Smith, who had been released from custody in 2006 pending the government’s appeal of her case, is expected to return to prison before Christmas, her attorney said.

. . .

Lawrence Daniels, a supervising deputy attorney general who argued the case for restoring Smith’s conviction, said he couldn’t answer questions about the case until he had fully reviewed the 18-page decision.

Smith’s attorney, Michael J. Brennan, said he would file a clemency petition with the state government but that the chances of it being granted were “extremely slim.”

“The attorney general’s office has fought vigorously to reincarcerate her for years. They don’t have the authority to say, ‘Just kidding, she doesn’t have to go back to jail,’ ” Brennan said.

. . .

made me think of this:

Somewhere there are still peoples and herds, but not with us, my brothers: here there are states.

A state? What is that? Well! open now your ears to me, for now I will speak to you about the death of peoples.

State is the name of the coldest of all cold monsters. Coldly it lies; and this lie slips from its mouth: “I, the state, am the people.”

It is a lie! It was creators who created peoples, and hung a faith and a love over them: thus they served life.

Destroyers are they who lay snares for the many, and call it state: they hang a sword and a hundred cravings over them.

Where there are still peoples, the state is not understood, and is hated as the evil eye, and as sin against laws and customs.

This sign I give to you: every people speaks its own language of good and evil, which its neighbor does not understand. It has created its own language of laws and customs.

But the state lies in all the tongues of good and evil; and whatever it says it lies; and whatever it has it has stolen.

Everything in it is false; it bites with stolen teeth, and bites often. It is false down to its bowels.

Confusion of tongues of good and evil; this sign I give you as the sign of the state. This sign points to the will to death! it points to the preachers of death!

All too many are born: for the superfluous the state was created!

See how it entices them to it, the all-too-many! How it swallows and chews and rechews them!

“On earth there is nothing greater than I: I am the governing hand of God.” — thus roars the monster. And not only the long-eared and short-sighted fall upon their knees!

Ah! even in your ears, you great souls, it whispers its gloomy lies! Ah! it finds out the rich hearts which willingly squander themselves!

Yes, it finds you too, you conquerors of the old God! You became weary of conflict, and now your weariness serves the new idol!

It would set up heroes and honorable ones around it, the new idol! Gladly it basks in the sunshine of good consciences, — the cold monster!

It will give everything to you, if you worship it, the new idol: thus it buys the lustre of your virtue, and the glance of your proud eyes.

Through you it seeks to seduce the all-too-many! Yes, a hellish artifice has been created here, a death-horse jingling with the trappings of divine honors!

Yes, a dying for many has been created here, which glorifies itself as life: verily, a great service to all preachers of death!

The state, I call it, where all drink poison, the good and the bad: the state, where all lose themselves, the good and the bad: the state, where the slow suicide of all — is called “life.”

Behold the superfluous! They steal the works of the creators and the treasures of the wise. Education, they call their theft — and everything becomes sickness and trouble to them!

Behold the superfluous! They are always sick; they vomit their bile and call it a newspaper. They devour each other and cannot even digest themselves.

Behold the superfluous! They acquire wealth and become the poorer for it. They seek power, and the lever of power, much money — these impotent ones!

See them clamber, these nimble apes! They clamber over one another, and thus pull each other into the mud and the abyss.

They all strive for the throne: this is their madness — as if happiness sat on the throne! Often filth sits on the throne. — and often also the throne on filth.

Madmen they all seem to me, and clambering apes, and too eager. Foul smells their idol to me, the cold monster: foul they all smell to me, these idolaters.

My brothers, will you suffocate in the fumes of their maws and appetites! Better to break the windows and jump into the open air!

Escape from their foul stench! Escape from the idolatry of the superfluous!

Escape from their foul stench! Escape from the steam of these human sacrifices!

The earth is yet free for great souls. There are still many empty sites for the lonesome and the twosome, surrounded by the fragrance of tranquil seas.

A free life is yet possible for great souls. He who possesses little is that much less possessed: blessed be a little poverty!

There, where the state ends — there only begins the man who is not superfluous: there begins the song of the necessary, the single and irreplaceable melody.

