But back to John Regan’s far more interesting post on Categories. He writes:

This is one reason it is important to keep the heart of a child even in manhood.  Because when the young notice you have to pay attention; but typically, this early warning of trouble ahead is met with disdain and disparagement by those whose hearts have become too grown up, too set in their ways.  To them the question of whether the categories themselves require revision or revisiting is off the table.  If there is a problem it resides in the complainers.  The whiners.  The slackoisie.

I suppose my incessant fantasizing on this blog about Cowboys and Indians is pretty childish. At least I hope it is.

That is some lawyering. Good for Norm for jumping in, and godspeed to you and Sephora.

And good on Marc Randazza for not deleting this comment on a post in which he professed his atheism and asserted, inter alia, that “[i]f you believe in a magic space zombie Jew, you’re not rational enough to be president either”:

Hmmm… I would then assume that you could heap the same scorn on someone for their lack of beliefs…. so I will. The writer of this blog is a pompous ass know it all who thinks that his way is the right way. He is no better than those he despises. But….. that’s the way it always is.

Have a nice day.

UPDATE: I want to make clear that I don’t agree with the comment posted on Marc’s blog. I actually agree with the main point of Marc’s post. I just think some bloggers should have thicker skins.

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.

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.

Then, Scott Greenfield tried to kick John Regan’s ass and “revealed” that John Regan was also commenter “John R.”.

Then, Bennett updated his post to write of John Regan that “it might be better for the criminal-justice system if he stays in Canada.” Bennett’s reversal of his reversal was based on the following comment left by John R. at Greenfield’s blog in 2010, which both Greenfield and Bennett at the time adjudged “scary bad”:

In my opinion there’s only one way to reliably win for a criminal defendant at trial: you have some evidence that is devastating to the prosecution’s case, you disguise it so that neither the judge nor the prosecutor knows what its significance is, you get it into evidence on some other ground, and you don’t say another word about it until you close.

I tried to leave a comment on Bennett’s post countering what seemed to me an unfair assessment of John R.’s 2010 comment, in which I repeated something I wrote here about Vincent Bugliosi’s account of his successful defense of a client charged with aiding and abetting her lover in the murder of another couple on a deserted atoll in the Pacific in 1974:

What was especially noteworthy [about the closing argument] were some very compelling inferences from the evidence Bugliosi drew for the jury, inferences which had not occurred to me despite my familiarity with the evidence from the first part of the book. In that important sense the closing argument presented a “surprise ending” in line with the best detective stories. Something that was staring you in the face all along is finally revealed in its true significance.

Bennett deleted my comment like a little bitch. After I told him to fuck off, he wrote: “Excellent. Nutjobs of the world unite. You have nothing to lose.” If I’m not mistaken, Bennett is calling me a loser. He’s saying that, in contrast to him, a rich man with everything to lose, I have nothing and am nothing. I take that as a compliment.

On a lighter note, Mike at Crime & Federalism has a post up today quoting Benjamin Franklin on the Socratic Method:

While I was intent on improving my language, I met with an English grammar (I think it was Greenwood’s), at the end of which there were two little sketches of the arts of rhetoric and logic, the latter finishing with a specimen of a dispute in the Socratic method; and soon after I procur’d Xenophon’s Memorable Things of Socrates, wherein there are many instances of the same method.

I was charm’d with it, adopted it, dropt my abrupt contradiction and positive argumentation, and put on the humble inquirer and doubter. And being then, from reading Shaftesbury and Collins, become a real doubter in many points of our religious doctrine, I found this method safest for myself and very embarrassing to those against whom I used it; therefore I took a delight in it, practis’d it continually, and grew very artful and expert in drawing people, even of superior knowledge, into concessions, the consequences of which they did not foresee, entangling them in difficulties out of which they could not extricate themselves, and so obtaining victories that neither myself nor my cause always deserved.

I continu’d this method some few years, but gradually left it, retaining only the habit of expressing myself in terms of modest diffidence; never using, when I advanced any thing that may possibly be disputed, the words certainly, undoubtedly, or any others that give the air of positiveness to an opinion; but rather say, I conceive or apprehend a thing to be so and so; it appears to me, or I should think it so or so, for such and such reasons; or I imagine it to be so; or it is so, if I am not mistaken.

This habit, I believe, has been of great advantage to me when I have had occasion to inculcate my opinions, and persuade men into measures that I have been from time to time engag’d in promoting; and, as the chief ends of conversation are to inform or to be informed, to please or to persuade, I wish well-meaning, sensible men would not lessen their power of doing good by a positive, assuming manner, that seldom fails to disgust, tends to create opposition, and to defeat every one of those purposes for which speech was given to us, to wit, giving or receiving information or pleasure. For, if you would inform, a positive and dogmatical manner in advancing your sentiments may provoke contradiction and prevent a candid attention.

If you wish information and improvement from the knowledge of others, and yet at the same time express yourself as firmly fix’d in your present opinions, modest, sensible men, who do not love disputation, will probably leave you undisturbed in the possession of your error. And by such a manner, you can seldom hope to recommend yourself in pleasing your hearers, or to persuade those whose concurrence you desire.

I commented: “The so-called blawgosphere would be a bigger place if its denizens took Franklin’s thoughts on the Socratic Method to heart.”

The conviction remains a total outrage, although I’ll wager the young men who were wrongfully convicted are pleased that their lawyers didn’t go on strike.

