What recently changed my mind about these cases is the Indiana Supreme Court’s decision in Tyrus Coleman v. State (2011), and the utter failure of these cases to do Mr. Coleman (whom I represented at trial) any good. Now when I read Yeager the only significant thing about the case seems to me to be the fact that the defendant, Mr. Yeager, was an Enron executive.

The Indiana Supreme Court’s decision in Mr. Coleman’s case came less than a week after that court rendered its infamous decision in Barnes, which purports to abrogate the right of the people to reasonably resist unlawful police entry into their homes. I lament the fact that Barnes has gotten all the attention and public vilification, while the court’s disposal of Coleman has gotten none, even though both cases equally exude the pernicious implication that only police officers are entitled to use force to defend themselves or others and that the only allowable recourse of a man facing armed and dangerous men who are in the act of invading his property is to call the police.

In the wake of the political fallout over Barnes the Indiana Attorney General has put on his white hat and joined the chorus condemning Barnes:

I support a rehearing of the case to allow for a more narrow ruling that would continue to recognize the individual right of reasonable resistance to unlawful entry. In our brief and argument to the Indiana Supreme Court last fall, my office did not advocate for the type of ruling the Court issued last week.

Here’s my response to that, borrowing from Eric Turkewitz: “Go shit in your white hat and pull it down over your ears.” Your office didn’t have to petition the Indiana Supreme Court for transfer after the Indiana Court of Appeals rendered its eminently reasonable decision that would have freed Tyrus Coleman — an innocent man — on the grounds of collateral estoppel, but it did.

And speaking of going above and beyond the call of duty, here are the principal considerations which normally govern the Indiana Supreme Court’s decision whether to grant transfer:

(1)     Conflict in Court of Appeals’ Decisions. The Court of Appeals has entered a decision in conflict with another decision of the Court of Appeals on the same important issue.

(2)    Conflict with Supreme Court Decision. The Court of Appeals has entered a decision in conflict with a decision of the Supreme Court on an important issue.

(3)    Conflict with Federal Appellate Decision. The Court of Appeals has decided an important federal question in a way that conflicts with a decision of the Supreme Court of the United States or a United States Court of Appeals.

(4)    Undecided Question of Law. The Court of Appeals has decided an important question of law or a case of great public importance that has not been, but should be, decided by the Supreme Court.

(5)    Precedent in Need of Reconsideration. The Court of Appeals has correctly followed ruling precedent of the Supreme Court but such precedent is erroneous or in need of clarification or modification in some specific respect.

(6)    Significant Departure From Law or Practice. The Court of Appeals has so significantly departed from accepted law or practice or has sanctioned such a departure by a trial court or Administrative Agency as to warrant the exercise of Supreme Court jurisdiction.

You will search the Indiana Supreme Court’s published opinion in Coleman in vain for any new explication of the law of collateral estoppel, any explanation of how the Indiana Court of Appeals’ decision had “departed from accepted law or practice” (let alone “significantly”), or any hint of the above-listed “considerations” which normally govern whether the Indiana Supreme Court grants transfer. Even though the first jury in Coleman’s case had acquitted him of murder and hung on the attempted murder charge (which in a just world and a just legal system would establish reasonable doubt as to Mr. Coleman’s guilt on both charges), and even though there was nothing contrary to established law in the Court of Appeals’ decision, the “Justices” on the Indiana Supreme Court chose to condemn Mr. Coleman to 45 years in prison for doing something that I believe with every fiber of my being was completely justified.

Six or so months ago I wrote about the malleability of truth at trial.  While I have since taken down this blog entry on the advice of Virginia bar counsel, I continue to believe that the objective truth is rarely, if ever, introduced at trial.

I commented:

If Virginia bar counsel advised you to take down a blog entry “about the malleability of truth at trial,” and you acted on such advice, I’m probably not long for this profession based on many of my own blog entries. Yet, believe it or not, I believe everything I’ve written is protected by the First Amendment, and don’t go out of my way to court trouble, and do give some thought to whatever uncertain and slippery line might be out there in the ether. It seems the real danger area is appearing to call into question the “integrity” of a specific judge, which I try to steer clear of. The rules of professional conduct, at least in my state, forbid making a “statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge.” Supposedly, though, we’re still allowed to criticize judicial decisions. But doesn’t any such criticism — to the degree it asserts the decision is contrary to the law and/or the facts — implicitly concern either the qualifications or the integrity of the judge(s) making the decision?

[I mean, what if I were to say, as the Indiana Supreme Court recently said about a decision by a local trial judge, that “there is not a single shred of evidence” supporting a judge’s decision? How different, really, would that be from what got this Indiana attorney disciplined by the Indiana Supreme Court?]