There, where the state ends — look there, my brothers! Do you not see it, the rainbow and the bridges of the Overman?

Thus spoke Zarathustra.

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.)

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.

7. None of us should be afraid to try the hard cases. Sometimes we have cases where we are convinced the person is guilty, but maybe for evidentiary reasons, we also know it’ll be hard to prove it. The defense knows it, too, so won’t plead. I think sometimes we have to try and convince a jury in those instances, even if the risk of losing is high. It’s simply the right thing to do. And, you know, sometimes when we do that, we win.

Yeah, and sometimes when you do that, you convict an innocent man. Congratulations.

Prosecutors should never lose. Losing for a prosecutor is a disgrace, and prima facie evidence that he’s personally and morally responsible for the imprisonment of innocent people.

UPDATE: I mean, do we take the requirement that guilt must be proven “beyond a reasonable doubt” before we’ll lock a human being up in a cage like an animal, and the adage that it is better that a hundred guilty persons go free than for 1 innocent to suffer, seriously, or not? In the video linked from the word “Congratulations” above, Tony Serra, a former prosecutor, tells the jury in his closing argument in the Ted Binion murder trial: “There’s an old adage in the prosecution world: It’s easy to convict the guilty; the real challenge is to convict the innocent!”

UPDATE II: The flip side of the above is what I wrote here:

The more ethically a prosecutor does his job — by only prosecuting defendants who given the admissible evidence are almost certain to be convicted after trial — the smaller should be the consideration necessary to induce a defendant to plead guilty, and the smaller the corresponding “trial tax.”

#1 and #5 on D.A. Confidential’s Top Eight list of why win/loss tallies are pointless are:

1. This isn’t a game. It’s about justice for victims, and at stake is often the freedom of defendants. Making it about me winning or losing risks distorting that.

. . .

5. If I’m winning all my cases, I should probably be pleading them out. Winning slam-dunk cases is proof of nothing.

Winning slam-dunk cases is “proof of nothing”? What’s he got to prove? I thought this wasn’t a “game,” and wasn’t about him winning or losing.

It may seem like the way I’m suggesting the criminal justice system should run would spell the end of jury trials, which would be very sad for real criminal defense lawyers and prosecutors alike.

Yes and no. Slam-dunk cases should be the only ones that go to trial, because they should be the only ones that are prosecuted. Proof beyond a reasonable doubt requires nothing less. Law is like poker, but shouldn’t be, especially when the life and liberty of a human being hangs on the river card. But the fact-finding function of the jury isn’t its most essential and fundamental function in a just criminal justice system anyway. Rather, it is the jury’s traditional right, largely eviscerated by judges, to judge the justice of the laws under which people are prosecuted which is its most essential and fundamental function. Restore this right to its rightful place, and lawyers will still have plenty to argue over and “prove,” even in “slam-dunk” cases.

While we’re on the subject of a “just criminal justice system,” let’s also acknowledge once and for all that the judicial notion that a hung jury doesn’t conclusively demonstrate that the prosecution failed to prove its case beyond a reasonable doubt and that retrying the defendant violates Double Jeopardy is completely retarded. But let’s imagine a compromise which takes into account the concern that lone whackos do sometimes make it onto juries in spite of voir dire: When a jury hangs, poll the jurors. If 11 jurors were persuaded beyond a reasonable doubt that the defendant was guilty, retry him. Otherwise — i.e., if more than one juror wasn’t persuaded beyond a reasonable doubt that the defendant was guilty — well, that’s pretty much by definition reasonable doubt, and the defendant should go free.

What recently changed my mind about these cases is the Indiana Supreme Court’s decision in Tyrus Coleman v. State (2011), and the utter failure of these cases to do Mr. Coleman (whom I represented at trial) any good. Now when I read Yeager the only significant thing about the case seems to me to be the fact that the defendant, Mr. Yeager, was an Enron executive.

