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

I have a great deal of respect for Jeff. He’s been a great help to me on a couple of occasions with real life legal matters, once by phone and on another occasion by email. He’s encouraged me to hang in there when I’ve expressed readiness to throw in the towel. Beyond that, although we’ve sharply disagreed and traded barbs online on several occasions, and he’s come close to calling me an idiot, and probably close to half of my comments on his blog are critical (personally, I’ve always believed that thoughtful, critical comments are the most valuable), he continues to engage me, which is more than I can say for more than one blogger with whom I’ve also sharply disagreed and traded barbs.

I recognize that this blog has evolved or devolved to a single and simple philosophical point, and that philosophy doesn’t lend itself to blogging. I see this as a perhaps regrettable manifestation of my lifelong Platonic impulse, a preference for the universal over the particular, which some might – not unreasonably – interpret as intellectual laziness. Many criminal defense blogs ably and interestingly chronicle on a daily or weekly basis the crimes of the criminal justice system. My message is simply that the intention of the State is not to fight crime but to perpetrate it.

A major theme of the so-called practical blawgosphere is the denigration of attorney advertising. The true professional, although he earns his living by his profession, is not motivated by filthy lucre. He’s not an ambulance chaser. I’ve always appreciated this sentiment. I’m warming to it more and more. The legal profession is not a job like other jobs. It’s a calling.

I’ve felt called before. The lords of the legal profession, however, have given me every indication that I’m not welcome in their domain. Nevertheless, I remain the kind of man who would not turn a deaf ear to a person who needs help and whom I believe I can help. I believe there’s nothing more noble in life. I am open to that call.

But if the phone doesn’t ring? If I’m not called?

Norm Pattis has a post up today contemplating the upcoming trial season. It’s not pretty. It’s midnight terrors. It’s gambling and trading in human life. It’s Russian Roulette. It’s war.

It’s not the kind of thing one does unless one is called.

The beauty of poetry, even when written by a self-described hack like Robert Service, is that it can romanticize even The Men Who Don’t Fit In:

There’s a race of men that don’t fit in,
A race that can’t stay still;
So they break the hearts of kith and kin,
And they roam the world at will.

They range the field and they rove the flood,
And they climb the mountain’s crest;
Theirs is the curse of the gypsy blood,
And they don’t know how to rest.

If they just went straight they might go far;
They are strong and brave and true;
But they’re always tired of the things that are,
And they want the strange and new.

They say:  “Could I find my proper groove,
What a deep mark I would make!”
So they chop and change, and each fresh move
Is only a fresh mistake.

And each forgets, as he strips and runs
With a brilliant, fitful pace,
It’s the steady, quiet, plodding ones
Who win in the lifelong race.

And each forgets that his youth has fled,
Forgets that his prime is past,
Till he stands one day, with a hope that’s dead,
In the glare of the truth at last.

He has failed, he has failed; he has missed his chance;
He has just done things by half.
Life’s been a jolly good joke on him,
And now is the time to laugh.

Ha, ha!  He is one of the Legion Lost;
He was never meant to win;
He’s a rolling stone, and it’s bred in the bone;
He’s a man who won’t fit in.

Call us the uncalled.

I’ve been accused of being a Bugliosi groupie. I challenge anyone to actually read And the Sea Will Tell and then tell me that Vincent Bugliosi was not a badass criminal defense attorney. This doesn’t mean he’s a hero of mine that I aspire to emulate. It is easier for a camel to pass through the eye of a needle than for a former prosecutor to enter the kingdom of heaven, at least until after he’s smoked a turd in Purgatory for every hour of unjust incarceration for which he is responsible. (Both Serra and Gerry Spence are also former prosecutors, by the way.) But I’ve got to respect a guy, perhaps especially a guy primarily famous for being a prosecutor, who has written things like this, this and this. Read those links, and then tell me whose “side” Bugliosi is on.

What really pissed “everyone” off, though, is that I cited as interesting, in the course of advancing in the face of impassioned and disdainful resistance the uncontroversial proposition that the role of the criminal defense attorney is to do justice, Bugliosi’s policy as a criminal defense attorney of only representing people he was persuaded were actually innocent. (But see here.) Compare Serra, as quoted in Lust for Justice: “What I’m mostly noted for is taking the impossible cases. Every case I do nowadays is impossible. I win sometimes, I hang more times, but I lose most of the time.”

Between Bugliosi’s and Serra’s criminal defense practices, guess whose I’d think would be more terrifying.

