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)

On a related note, Jeff Gamso credits Mike at Crime & Federalism with having the best tag line in the whole blogosphere:

Because everything I was ever told was a lie.

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 most vital human force on the face of the Earth,” he says, “is the true believer. It’s naive. It’s simple. It’s non-intellectual. It’s a wholehearted commitment to a cause. It’s what everyone’s afraid of. That’s what I bring into the courtroom.”

Serra’s insistence on swimming against the current on occasion, however, doesn’t translate outside the courtroom, even right outside the door. Considering himself the last of a dying breed, a sociological throwback, often results in estrangement. Wherever he goes, he admits, he feels estranged.

“Existentialism 101,” he says. “Disgorge yourself of everything, and redefine yourself, and ultimately the first level you reach is estrangement. The first level you feel is your alienation. I’ve never overcome that.”

. . .

Serra believes that the old-fashioned, outspoken, maverick, radical lawyer, the idealist who championed the rights of people, who fought nobly and selflessly for the balance of power in this country, has been crushed. The judiciary has squashed this kind of lawyer in every way. . .

When he looks around, he doesn’t see too many young lawyers who aspire to follow in his radical footsteps, who want to be targeted as the voice of opposition. . . .

The radical lawyer is a gadfly. He’s the canary in the coal mine; he sacrifices himself to alert others. He’s the Paul Revere who, whether he shows up with one lantern or two, is warning about the imminent arrival of the shock troops. Serra believes the end of America as a free society is marked by the end of the old-fashioned lawyer, whose rhetoric has opposed government, authority, and tyranny since the days of Patrick Henry. “Give liberty!” That voice against the oppressors is being undermined and strangled today.

I don’t share Serra’s accomplishments, but I proudly share his estrangement.

If 11 out of 12 jurors in a criminal case vote to convict, only 91.66% of those jurors have voted to convict. We righteously require more than that to overcome the presumption of innocence and convict a person of a crime.

If we the people really believe that government derives its just powers from the consent of the governed, and that we are endowed by our Creator with the inalienable right to the pursuit of happiness, then we should presume innocent not only every person but every person’s pursuit of happiness, and it should take a lot more than just a bare majority of self-serving politicians to rebut that presumption and to deem anything anybody does a crime.

I believe that the presumption of innocence is a fabulous thing. It’s perhaps the most cherished thing that we have given body to as a culture. Americans don’t really stand for very much. We’ve invented the cowboy movie. We’ve certainly invented a lot of implements of destruction: military airplanes, deadly toxins, and bombs. We jealously guard our atomic weaponry and disallow everyone else to have it. But on the good side, we’ve given concrete form and expression to the concept of presumption of innocence and we’re giving it now to the world. It’s really one of the pillars of a free society. We presume innocence. We make the prosecution prove its case beyond a reasonable doubt, to a moral certainty. What a fabulous notion!

Yet now society barely pays lip service to the presumption of innocence. It has become an idle construct of words, something that has no breath, no vitality. So what I say is, “Your spiritual cup must flow over.” When a cup flows over, there’s plenty for everyone. Part of that flow has to be, in our lives as lawyers, presumption of innocence. On a metaphysical level, presume every person innocent. Presume innocence always. Presume your family innocent. Presume your fellow lawyers innocent. Extend that presumption of innocence to everyone.

See, we are all truly innocent. The dichotomy of “guilt” or “innocence” is an artifact of words. We’re all either innocent or we’re all guilty! And we cherish innocence. We have built a noble edifice, a constitutional mandate, to that idea. Cherish that idea. Bring that idea forward with you each day. Presumption of innocence — serve that concept! Serve it in large ways. Serve it in small ways. Serve it every day. Bestow it upon your fellow man and woman, and you will be proud to have become a member of the legal profession.

Elsewhere in Lust for Justice Serra is quoted as calling the defense attorney, in a talk before a different audience on closing argument, “the incarnate symbol of the pursuit of justice for the accused.”

I love America, and therefore do not love the United States of America.

Stars, I have seen them fall,
But when they drop and die
No star is lost at all
From all the star-sown sky.
The toil of all that be
Helps not the primal fault;
It rains into the sea,
And still the sea is salt.

I am, alas, not particularly inspired by the Occupy Wall Street movement,  for sentiments suggested by the poem above and reasons expressed by Thomas Knapp, Gerry Spence, and especially Claire Wolfe, who advises: “Occupy Your Ownself.”

From Chapter 2 (“Chicago”):

George Schilling was a prominent trade unionist when he encountered Darrow at a gathering of freethinkers. The other speakers had gone too far in mocking the ministry of Jesus Christ, and Darrow “jumped in, and with a ten-minute speech defended the carpenter’s son of Judea with such a sympathetic, persuasive voice that I fell in love with him,” Schilling recalled. “We became fast friends.”

Though Darrow admired Christ’s teachings, he doubted his divinity, and was a regular with Schilling at the Secular Union. . . .

Here, Darrow expressed the deterministic philosophy that would guide him all his life. “The worst of all cruel creeds and of all the bloody wrongs inflicted by the past can be found in the barbarous belief that man is a free moral agent,” he said.

. . .

In August 1887, he wrote a letter to his friends at the Democratic Standard in Ashtabula, recounting a visit with the anarchists in jail.

“They are a good looking intelligent lot of men. At first they were not inclined to talk, but after assuring them that I was something of a crank myself . . . they entered freely into conversation,” Darrow reported. “They imagine that wealth is so strong that it controls legislation and elections and that we can only abolish present evils by wiping out capital and starting over new.

“It is very hard for one who, like me, believes that the injustice of the world can only be remedied through law, and order and system, to understand how intelligent men can believe that the repeal of all laws can better the world; but this is their doctrine.”

. . . “I hope you will not conclude that I am an Anarchist,” he wrote. “I think their doctrines are wild if their eyes are not.”

At the time, Darrow was a member of a single-tax group inspired by author Henry George, who had initially supported the Haymarket defendants but now was running for political office in New York, and modulating his beliefs. He infuriated Darrow and the others by declining to publish the club’s resolution asking for clemency in his organization’s newspaper. Darrow wrote a stinging letter to The Solidarity, a labor publication in New York, accusing George of cowardice.

From Chapter 4 (“Populist”):

Darrow had been shaken by the state’s relentless insistence on killing Prendergast. Now he watched its army and its judges, deployed at the behest of corporations, quell the collective action of American workingmen. The experience left him angry and alienated. The idealist who had said, when he arrived in Chicago, that the “injustice of the world can only be remedied through law, and order and system” began to reconsider.

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.