The Indiana Supreme Court’s decision in Mr. Coleman’s case came less than a week after that court rendered its infamous decision in Barnes, which purports to abrogate the right of the people to reasonably resist unlawful police entry into their homes. I lament the fact that Barnes has gotten all the attention and public vilification, while the court’s disposal of Coleman has gotten none, even though both cases equally exude the pernicious implication that only police officers are entitled to use force to defend themselves or others and that the only allowable recourse of a man facing armed and dangerous men who are in the act of invading his property is to call the police.

In the wake of the political fallout over Barnes the Indiana Attorney General has put on his white hat and joined the chorus condemning Barnes:

I support a rehearing of the case to allow for a more narrow ruling that would continue to recognize the individual right of reasonable resistance to unlawful entry. In our brief and argument to the Indiana Supreme Court last fall, my office did not advocate for the type of ruling the Court issued last week.

Here’s my response to that, borrowing from Eric Turkewitz: “Go shit in your white hat and pull it down over your ears.” Your office didn’t have to petition the Indiana Supreme Court for transfer after the Indiana Court of Appeals rendered its eminently reasonable decision that would have freed Tyrus Coleman — an innocent man — on the grounds of collateral estoppel, but it did.

And speaking of going above and beyond the call of duty, here are the principal considerations which normally govern the Indiana Supreme Court’s decision whether to grant transfer:

(1)     Conflict in Court of Appeals’ Decisions. The Court of Appeals has entered a decision in conflict with another decision of the Court of Appeals on the same important issue.

(2)    Conflict with Supreme Court Decision. The Court of Appeals has entered a decision in conflict with a decision of the Supreme Court on an important issue.

(3)    Conflict with Federal Appellate Decision. The Court of Appeals has decided an important federal question in a way that conflicts with a decision of the Supreme Court of the United States or a United States Court of Appeals.

(4)    Undecided Question of Law. The Court of Appeals has decided an important question of law or a case of great public importance that has not been, but should be, decided by the Supreme Court.

(5)    Precedent in Need of Reconsideration. The Court of Appeals has correctly followed ruling precedent of the Supreme Court but such precedent is erroneous or in need of clarification or modification in some specific respect.

(6)    Significant Departure From Law or Practice. The Court of Appeals has so significantly departed from accepted law or practice or has sanctioned such a departure by a trial court or Administrative Agency as to warrant the exercise of Supreme Court jurisdiction.

You will search the Indiana Supreme Court’s published opinion in Coleman in vain for any new explication of the law of collateral estoppel, any explanation of how the Indiana Court of Appeals’ decision had “departed from accepted law or practice” (let alone “significantly”), or any hint of the above-listed “considerations” which normally govern whether the Indiana Supreme Court grants transfer. Even though the first jury in Coleman’s case had acquitted him of murder and hung on the attempted murder charge (which in a just world and a just legal system would establish reasonable doubt as to Mr. Coleman’s guilt on both charges), and even though there was nothing contrary to established law in the Court of Appeals’ decision, the “Justices” on the Indiana Supreme Court chose to condemn Mr. Coleman to 45 years in prison for doing something that I believe with every fiber of my being was completely justified.

I agree with Gerry Spence: If a prosecutor is doing his job right, he should never lose at trial.

[As I noted in this post, Spence wrote of his stint as a prosecutor in The Making of a Country Lawyer:

I finished my second term having tried many more cases, none of which I lost, not that such a record stands for much. With all the power prosecutors possess, they ought not lose cases. The wrong case, the unjust case should be rejected in the prosecutor’s office before he seeks an indictment.]

Mark replied:

I used to think that was right, but no longer.

Just as sometimes the defense has to try cases that are probably losers (and no criminal-defense lawyer worth his salt has never lost a jury trial), sometimes the State has to try cases that could go either way, and let the jury decide.

A prosecutor could easily bat 1.000 by selling the hard cases cheap. But that’s neither good lawyering nor, I suspect, justice.

Harris County (Houston, TX) Criminal Court No. 6 Judge Larry Standley commented:

RE: ” Gerry Spence: If a prosecutor is doing his job right, he should never lose at trial.” I simply do not understand this concept: Define “winning” (no Charlie Sheen quips please). Define losing.

