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

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

(H/T Matt Brown)

“The 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.

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.

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.

Nuthouses are full of people who believe they are saviors, if only they can nail themselves to a cross. . . .

None is the gravest injustice ever, except perhaps the Holocaust.

In the same post Greenfield references an exchange he had in 2009 with Regan, then commenting under the handle “John R.,” on Greenfield’s blog. Coincidentally, back in 2009 I wrote a post here describing an earlier exchange between Greenfield and the same “John R.” on Greenfield’s blog.

I’ve been reading Lust for Justice: The Radical Life & Law of J. Tony Serra (2010), by Paulette Frankl. (Back in 2010 I nominated Serra “Most Admirable Living Lawyer.”) Somehow these excerpts from the book quoting Serra seem relevant to Greenfield’s attempted ass-kicking, or at least relevant to the theme of my last series of posts:

“My overwhelming ego probably is my central religious failing. Although I respect, intellectually, the concept of selflessness, I can interpret everything I do as an ego trip. For the most part, I seek high-publicity cases, and this is obviously to feed my need for publicity and self-aggrandizement. Even most of the free cases I do offer some kind of publicity factor, media attention, or psychological hedonism; they bestow upon me what I’m going to call self-centered, egocentric, egotistic, and selfish motivation.

. . .

“Even my old clothes and old cars and modest living habits are a way of gaining attention. They’re a way of saying, ‘I’ll be more humble than you. I’ll manifest a greater degree of humility. Therefore, look at me.’

. . .

“I brag about my past use of cocaine and methamphetamine, and I’ll brandish my marijuana smoking before the world. But down deep, I practice with the divided mentality of a drug addict.”

. . .

“Some of the saddest words ever spoken to me came from my ex who said, ‘You give more time to those weirdoes and crazies and drug addicts than you do to your family and me.’

“Yes, I court that dimension because I’m metaphysically sullied. In my opinion, that’s the greatest indictment that I can bring upon myself.”

. . .

“Going into law and dropping so many notches down to the warrior image meant giving up the particular grace I had, let’s say, for interpreting poetry and philosophy. I surrendered all of that. I’m now nothing but a semantic sword! For me it’s not demons but guilt, unfulfilled destiny, the path not chosen, that I mentally revisit. I chastise myself for not being purer or more perfect. I chastise myself for being intrigued by the world of sensation and sensorium, for living in the fast lane in the neon-light jungle, for courting the more vicious experiences of life, dropping into drugs and living at the edges of my sensations, encapsulating them as my universe.

“That’s all a fall from grace. . . .”

//www.youtube.com/watch?v=TmnI0i-pLcM

//www.youtube.com/watch?v=bH3sSIOlT-w

But as a practical matter what do we do with these truths? The people are not yet ripe for Revolution, and if the history of the American Revolution and of the United States is any indication mere regime change does not necessarily lead to an increase in liberty or justice. We can hope for and/or fear the outright collapse of the State, but there’s little we can do to either bring about or prevent such a cataclysm, and if it were to happen there’s a very good chance a new band of robbers as bad as the ones in power now would arise to form a new State. No, as Thoreau wrote, only “when men are prepared for it” will they have the kind of “government . . . which governs not at all,” and men are not now prepared for it and probably won’t be for some time.

So again, what do we do with these truths? It is something simply to communicate them to others, since they are not often heard, and thereby do our part to hasten the day when men will be “prepared.” Doing so is not without risk in these United States, and I for one have to be concerned that just by expressing these truths publicly I place my license to practice law in jeopardy. (Fortunately, while I’ll defend on principle my right to practice law if it comes to that, I’m largely indifferent to the prospect of losing my law license, and part of me feels like the powers that be would be doing me a favor by disbarring me.)

Beyond that, I can commend as practitioners and exemplars of practical and constructive anarchism people like David Gross and J. Tony Serra.

But most importantly, we who love liberty can’t allow our lives to be defined and consumed by our opposition to the State. Our lives are greater than that. I’m reminded that life is both fleeting and “charged with the grandeur of God.” The State, like Sin itself, has been poisoning the world long before I got here, and more than likely will go on poisoning it long after I’m gone. Yesterday I happened to be reading an “autobiographical sketch” written by my favorite political philosopher, Albert Jay Nock, shortly before his death in 1945, and noted these words in the penultimate paragraph:

My only failure in emotional self-control which so far has seemed unconquerable is brought about by my hearing a certain order of music or by reading prose or verse that is composed in the grand style. Not even as a child have I ever shed tears for grief or pain, but a suite of Bach or certain quartettes of Haydn will put them beyond my control. So also will choruses of Aeschylus and Sophocles, as passages from English prose writers such as Bishop Butler, William Law, the Cambridge Platonists.

Nock’s reference to William Law in particular reminded me that Law was featured prominently in Aldous Huxley’s The Perennial Philosophy, a book which impressed me greatly when I read it a few years ago. Huxley wrote there of Law:

Granted that the ground of the individual soul is akin to, or identical with, the divine Ground of all existence, and granted that this divine Ground is an ineffable Godhead that manifests itself as personal God or even as the incarnate Logos, what is the ultimate nature of good and evil, and what the true purpose and last end of human life?

The answers to these questions will be given to a great extent in the words of that most surprising product of the English eighteenth century, William Law. (How very odd our educational system is! Students of English literature are forced to read the graceful journalism of Steele and Addison, are expected to know all about the minor novels of Defoe and the tiny elegances of Matthew Prior. But they can pass all their examinations summa cum laude without having so much as looked into the writings of a man who was not only a master of English prose, but also one of the most interesting thinkers of his period and one of the most endearingly saintly figures in the whole history of Anglicanism.) Our current neglect of Law is yet another of the many indications that twentieth-century educators have ceased to be concerned with questions of ultimate truth or meaning and (apart from mere vocational training) are interested solely in the dissemination of a rootless and irrelevant culture, and the fostering of the solemn foolery of scholarship for scholarship’s sake.

Huxley noted in his Bibliography of Recommended Books that “many of Law’s finest works, such as The Spirit of Love and The Spirit of Prayer, have not been reprinted in recent years and are hard to come by.” Thanks to the power of the internet, that is no longer the case:

The Spirit of Prayer

The Spirit of Love