I commented in response:

Do I detect a hint of reversal in attitude toward Strike Lawyer? I note that with respect to the particular case at issue Strike Lawyer has done the very opposite of go on strike. If there is criticism to be made of him, it’s for not letting the case go, for not accepting the “finality” valued by the criminal justice system, for looking to extra-judicial avenues of appeal that from my perspective would seem to have absolutely no prospect of practical success (but I don’t know the whole story). Now, with respect to the criminal justice system, with respect to taking on and fighting other cases, with respect to his profession as a lawyer, he may well have said to hell with it, but that’s his prerogative. There is a logic to it. There is a logic to being unable to accept and abide certain injustices, although this inability may be peculiarly strong in certain human beings. And once one recognizes this about oneself, recognizes that one case can kill you, recognizes that you are the type of person who will go down with the ship, recognizes that whether one is killed depends entirely upon the judgment of judges one doesn’t trust or respect, it may become logical to leave other battles to more detached souls.

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. . . .”

Two things struck me from afar about why the defense won this case, and both come down to rules broken by Casey Anthony’s lawyer. If Mr. Baez had tried the case according to the textbook, he might well have lost it.

According to Norm, these two unconventional things were: (1) laying out in opening statement and arguing for in summation a theory of how Casey’s daughter died, even though he kept Casey from testifying and wasn’t able to offer any actual evidence supporting this theory at trial; and (2) arguing to the jury that the case against Casey was not strong enough to support a penalty of death, even though punishment is not supposed to be a consideration during the guilt phase of trial.

Real the whole thing, as well as Norm’s initial reaction to the verdict yesterday.

Second, “Strike Lawyer”:

Reasonable doubt is more tricky than the talking heads I have seen let on so far. The way it works is not that you just point out holes in the prosecution’s case and tell the jury they don’t know, so they have “reasonable doubt”. You have to – and this was part of the brilliance of the defense strategy here – offer a competing narrative, and preferably a competing villain as well. Here the defense did both: they had a competing narrative (the accidental drowning) and the competing villain (George Anthony), of whom the one alternate juror that has answered questions said that he was “hiding something”.

Read the whole thing.

As I see it, the defense didn’t need to offer actual evidence supporting its competing narrative, so long as its competing narrative wasn’t refuted beyond a reasonable doubt by the evidence that was offered. It made sense for Baez to assert his competing narrative in opening statement, even if he knew that Casey wouldn’t testify and that George would deny on the stand the narrative’s truth (and that therefore Baez would be unable to offer actual evidence supporting the narrative), because it was probably best to get the competing narrative in front of the jury as early in the trial as possible, and because George’s denial of the narrative’s truth was in a way itself equivocal evidence supporting the narrative. You expect a villain to deny his villainy.

I didn’t see the jury voir dire in this case, but the same expectation — that a villain will deny his (or her) villainy — is commonly used to explain to prospective jurors why they shouldn’t hold it against the defendant if the defendant doesn’t testify: “What would the defendant have to gain by testifying? Regardless of her guilt or innocence, she knows that you know that of all the people who will appear in this courtroom during the course of this trial, she has the greatest motive to lie.”

So presumably the jury had been conditioned by Baez not to hold it against Casey if she didn’t testify, and George’s denial of the narrative’s truth didn’t count for much with the jury for the same reason Casey’s affirmation of it wouldn’t have.

It wouldn’t have been sufficient, though, to simply argue in summation that the competing narrative could have happened, and that the prosecution hadn’t proved beyond a reasonable doubt that it didn’t. Baez needed to assert that it did happen, even if the balance and bulk of his summation was spent pointing out the holes in the prosecution’s case. In an important sense, then, he was Casey’s star witness, and it was probably by winning the credibility contest with prosecutors that he won the case.

By turning this case into a capital prosecution, prosecutors ensured jurors would have to be “death qualified” and thus would know from the outset that prosecutors wanted Anthony executed for her alleged crimes.  Though sometimes death-qualified juries may show a greater willingness to convict, here I suspect that the death-qualification process could have primed the jurors to expect a forensic smoking gun showing conclusively that Casey Anthony murdered her daughter in cold blood.  When no such smoking gun was presented by the prosecution, the jurors may have ultimately been much more willing (and perhaps even eager) to find reasonable doubt on all serious charges.

Bryan Brown:

Today’s verdict is yet another sign on the road to national perdition.  The circumstantial case agaisnt Casey was very strong — darn near ironclad.  I doubt the jury actually doubted that Casey killed her baby.  They just get it –  it is o.k. to kill your babies in modern America if you want to.  No, not the best thing to do, or the nice thing to do, or even the right thing to do.  But hey, it is nothing to kill someone over, so Casey walks.   I guess little Caylee should just be thankful she had any life at all, that her mother “just chose life” and did not take Caylee to an abortionist.

“Strike Lawyer” (whose coverage of the trial was the best out there):

It boils down to one thing, in my view.  The case is won or lost in the closing arguments.  Baez was just extremely effective, he believed in his case and he was sincere.  And critically, and somewhat amazingly, he succeeded in turning the tables in the credibility contest.  He appeared to be honest and earnest, and he made the prosecutors look like overbearing and shallow assholes who trafficked in slogans, like “100% of accidental deaths are reported” and “two words:  pathological liar”.  Baez was a hell of a lot more likeable, and without a trace of theatricality or phoniness, so when he came up with a pithy phrase like “They’re trying to make you hate her because she’s a lying slut, appealing to your anger and emotion.”, it didn’t sound like sloganeering.  It sounded like he really meant it.

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.”