As a former prosecutor for 14 years I received many “not guilty” verdicts that were actually “not proven beyond a reasonable doubt verdicts. No war story beating of my chest here – maybe a “better prosecutor” could have carried the day – but I didn’t and I still to this day feel “I did my job right”.

I dismissed and received no bills on many cases that some prosecutors might see as losing – but it was the right thing to do. My personal definition of justice is an abstract goal to strive for, but must be tempered by “The Rules”. In short it is this: “Justice: That state of affairs that exists when all people get what’s coming to them”.

In a simple black and white comparative example: For the innocent, justice would be never being arrested, charged or in the alternative a dismissal or not guilty. To the guilty, with all rules being followed by all parties in the C.J. System, that would be an arrest, charge and conviction.

Though imperfect, we still do have the BEST Criminal Justice System in the world. The best reward ANY prosecutor should ever hope for in this system is – at the end of the day, after doing their best, and following the rules – is that particular outcome of any particular case was the most “JUST” under the specific circumstances of that particular case give all the admissible evidence presented. In short – this concept of truly seeking justice ALONE, while doing one’s best, is the best and honest reward any prosecutor should ever need……..because we know it “ain’t for the money”.

I replied to Judge Standley:

Suppose a prosecutor is 80% sure, based on the evidence, that the defendant is guilty. Is it ethical for him to proceed to trial? I don’t think so, because he knows very well that 80% certainty is enough for many juries to convict. But if many juries are convicting based on 80% certainty, that means a whole lot of innocent defendants are being convicted. By regularly proceeding to trial in such circumstances, the prosecutor is guaranteeing that he’ll lose some trials that he should lose and — much worse — that he’ll win some trials that he should lose.

Suppose a prosecutor is 95% sure that the defendant is guilty — which is a little closer to what I think proof beyond a reasonable doubt requires. To my mind, a 5% doubt is still a reasonable doubt, and the prosecutor should [if he doesn’t dismiss the case outright] make an offer which would make it unreasonable for the defendant to proceed to trial. Now, in such circumstances you’ll sometimes have defendants who, either because they’re in fact innocent despite evidence showing it’s 95% likely they’re guilty or because they’re both guilty and unreasonable, refuse all reasonable offers and insist on proceeding to trial. Such a case might result in a guilty verdict. It might result in a hung jury. But if you get 12 jurors agreeing unanimously that the State didn’t prove its case beyond a reasonable doubt, especially given that jurors are notoriously not excessively fastidious about convicting people the State asks them to convict, I don’t see how that’s not a true black mark on the prosecutor’s record, and doesn’t call into question either the prosecutor’s trial skills or his wisdom in proceeding to trial in the first place. Prosecutors get to choose their cases, and there’s no shame in choosing them so that they virtually never lose. I’ve had the pleasure of visiting with the jury in the jury room along with the prosecutor and the judge after the jury acquitted my client in less than 30 minutes, and hearing them pointedly ask the prosecutor in so many words whose bright idea it was to prosecute the case. Although I was happy and relieved to have won (I knew juries are capable of anything), there was no hand-shaking going on between me and the prosecutor. I was glad to see the jurors applying salt to the prosecutor’s fresh wound, to see them adding insult to [the prosecutor’s failed attempt to cause] injury.

Granted, a prosecutor who only proceeds to trial in cases he’s almost certain to win, and who offers very reasonable plea offers to defendants who are 95% likely to be guilty, risks being seen as insufficiently aggressive by the electorate. Such a prosecutor might also be unpopular among defense attorneys who like to occasionally try beatable cases. But it seems an unbeaten trial record would also be a nice selling point at re-election time, along with the savings to the county in resolving most cases without trial.

Even in slam-dunk cases the prosecutor can and should offer the defendant something as consideration for saving him and the county the trouble of trial, e.g., a cap on the executed portion of the sentence that is less than the maximum the judge could reasonably impose after the defendant is convicted at trial. The prosecutor is truly abusing his discretion if his intent is to force a slam-dunk case to trial so as to get more trial experience and/or to improve his trial win-loss record.