I remain deeply perplexed by the saga of Strike Lawyer / Atticus / John R. / John Regan. When the “Lawyers on Strike” blog appeared, I was as skeptical as anyone towards its stated idea “to function as a clearing house of the most egregious and harmful judicial abuses and select specific instances, and judges, for a targeted boycott – a strike – by attorneys,” and was surprised when level heads like Jeff Gamso’s actually appeared to take it seriously, although I later noted that if you actually Google “Lawyers on Strike” you’ll see that the concept itself is hardly unheard of. Frankly, I wondered whether the author of the blog, who went by Atticus then, was himself really serious, or whether the concept of his blog was some kind of clever stunt. I wondered this especially because Atticus seemed quite lucid and rational, and not at all nuts. (He was, for example, apparently the only blawger in the whole so-called practical blawgosphere besides myself who understood that the role of the criminal defense attorney is to do justice.) On the other hand, as he himself very recently observed: “the problem with a madman is not that he is illogical; it’s that he is only logical. It’s logical to frantically brush off the giant spider; the problem is there is no giant spider.”

At least a couple bloggers apparently have an irrationally low opinion of “John R.,” Atticus’ past incarnation as a commenter on Scott Greenfield’s blog. I couldn’t disagree more. That of course doesn’t mean I think he was always right. In one exchange he appeared to defend “rat-lawyers” (which is admittedly hardly an unorthodox position), and this comment he left as Atticus on my blog in retrospect seems consistent with that. On the other hand, there was this exchange between John R. and Greenfield, which in my opinion John R. clearly “won” (without even trying) and which concluded with Greenfield writing: “The fact is that my quibble with you is around the edges, not the core.  Your problem is that you care, and life is never easy for anyone who cares.”

I strongly suspected Atticus was John R. long before Atticus revealed himself as John M. Regan Jr. (JMRJ). My reaction to this revelation and to JMRJ’s story was similar to my initial reaction to the appearance of the “Lawyers on Strike” blog itself: I thought, this is nuts, but the guy telling this story is lucid as hell. The broad outline of the story didn’t make much sense, and I said as much in a comment on his blog, but JMRJ promised to explain everything, and began to fulfill that promise in a series of very interesting and cogent posts. Now it appears that “some attorneys” whose opinions JMRJ respects have raised some concerns about him telling the story, and he has halted further posts pending resolution of their concerns. This is exceedingly strange, since JMRJ, who apparently represented the client at the center of this story until at least 2010, when the U.S. Supreme Court denied the petition for writ of habeas corpus he filed on her behalf, wrote an article about the case back in 2007 that names names and is available online, and since if you Google the client’s name the very first item that comes up are the comments on a 2006 local news story, which includes comments like this.

I wouldn’t be shocked to learn that JMRJ is, like Tony Serra, like all of us, a “deeply flawed” human being. I wouldn’t even be terribly shocked to learn that something in his mind has snapped, and that he is frantically brushing off a giant spider when there is no giant spider. (For that matter, I wouldn’t be terribly shocked if I lost my mind.) I’m of course giving him every benefit of the doubt on that score, at least until he’s had the opportunity to finish his story, although at this point I don’t know whether he’ll ever have that opportunity. As Mike at Crime & Federalism wrote: “Strike Lawyer is a credible, thoughtful guy. I’m inclined to presumptively take him at his word.” Regardless, I will consider JMRJ a friend and a kindred soul. I have no heroes.

CONTRAST Jeff Gamso’s July 4th post contrasting the relative “necessity” of dissolving political bands in 1776 and now with Norm Pattis’ July 4th post contrasting the trial in 1770 of the British soldiers charged with murder for their role in the Boston Massacre with the U.S. Supreme Court’s decision in 2011 in the case of Harry Connick, District Attorney v. John Thompson (throwing out a $14 million jury award for an innocent man who was imprisoned for 18 years, including 14 on death row, because prosecutors hid evidence that exonerated him).

Update: See Jeff Gamso’s post on this story and my comments.

“Punishing” a defendant for refusing to “accept responsibility” by admitting guilt is completely out of line. It is, however, appropriate to “reward” a defendant who saves the state the trouble and expense of trial by pleading guilty. A guilty-in-fact defendant might internally be genuinely remorseful for what he’s done — but this laudable spiritual attitude doesn’t mean he’s morally bound to accept as a good thing the expiation of his sins the state has in mind for him. The state — quite appropriately — commonly calls into question the sincerity of any remorse expressed by the defendant at sentencing, and argues that the defendant is “sorry” he got caught. We’d all be better off if the “acceptance of responsibility” charade was taken completely off the table.

Mark Draughn in a post about Jamison’s asks:

Who among us, if caught committing a crime, wouldn’t be willing to apologize in as sincere-sounding a manner as we possibly can, if we’re told it could knock months or even years off our sentence? . . .

