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

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

The dissenters essentially accuse the majority of Gratuitous Violence.

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

UPDATE: The Los Angeles Times reports:

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

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

According to a Los Angeles Times story from last year:

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

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

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

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.

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.