BTW, I’ve come up with a definition of Justice that is similar to yours: Justice is the absence of crime. The “justice” that is doled out by the criminal “justice” system is Justice only in a derivative sense, i.e., only insofar as by deterrence, rehabilitation, [incapacitation] and/or (more controversially) retribution it tends towards or (more controversially) approximates the “absence of crime.” It is better that 100 guilty men escape than that 1 innocent suffer. The conviction of an innocent man is itself a crime. The escape of a guilty man is not.

I don’t mean to say by my comments above that a prosecutor who loses a trial is ipso facto a “bad” prosecutor. Marcia Clark and Christopher Darden, e.g., were of course right to try O.J. Simpson for murder, given the evidence against him. Although Vincent Bugliosi, among others, was highly critical of their performance at trial and argued that this is why Simpson got away with murder, it’s possible that Clark and Darden could have done everything right and still lost. Nevertheless, for the reasons stated above, such losses should be exceedingly rare. Bugliosi himself won 105 out of 106 felony jury trials during his career as a prosecutor. This conviction rate at trial was presumably due not only to Bugliosi’s ability and hard work but also to his discretion in deciding which cases to prosecute and what plea offers to make.

Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution’s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe but more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth.

— Mr. Justice White’s dissenting opinion in United States v. Wade, 388 U.S. 218, 256-58 (1967) (Emphasis added.)

Prosecutors may read this famous opinion differently, but I read it to say that the mission of defense counsel is to do justice.

Justice is the absence of crime. Convicting the innocent is a crime if ever there was one. The “justice” of prosecutors is justice only in a derivative sense. It’s the use of punishment — which itself outwardly resembles crime — to try to prevent or deter future crimes and/or somehow negate or provide satisfaction for crimes which have already occurred. Its purpose is to approximate so far as possible justice in its root sense, but historically hasn’t gotten us very far.

Kindley and Bennett and Scott Greenfield have had an ongoing disagreement about just what it is that criminal defense lawyers “do”.  I’ve weighed in on that debate obliquely:  here and here, for example.  And here.

Does this segue into The Question?  Maybe.  Bennett seems to think so.

(The Question is:  how do you defend people you know are guilty?)

The quality of mercy is not strained, but the demand of justice is that wrongs be paid for.  Can you rationally try to balance mercy and justice?  Sure.  Will people differ on where or how that balance can be achieved?  Of course.  Can you be perfectly merciful and perfectly just at the same time?

No.  Not in this life, anyway.

How simple, then.  There is plenty of room to defend the “guilty” without “setting aside” one’s own sense of right and wrong, with due regard for one’s limitations in the system.  It is completely unnecessary to go on from there and assert that “justice”, and for that matter “mercy” and “love” and a million other unseen but real things either do not exist or are meaningless and not part of “what we do”.  But that’s what Bennett and Greenfield argue.

Why?  They have reasons of their own, obviously.  I suspect I may know some of them.  The others probably don’t matter.

Why do I care, then?

Bennett and Greenfield are prominent blogging lawyers of the criminal defense variety.  They maintain this bullshit – and it is bullshit, since even they don’t believe it – to the detriment of themselves, their clients, and other CDL’s and their clients.  As I have noted before, they justify Judge Jacobs‘ and other judges’ and jurors’ views that CDL’s are irresponsible, wrongly hyper-partisan, self-interested and untrustworthy.

Put another way, and as I believe attorney Kindley has noted, they cede the moral high ground to prosecutors and judges in advance.  And then – somewhat irrationally – they complain when prosecutors and courts commit injustices over the objections of CDL’s because they never seriously listen to CDL’s.

Posts in which I staked out the position to which Strike-Lawyer is referring are here and here. The most concise statement of my position is here:

Law is defensive. Its purpose is to prevent injustice from reigning. The responsibility of the prosecutor within the Law is to defend the rights of all, and thereby to prevent injustice from reigning. The responsibility of the criminal defense attorney within the Law is to defend the rights of his client, and thereby to prevent injustice from reigning.

As for the sanity of Strike-Lawyer’s underlying mission, I invite readers to Google “Lawyers on Strike.”

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.