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.

It’s true, as Scott [Greenfield] observes with respect to what’s going on in Egypt today, that “Nature abhors a vacuum.” But it was the outgrown size of the Egyptian State combined with its unacceptability to the Egyptian people which is responsible for the size of the vacuum its disintegration is leaving. By monopolizing and concentrating power unto itself, the State makes itself appear indispensable. A thoroughly Jeffersonian polity would not have left such a vacuum, and indeed would not have so easily disintegrated.

Darian Worden at the Center for a Stateless Society expresses more fully what I was trying to say, in a post titled Build Counter-Power, Create an Authority Vacuum, republished in its entirety below:

The prospect of a state collapsing brings forth worries about a “power vacuum,” an unrestrained state of nature where chaos rules until the strong take over. But chaotic conflict is produced by efforts to seize power and exert power over other people. It is not the rejection of rulership, but the struggle to achieve rulership, that creates deadly conflict. The negation of authority, as advocated by anarchists, does not necessitate the chaotic mess associated with the phrase “power vacuum.”

Anarchy would mean that power is dispersed among individuals who would rather safeguard each others’ freedom than rule over each other. And if power is firmly in the hands of organized people then there is no power vacuum.

In politics, the word power generally signifies the ability of an individual or group of individuals to influence the decisions of others. Authority is an attempt to legitimate the exercise of power to compel obedience or allegiance to the higher ranks. Anarchists reject authority in favor of individual autonomy. Anarchy means that individuals have ultimate decision-making power over their own lives, and the only social arrangements recognized as legitimate are those that are based on consensual cooperation.

When authority amasses and exercises political power against people, it creates conflict. Hence the axiom that “anarchy is order, whereas government is civil war.”

The very concept of having no rulers often encounters fears of a power vacuum – an unsustainable, dangerous situation that can only end in the re-establishment of rulers. But the rejection of authority does not mean that power is up for grabs — it means that power is widely distributed, making it harder for tyrants to usurp.

The practice of anarchism fills society with empowered individuals, diffusing power throughout society so that no authority can take it over. Interactions of free individuals – the everyday pursuit of needs and desires combined with the recognition that mutual respect for freedom is the best way to realize needs and desires – build counter-power. Organizations of social cooperation that are established for the mutual benefit of participants, not for the power of some at the expense of others, help keep power dispersed in a fashion that safeguards individual liberty. Institutions of authority can be subverted or seized for the purpose of dispersing power.

Certainly, anarchy requires a number of people to accept the idea, but this true of any state of affairs that does not rest on brute force alone. A state can only exist so long as it can muster a significant level of allegiance. Every individual has the decision of whether to obey the decrees of those trying to amass power, or to follow the logic of appeals to disperse power. The creation of dispersed power establishes a basis from which authority can be effectively challenged.

When individuals possess power over their own lives, it means they have no personal power vacuum that tyrants could exploit. Power held by ordinary individuals gives them a greater stake in a functioning society as well as a more effective means of preventing social catastrophe.

The rejection of authority, as advocated by anarchists, does not mean that a nightmare scenario associated with the phrase “power vacuum” is likely. It means the power that authority monopolizes will be dispersed among the people.

Julian Heicklen was born at an early age. At 8 days, he was circumcised. This was so traumatic that he did not walk or talk for a year.

Via Darian Worden at the Center for a Stateless Society, the septuagenarian libertarian activist has been criminally charged in Manhattan’s federal district court with “jury tampering,” apparently for distributing FIJA literature about jury nullification outside federal courthouses. Before his jury nullification outreach he was known for participating in weekly Marijuana Smoke Outs in front of the main gates at Penn State University, where he was a professor.    

