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

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

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.

Norm,

I am completely disgusted by Greenfield’s hit piece on you. The guy’s a raging hypocrite. Look at his very first blog post at Simple Justice. It clearly had in mind as an audience and was directed to potential clients.

I may be completely wrong about this, but it seemed your falling out with the part of the blawgosphere led by Greenfield coincided with your limited defense of me when most of the rest of the blawgosphere mocked me over my position on the topic of justice, and with Greenfield’s ridiculous banning of me from his stupid blog. (I’ve never quite understood the vehemence of the reaction to my posts on justice relative to the role of the criminal defense attorney. Locking a person up in a cage like an animal is presumptively unjust. That’s what a criminal defense attorney fights against. And locking a person up in a cage like an animal is even more unjust if that person is innocent.)

My understanding of your posts about Rakofsky is reflected in the email above [see below], in the comment I tried to post on your blog. You instinctively took the part of, and gave the benefit of the doubt to, an individual who was being attacked en masse by those in the blawgosphere possessed of a group mentality. His version of events in his complaint, if true, made the whole thing pretty interesting. Subsequently, it turned out that his version of events doesn’t really appear to match up with reality, and your second post acknowledged that. But those spouting off about Rakofsky earlier had no more information than you did.

My opinion of Gerry Spence just went up a notch, in light of his willingness to write an intro to your book despite the critical words you’ve had to say about him and the TLC in the past.

I wish I had the opportunity to learn the law from someone like you. My independent spirit, along with fate’s determination that I stumbled in law school upon the issue that obsessed me for several years out of law school, have left me in a position where I’ve had to try to figure things out on my own. It’s not easy. I do have a mentor I’m able to run things by, but I wished I could have really learned from a master.

I look forward to reading your book.

John A. Kindley

*****

What follows is the earlier email I sent (before I got this news) to Norm referenced in the email above:

Norm,

I tried to comment several times on your most recent post, but each time after submitting the comment I got a message saying all fields must be entered and to try again. Here’s the comment I tried to submit:

I too refrained from commenting on Rakofsky, but for reasons different than yours. I too a couple years ago took on an attempted murder case without having previously tried a case before a jury. I too thought that I could compensate for my inexperience by engaging experienced co-counsel (and telling the client I wouldn’t take the case without doing so). I too was ineffective at trial (although Rakofsky in his complaint denies his ineffectiveness, and unlike the rest of the blawgosphere I assume his denials are true without convincing proof to the contrary). I too worked very hard on my former client’s case, and recognized my client had grounds for a motion to dismiss which hadn’t occurred to my client’s previous experienced attorneys (a motion which the court of appeals ruled should have been granted but which is now before the supreme court on transfer). I too, while recognizing my own ineffectiveness at trial, also had to contend with prosecutorial misconduct and erroneous rulings by the judge which uniformly favored the prosecution. I too see in my ineffectiveness a silver lining, and an additional hope for my former client’s eventual freedom should his direct appeal unjustly fail.

John A. Kindley

I agree with Gerry Spence: If a prosecutor is doing his job right, he should never lose at trial.

[As I noted in this post, Spence wrote of his stint as a prosecutor in The Making of a Country Lawyer:

I finished my second term having tried many more cases, none of which I lost, not that such a record stands for much. With all the power prosecutors possess, they ought not lose cases. The wrong case, the unjust case should be rejected in the prosecutor’s office before he seeks an indictment.]

Mark replied:

I used to think that was right, but no longer.

Just as sometimes the defense has to try cases that are probably losers (and no criminal-defense lawyer worth his salt has never lost a jury trial), sometimes the State has to try cases that could go either way, and let the jury decide.

A prosecutor could easily bat 1.000 by selling the hard cases cheap. But that’s neither good lawyering nor, I suspect, justice.

Harris County (Houston, TX) Criminal Court No. 6 Judge Larry Standley commented:

RE: ” Gerry Spence: If a prosecutor is doing his job right, he should never lose at trial.” I simply do not understand this concept: Define “winning” (no Charlie Sheen quips please). Define losing.

As a former prosecutor for 14 years I received many “not guilty” verdicts that were actually “not proven beyond a reasonable doubt verdicts. No war story beating of my chest here – maybe a “better prosecutor” could have carried the day – but I didn’t and I still to this day feel “I did my job right”.

I dismissed and received no bills on many cases that some prosecutors might see as losing – but it was the right thing to do. My personal definition of justice is an abstract goal to strive for, but must be tempered by “The Rules”. In short it is this: “Justice: That state of affairs that exists when all people get what’s coming to them”.