You know who’s going to have trouble accepting responsibility? People who are factually innocent. . . .

Requiring defendants to “accept responsibility” is a policy that rewards the truly guilty while punishing the truly innocent. . . .

To me, it feels as if the courts are engaging in a policy of collective moral cowardice. It’s as if judges don’t really believe the system works. The jury has been told to trust the system, and they do, rendering their verdict of guilt based on what they saw and heard during the trial. For the judge, however, that’s not good enough. He’d like to tie it up all neat with a confession just to be sure, even if the confession is coerced by a threat of a tougher sentence.

I can understand why police want to make a suspect confess. It’s part of the investigative process, part of building a case. But this practice of pressuring a person to confess after conviction reminds me of nothing less than the Moscow show trials under Stalin, when those accused of crimes against the state were coerced into confessing to whatever crimes they had been convicted of in the rigged trials.

Jeff Gamso comments on Mark’s post:

And there’s not supposed to be a penalty for exercising your constitutional right to trial. But if you insisted on going to trial, it’s hard to say that you were accepting responsibility, so the sentence goes up. Not for going to trial, but for not pleading guilty.

A person who is in fact guilty of a crime has not only no legal obligation but also no moral obligation to do harm to himself by confessing his guilt to the state and facilitating his own conviction and punishment at the hands of the state. It is therefore entirely inappropriate to punish at sentencing a defendant who insisted on going to trial for a non-existent moral failing intrinsic to the defendant. On the other hand, the public does have an entirely legitimate interest in resolving criminal cases by plea rather than trial, based not only on the public expense of trial, but also on the remote possibility that a jury might fail to convict a defendant whom the evidence in fact proves is guilty beyond a reasonable doubt. It therefore behooves the prosecution in plea bargaining and/or the judge at sentencing to give defendants who plead guilty some incentive and consideration for saving the public the expense and the risk of trial. Such consideration has nothing to do with the moral blameworthiness or praiseworthiness of the defendant.

This is still, as Jeff Gamso calls it, a “nasty” business, and still stinks of a “trial tax,” since the bottom line is that a defendant who is convicted after trial is likely to be sentenced more “harshly” than if he’d pled guilty, even though defendants who are convicted after trial and defendants who plead guilty “deserve” the same sentence. (It can be safely assumed that defendants who plead guilty aren’t motivated to do so by the desire to save the public the expense and risk of trying them, nor should they be.) But consider: A person who commits a crime but isn’t caught goes free, even though he “deserves” punishment. A person whom a prosecutor suspects is guilty but whom he believes a jury is only 50% (or less) likely to convict should also be allowed to go free (since a prosecutor must be himself convinced beyond a reasonable doubt by the admissible evidence that a defendant is guilty in order to ethically prosecute him, and a 50% likelihood of conviction just doesn’t cut it). If a 50% chance that a jury will fail to convict justifies a suspect going free entirely, a 1% chance that a jury will fail to convict justifies a suspect “going free” for some correspondingly lesser amount of time. (A judge can appropriately take this into account at sentencing even for a defendant who enters an “open plea” of guilty after the prosecution refuses to offer any plea bargain.) Obviously, after a defendant is convicted by a jury there is a 0% chance that a jury will fail to convict him. (On the other hand, I think it would be appropriate for a judge to take into account any residual doubt he may have about the guilt of a defendant who’s been convicted by a jury in sentencing him.)

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.”

As I see it, the practical upshot is this: A convicted defendant who at sentencing tearfully expresses to the court and the victim his remorse for his crime should get no consideration from the judge in his sentencing decision for doing so. This protects wrongfully convicted innocent defendants who have nothing to apologize for, and has the incidental but not trivial benefit of ensuring that any such expressions of remorse are sincere.

Or maybe it’s really not Morlock’s fault. Maybe war just does that to people. In which case we should never, ever, go to war, unless it’s actually to defend ourselves. We should bring all of “our” troops home this very minute.

Morlock was sentenced yesterday to a mere 24 years in prison for willful and gratuitous and inexcusable murder. A former client of mine was convicted by a jury and sentenced by a judge to 45 years in prison for justifiably defending himself and his son and friends on his own property from two angry men brandishing guns. I blame myself — but not only myself — for his conviction, and I swear to God if it could free him I’d turn my bar card in to the supreme court in less than a second. Every day I await and look for the decision of five fallible men in Indianapolis, who hold his fate in their hands. Our justice system deserves no respect. Neither does our military. As someone who enlisted at the age of 17 and “served” until the age of 23, I generally feel sorry for those who’ve made the same supreme mistake I did, whose parents didn’t have enough wisdom to impress upon their children that working at Burger King would be infinitely more honorable. But I don’t feel sorry for Morlock. He’d be better off dead. It would be even better if he’d never been born.