Professor Heicklen has been arrested numerous times for distributing information about jury nullification on federal courthouse property. On 2009-11-09, not only Heicklen but also a videographer who was recording his arrest outside a federal courthouse in Manhattan were both arrested. The arrest of the videographer resulted in the New York Civil Liberties Union suing the federal government on his behalf and this settlement. Here’s the footage of these arrests:

//www.youtube.com/watch?v=8HyfbEyL8A0

//www.youtube.com/watch?v=W8Jk14b6PvM

Heicklen has apparently brought his own civil suit against the federal government for his arrests. After a story published in the New York Post suggested that Heicklen was high on pot when he wrote this letter to the federal judge presiding over his civil suit in defiance of the judge’s order to stop sending him letters, Heicklen wrote on his website:

This could be a breakthrough moment in or movement if we can keep its attention. I urge each of you to write a letter to the Post. Garry Reed has already done so: http://www.examiner.com/libertarian-news-in-national/ny-post-treats-libertarian-activist-as-loony-pothead.

It makes no difference if you praise me, denigrate me, say that I have good intentions but am a nut, or say that I am a nut but sometimes do something good. The New York Post does not care. All it wants to do is increase circulation. If there is interest in the situation, it will continue to publish the letters. I also do not care what you say. Bad publicity is better than no publicity. Just spell my name right.

I’m going with the good-intentioned-nut-who-sometimes-does-something-good theory. Here is his report on the jury tampering charge:

On January 11, 2011, I was notified by summons that I have been criminally charged with jury tampering. The moment of truth has arrived. My response to the court is given at the end of this E-mail. The dance begins. Finally we will have the opportunity to inform the jury in the U. S. District Court: Southern District of New York that the judges have routinely lied to it.

This trial could be the defining trial of the decade. We must not blow it. I will represent myself as counsel pro se. However, I am asking all the attorneys and others knowledgable in the law on the Tyranny Fighters mailing list receiving this E-mail to join as co-counsels. Particularly, I hope that the American Jury Institute/Fully Informed Jury Association and the American Civil Liberties Union join me to provide advice, guidance and strategy.

I maintain the role as lead counsel, because I can and will say and do things that could disbar any attorney.

In addition, I request that all of you that write for news outlets, have radio shows, and/or blogs will publicize this trial to the hilt. I intend to provide a blow by blow flow of trial information. Be sure to send your material to major news outlets. The rest of you can write letters-to-the editor of your local newspapers and magazines with trial information as it becomes available.

I want this to be the ultimate public trial.

As several supportive but concerned commenters on Heicklen’s report note, his presumably already-filed “response to the court” appears to demonstrate serious ignorance of the laws and procedures being deployed against him, and his decision to retain a fool for his lawyer appears exceedingly . . . foolish.

I’m not going to judge Professor Heicklen, although he does seem intent on shooting himself in the foot to the detriment of both himself and his noble cause.

As I’ve previously suggested, the restoration of the right of juries to judge the justice of the laws is perhaps our single most necessary political reform. Repealing the income tax is a close second, but restoring the independence of juries would seriously if not fatally subvert the State’s ability to prosecute tax “offenders” and to continue extorting its revenue.

A New York federal district court judge other than the one Heicklen has been fighting with, the great Jack Weinstein, struck in his gutsy and brilliant 236-page decision in U.S. v. Polizzi a strong blow for jury independence.

More recently, potential jurors being selected for a criminal case in Missoula County, Montana, in what the prosecutor called a “mutiny” and Jonathan Turley described as an act of pre-trial jury nullification, just said no to the idea of convicting a defendant for possessing a small amount of marijuana, resulting in the trial judge calling a recess and the lawyers working out a less onerous plea deal.

The Independent Institute’s Mary Theroux, describing a lively exchange between David Friedman and Judge Alex Kozinski of the Ninth Circuit Court of Appeals at a recent Institute-sponsored forum, in which Kozinski opined that jury nullification is “an abomination” and “a crime” and that “juries should be told in no uncertain terms that if they can’t apply the law as instructed by the judge, they ought to get off,” astutely observed that the potential jurors in Missoula “acted as Judge Kozinski said they ought,” and raised an excellent question:

Is mutiny the new nullification?