In a simple black and white comparative example: For the innocent, justice would be never being arrested, charged or in the alternative a dismissal or not guilty. To the guilty, with all rules being followed by all parties in the C.J. System, that would be an arrest, charge and conviction.

Though imperfect, we still do have the BEST Criminal Justice System in the world. The best reward ANY prosecutor should ever hope for in this system is – at the end of the day, after doing their best, and following the rules – is that particular outcome of any particular case was the most “JUST” under the specific circumstances of that particular case give all the admissible evidence presented. In short – this concept of truly seeking justice ALONE, while doing one’s best, is the best and honest reward any prosecutor should ever need……..because we know it “ain’t for the money”.

I replied to Judge Standley:

Suppose a prosecutor is 80% sure, based on the evidence, that the defendant is guilty. Is it ethical for him to proceed to trial? I don’t think so, because he knows very well that 80% certainty is enough for many juries to convict. But if many juries are convicting based on 80% certainty, that means a whole lot of innocent defendants are being convicted. By regularly proceeding to trial in such circumstances, the prosecutor is guaranteeing that he’ll lose some trials that he should lose and — much worse — that he’ll win some trials that he should lose.

Suppose a prosecutor is 95% sure that the defendant is guilty — which is a little closer to what I think proof beyond a reasonable doubt requires. To my mind, a 5% doubt is still a reasonable doubt, and the prosecutor should [if he doesn’t dismiss the case outright] make an offer which would make it unreasonable for the defendant to proceed to trial. Now, in such circumstances you’ll sometimes have defendants who, either because they’re in fact innocent despite evidence showing it’s 95% likely they’re guilty or because they’re both guilty and unreasonable, refuse all reasonable offers and insist on proceeding to trial. Such a case might result in a guilty verdict. It might result in a hung jury. But if you get 12 jurors agreeing unanimously that the State didn’t prove its case beyond a reasonable doubt, especially given that jurors are notoriously not excessively fastidious about convicting people the State asks them to convict, I don’t see how that’s not a true black mark on the prosecutor’s record, and doesn’t call into question either the prosecutor’s trial skills or his wisdom in proceeding to trial in the first place. Prosecutors get to choose their cases, and there’s no shame in choosing them so that they virtually never lose. I’ve had the pleasure of visiting with the jury in the jury room along with the prosecutor and the judge after the jury acquitted my client in less than 30 minutes, and hearing them pointedly ask the prosecutor in so many words whose bright idea it was to prosecute the case. Although I was happy and relieved to have won (I knew juries are capable of anything), there was no hand-shaking going on between me and the prosecutor. I was glad to see the jurors applying salt to the prosecutor’s fresh wound, to see them adding insult to [the prosecutor’s failed attempt to cause] injury.

Granted, a prosecutor who only proceeds to trial in cases he’s almost certain to win, and who offers very reasonable plea offers to defendants who are 95% likely to be guilty, risks being seen as insufficiently aggressive by the electorate. Such a prosecutor might also be unpopular among defense attorneys who like to occasionally try beatable cases. But it seems an unbeaten trial record would also be a nice selling point at re-election time, along with the savings to the county in resolving most cases without trial.

Even in slam-dunk cases the prosecutor can and should offer the defendant something as consideration for saving him and the county the trouble of trial, e.g., a cap on the executed portion of the sentence that is less than the maximum the judge could reasonably impose after the defendant is convicted at trial. The prosecutor is truly abusing his discretion if his intent is to force a slam-dunk case to trial so as to get more trial experience and/or to improve his trial win-loss record.

BTW, I’ve come up with a definition of Justice that is similar to yours: Justice is the absence of crime. The “justice” that is doled out by the criminal “justice” system is Justice only in a derivative sense, i.e., only insofar as by deterrence, rehabilitation, [incapacitation] and/or (more controversially) retribution it tends towards or (more controversially) approximates the “absence of crime.” It is better that 100 guilty men escape than that 1 innocent suffer. The conviction of an innocent man is itself a crime. The escape of a guilty man is not.

I don’t mean to say by my comments above that a prosecutor who loses a trial is ipso facto a “bad” prosecutor. Marcia Clark and Christopher Darden, e.g., were of course right to try O.J. Simpson for murder, given the evidence against him. Although Vincent Bugliosi, among others, was highly critical of their performance at trial and argued that this is why Simpson got away with murder, it’s possible that Clark and Darden could have done everything right and still lost. Nevertheless, for the reasons stated above, such losses should be exceedingly rare. Bugliosi himself won 105 out of 106 felony jury trials during his career as a prosecutor. This conviction rate at trial was presumably due not only to Bugliosi’s ability and hard work but also to his discretion in deciding which cases to prosecute and what plea offers to make.