And still . . . let me offer an argument for the existence of God, and a sign that a deep and abiding and holy decency remains buried deep within the American spirit, a decency that on occasion even the State is forced to recognize. Let me hold up the example of Hugh Thompson, as described in the words of the citation accompanying the Soldier’s Medal, which he was finally awarded almost 30 years after his heroic actions during the My Lai massacre in Vietnam:

For heroism above and beyond the call of duty on
16 March 1968, while saving the lives of at least 10
Vietnamese civilians during the unlawful massacre of
noncombatants by American forces at My Lai, Quang
Ngai Province, South Vietnam. Warrant Officer
Thompson landed his helicopter in the line of fire between
fleeing Vietnamese civilians and pursuing American
ground troops to prevent their murder. He then
personally confronted the leader of the American ground
troops and was prepared to open fire on those American
troops should they fire upon the civilians. Warrant Officer
Thompson, at the risk of his own personal safety, went
forward of the American lines and coaxed the Vietnamese
civilians out of the bunker to enable their evacuation.
Leaving the area after requesting and overseeing the
civilians’ air evacuation, his crew spotted movement in a
ditch filled with bodies south of My Lai Four. Warrant
Officer Thompson again landed his helicopter and covered
his crew as they retrieved a wounded child from the pile of
bodies. He then flew the child to the safety of a hospital at
Quang Ngai. Warrant Officer Thompson’s relayed radio
reports of the massacre and subsequent report to his
section leader and commander resulted in an order for the
cease fire at My Lai and an end to the killing of innocent
civilians. Warrant Officer Thompson’s Heroism
exemplifies the highest standards of personal courage and
ethical conduct, reflecting distinct credit on him, and the
United States Army.

Jeff Gamso has been doing a lot of posting lately, which is good, he’s a good writer.  Today he revisits what he has termed the “Mark Gardner Rule”, which has to do with lawyers not criticizing judges, because if they do they’ll be disciplined by the attorney disciplinary committees or tribunals or star chambers or whatever it is they call them in whatever jurisdiction.  The occasion for Jeff’s post is that another lawyer had breached this rule, one Patrick Rocchio of Michigan or Indiana, or something.

Now, my own criticism of what Mr. Rocchio supposedly did has more to do with the poor aim of the invective, not the invective itself.  The best argument to have made to the disciplinary committee and the court . . . is that  chicken shit disciplinary charges are visited only upon independent, private practitioners like Rocchio.  Never upon big firm lawyers.  Never upon government lawyers.  Never, ever upon prosecutors.  Indeed, government lawyers can commit huge violations without a peep from the disciplinary committees.

It’s the way lawyer “discipline” functions all over the country.  There is only a small – and shrinking – pool of attorneys that are even eligible to be disciplined, although in theory of course all lawyers are subject to the rules.  But it just isn’t true.

To justify their existence, then, disciplinary committees must increasingly target that small group of lawyers for smaller and smaller “violations”. The inevitable result is that independent practitioners, in addition to meeting the other formidable demands of providing quality representation to individuals, must regularly fend off time consuming “ethics” probes from the disciplinary committees over chicken shit allegations.  That’s exactly what the Rocchio matter was, and that’s why he got mad.

He was right and the disciplinary committee and the referee and the court were all wrong.  But he’s the one who’s going to get a black mark and whose “career”, whatever that is, is going to be damaged.

The supreme court noted that but for Rocchio’s “conduct during the disciplinary process” it would have only imposed a public reprimand or an even lesser sanction for the underlying minor “violation.” But after hearing what Rocchio had to say about her and the other players in the disciplinary process, the hearing officer had recommended that the supreme court suspend Rocchio from the practice of law in Indiana for at least one year without automatic reinstatement. (The phrase “without automatic reinstatement” is a big deal.) The majority of the supreme court concurred with her recommendation but found a period of 180 days without automatic reinstatement to be “sufficient.” (Even the lone dissenter would have imposed a 30 day suspension without automatic reinstatement.)

Compare the disposition of Rocchio’s disciplinary matter with another Indiana Supreme Court disciplinary ruling issued the same day, In the Matter of Heather McClure O’Farrell, and especially with the dissent of the Chief Justice and another Justice, who instead of the public reprimand imposed by the majority would have imposed a period of suspension without automatic reinstatement, apparently because the respondent’s attorney had vigorously argued that the facts she had stipulated to did not constitute misconduct and had thereby demonstrated that she was “unrepentant.”

