911 call of a possible domestic disturbance, refused to leave the premises after Robinson told them to leave. When an officer attempted to come onto the porch of the residence, Robinson pushed the officer off of the porch. Robinson appealed his conviction for battery on a law enforcement officer, and we concluded that Robinson’s act of pushing the officer off of his porch was not reasonable resistance. 704 N.E.2d at 708. Specifically, we stated “[t]he right to reasonably resist an unlawful entry does not include the right to commit a battery upon a police officer.” Id.

However, our court also stated: “there can be a fine line between reasonable resistance and battery, but that is for the jury to resolve.” Id. at 709 (emphasis added). Therefore, whether Barnes’s act of shoving Officer Reed out of the doorway of his apartment was battery or “reasonable resistance” is a fact question for the jury to resolve.

Seattle crime-fighting “superhero” Phoenix Jones knows he has it, and more power to him.

The Indiana Supreme Court, on the other hand, despite all the public outrage over its decision in Barnes v. State, continues to insist that in Indiana the Castle Doctrine is no longer a defense to the crime of battery (defined by the Indiana Code as “touch[ing] . . . in a rude, insolent, or angry manner”) when it’s a police officer rather than a mere mundane (whom Hoosiers are as free to batter as before) whose unlawful residential entry a homeowner tries to prevent or terminate by such “touching.” (Interestingly, the Court’s opinion on rehearing doesn’t mention the statutory definition of battery, and appears to implicitly broaden it, by denying the right of homeowners even to “get physical” with police officers. But I can easily imagine “getting physical” in ways that don’t necessarily involve touching in a “rude, insolent, or angry manner.” Can a bouncer who bodily and forcefully but otherwise calmly and non-violently removes a belligerent drunk from a bar automatically be said to touch him “rudely” or “insolently” or “angrily”? This would seem like exactly the kind of question a jury should decide. But the very point of Barnes v. State was to preclude the jury from deciding this kind of question.)

Before this gets farther, the underlying case was the charge of murdering an officer. Subsequent evidence –official police investigation and all witnesses– state the act was unintentional homicide in the act of self defense. The officer had a history of violence, and first (without provocation or cause) chased one brother down and beat him with an axe-handle. Then the officer went after and started to beat the other brother with the axe-handle; initiating a 5 minute tussle in which the officer’s gun was discharged.

The trial court Judge’s disrespect was for the prosecutor who made an involuntary manslaughter plea offer, then denied making it. When confronted with an audio tape of the offer, the prosecutor retracted it for voluntary manslaughter. In addition, the prosecutor flouted the court by refusing to attend the plea hearing, etcetera ….There is far more underneath all this –and far more background too– but the Virgin Islands Daily News has a splendid reporter who gives a great summary of this series.

The trial judge (Leon Kendall, now retired) issued an order enforcing the original plea agreement (to involuntary manslaughter). The lying prosecutor (Jesse Bethel) filed a writ of mandamus and the higher court granted it, vacating Kendall’s order. The defendants then tried to plea to voluntary manslaughter, but Kendall rejected the plea for lack of a factual basis, and published the “inflammatory” opinion that later got him found in contempt by the higher court. A month later, one of the defendants was found shot dead in the street. (Remember, he killed a cop.) His brother stood trial before a different judge and was acquitted of all charges.

Judge Kendall appears to be one judge who actually deserves to be called “Honorable”:

//www.youtube.com/watch?v=g28pOEo0OKE

What’s also crazy is that, based on an order issued this week in a divorce case by the same judge who presided over the pot possession case, I can’t at all be confident that I would have won the motion to suppress had it been left up to her. What’s frustrating is that her abuse of discretion in the divorce case order, as abusive as it was, only harmed my client by a few hundred dollars, making it uneconomical to appeal. I may do something anyway, just on principle. (Note to self: get out of family law already.)

On the other hand, if I was standing in my own backyard and a man I knew to be a serious violent felon suddenly showed up in my backyard with a pistol in his hand and angrily charged up to within “close range” of me, and if I happened to also have a pistol in my hand because a few minutes earlier the serious violent felon’s son had been angrily waving his own pistol around and had tried to physically force his way into my garage to get at an associate of mine whom the serious violent felon and his son were looking for, and was still standing vigil outside my garage (wherein I had ensconced my young son to keep him safe from the chaos and threatened violence occurring in my backyard) when his father showed up, I think my “reflexes” would be quite different. I don’t think I’d have the same presence of mind I’d have if only faced with an angry but unarmed lady justice. I don’t think I’d have the “presence of mind” to just stand there and wait and see if I was going to be shot at point-blank range in the next split second.

Apparently, all of the Justices on the Indiana Supreme Court think they would. They apparently think they’d dial 911 during the 3 or so seconds it took the serious violent felon to march up to within point-blank range of them after first appearing in their backyard and tell the operator to send the police over right away because two armed and dangerous men are on their property. They apparently are not afraid in their judicial wisdom to declare that a person who reacted differently to that situation deserves to spend 45 years in prison.

Personally, I think they’d react more like Justice Prosser.