Now, contrast both of these disciplinary opinions with a third disciplinary opinion issued by the Indiana Supreme Court just yesterday, In the Matter of the Honorable William E. Young, Judge of the Marion Superior Court, and with one of the things the Honorable Judge did to richly deserve sanctions:

Throughout 2009, Respondent engaged in a practice of imposing substantially higher penalties of $300 to $400 in fines, plus court costs, against traffic-infraction litigants who exercised their right to trial and lost, as compared to those who pleaded guilty and waived their right to trial. Indeed, in one instance, when a traffic-infraction defendant came before the bench and was trying to decide whether to admit or deny her infraction, Respondent stated, “I’m a great listener but sometimes I’m very expensive.”

Respondent admits he engaged in this practice in part because he believed the litigants on whom he imposed the higher fines should not have pursued trials, and in part because he wanted to discourage other litigants from exercising their constitutional rights to trials.

By agreement of the Honorable Judge and the Commission which brought the disciplinary action against the Honorable Judge, which the supreme court accepted, the Honorable Judge was suspended from office without pay for a mere 30 days with automatic reinstatement. But in a separate opinion concurring in the result, the Chief Justice, apparently without intentional irony, wrote:

I would expect that in the absence of a settlement, this case should have resulted in a lengthier suspension. The per curiam understates the willfulness of the Respondent’s conduct and the damage it has done to the public standing of the judiciary. Fortunately, the overwhelming number of Indiana’s judicial officers strive demonstrably toward a much higher standard.

Needless to say, that last sentence quoted above from the Chief Justice’s opinion is just that — an opinion.

The Chief Justice concludes:

Still, as in other litigation settings, there is much to be said for the benefits of settlement, so I have joined in approving the agreement tendered by the parties.

I sure wish the supreme court had approved the agreement I made with the Indiana Disciplinary Commission for an “administrative reprimand” in my old disciplinary case, and that the Chief Justice hadn’t then dissented from the supreme court’s approval of the agreement I subsequently made with the Commission for a private reprimand, on the grounds that he believed the sanction to be “inadequate.”

“Tom,” she said.  “What you aimin’ to do?”
He was quiet for a long time.  “I been thinkin’ how it was in that gov’ment camp, how our folks took care a theirselves, an’ if they was a fight they fixed it thirself; an’ they wasn’t no cops wagglin’ their guns, but they was better order than them cops ever give. I been a-wonderin’ why we can’t do that all over.  Throw out the cops that ain’t our people.  All work together for our own thing–all farm our own lan’.”
“Tom,” Ma repeated, “what you gonna do?”
“What Casy done,” he said.
“But they killed him.”
“Yeah,” said Tom. “He didn’ duck quick enough.  He wasn’ doing nothin’ against the law, Ma. I been thinkin’ a hell of a lot, thinkin’ about our people livin’ like pigs, an’ the good rich lan’ layin’ fallow, or maybe one fella with a million acres, while a hunderd thousan’ good farmers is starvin’. An I been wonderin’ if all our folks got together an’ yelled, like them fellas yelled, only a few of ’em at the Hooper ranch —-”
Ma said, “Tom, they’ll drive you, an’ cut you down like they done to young Floyd.”
“They gonna drive me anyways.  They drivin’ all our people.”
“You don’t aim to kill nobody, Tom?”
“No. I been thinkin’, long as I’m a outlaw anyways, maybe I could — Hell, I ain’t thought it out clear, Ma.  Don’ worry me now.  Don’ worry me.”
They sad silent in the coal-black cave of vines.  Ma said, “How’m I gonna know ’bout you? They might kill ya an’ I wouldn’ know.  They might hurt ya. How’m I gonna know?”
Tom laughed uneasily, “Well, maybe like Casy says, a fella ain’t got a soul of his own, but on’y a piece of a big one — an’ then —-”
“Then what, Tom?”
“Then it don’ matter.  Then I’ll be all aroun’ in the dark.  I’ll be ever’where — wherever you look.  Wherever they’sa fight so hungry people can eat, I’ll be there.  Wherever they’s a cop beating up a guy, I’ll be there.  If Casy knowed, why, I’ll be in the way guys yell when they’re mad an’ — I’ll be in the way kids laugh when they’re hungry an’ they know supper’s ready. An’ when our folks eat the stuff they raise an’ live in the houses they build — why, I’ll be there.  See? God, I’m talkin’ like Casy.  Comes of thinkin’ about thim so much.  Seems like I can see him sometimes.”
“I don’ un’erstan’.” Ma said.  “I don’ really know.”

“Me neither,” said Tom.  “It’s jus’ stuff I been thinkin’ about.”