Jamison replied to my comment:

I have read your blog, and, yes, depending on the rules in Illinois [I assume he meant Indiana], you do seem to skate much closer to the edge than I.

The Indiana Rule of Professional Conduct I quoted in my comment above is Rule 8.2. The official “Comment” on this Rule states:

Assessments by lawyers are relied on in evaluating the professional or personal fitness of persons being considered for election or appointment to judicial office and to public legal offices, such as attorney general, prosecuting attorney and public defender. Expressing honest and candid opinions on such matters contributes to improving the administration of justice. Conversely, false statements by a lawyer can unfairly undermine public confidence in the administration of justice.

Here’s my dilemma: The very purpose of this blog is to do my small part to “undermine public confidence” in the State — which happens to be a time-honored goal of a whole lot of American political speech, dating all the way back to Thomas Paine’s undermining of the colonial public’s confidence in the British Empire. And I’ve got news for you: The judicial branch is very much a part of the State.

I’ve recently said here that the President of the United States is a “contemptible hypocrite.” I’ve also recently said here of certain members of the Indiana legislature that they “make me sick” and are either “ignorant . . . rubes . . . or something far worse.” But I don’t believe I’ve said on this blog anything similar about any specific, identifiable judges. I haven’t, for example, said here anything as defamatory as what Indiana Governor Mitch Daniels (a member of the Indiana Bar) said when he publicly called a decision by the Indiana Court of Appeals “transparently partisan.” (The Indiana Disciplinary Commission, so far as I know, has declined to discipline the Governor for those statements.) I haven’t on this blog said about any specific, identifiable judges what Justice Scalia said about his fellow judges on the U.S. Supreme Court when he wrote in a dissenting opinion that “[s]eldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members.”

What I have done here is to try to “undermine public confidence in the administration of justice.”

Fairly.

“Punishing” a defendant for refusing to “accept responsibility” by admitting guilt is completely out of line. It is, however, appropriate to “reward” a defendant who saves the state the trouble and expense of trial by pleading guilty. A guilty-in-fact defendant might internally be genuinely remorseful for what he’s done — but this laudable spiritual attitude doesn’t mean he’s morally bound to accept as a good thing the expiation of his sins the state has in mind for him. The state — quite appropriately — commonly calls into question the sincerity of any remorse expressed by the defendant at sentencing, and argues that the defendant is “sorry” he got caught. We’d all be better off if the “acceptance of responsibility” charade was taken completely off the table.

Mark Draughn in a post about Jamison’s asks:

Who among us, if caught committing a crime, wouldn’t be willing to apologize in as sincere-sounding a manner as we possibly can, if we’re told it could knock months or even years off our sentence? . . .

You know who’s going to have trouble accepting responsibility? People who are factually innocent. . . .

Requiring defendants to “accept responsibility” is a policy that rewards the truly guilty while punishing the truly innocent. . . .

To me, it feels as if the courts are engaging in a policy of collective moral cowardice. It’s as if judges don’t really believe the system works. The jury has been told to trust the system, and they do, rendering their verdict of guilt based on what they saw and heard during the trial. For the judge, however, that’s not good enough. He’d like to tie it up all neat with a confession just to be sure, even if the confession is coerced by a threat of a tougher sentence.

I can understand why police want to make a suspect confess. It’s part of the investigative process, part of building a case. But this practice of pressuring a person to confess after conviction reminds me of nothing less than the Moscow show trials under Stalin, when those accused of crimes against the state were coerced into confessing to whatever crimes they had been convicted of in the rigged trials.

Jeff Gamso comments on Mark’s post:

And there’s not supposed to be a penalty for exercising your constitutional right to trial. But if you insisted on going to trial, it’s hard to say that you were accepting responsibility, so the sentence goes up. Not for going to trial, but for not pleading guilty.

A person who is in fact guilty of a crime has not only no legal obligation but also no moral obligation to do harm to himself by confessing his guilt to the state and facilitating his own conviction and punishment at the hands of the state. It is therefore entirely inappropriate to punish at sentencing a defendant who insisted on going to trial for a non-existent moral failing intrinsic to the defendant. On the other hand, the public does have an entirely legitimate interest in resolving criminal cases by plea rather than trial, based not only on the public expense of trial, but also on the remote possibility that a jury might fail to convict a defendant whom the evidence in fact proves is guilty beyond a reasonable doubt. It therefore behooves the prosecution in plea bargaining and/or the judge at sentencing to give defendants who plead guilty some incentive and consideration for saving the public the expense and the risk of trial. Such consideration has nothing to do with the moral blameworthiness or praiseworthiness of the defendant.

This is still, as Jeff Gamso calls it, a “nasty” business, and still stinks of a “trial tax,” since the bottom line is that a defendant who is convicted after trial is likely to be sentenced more “harshly” than if he’d pled guilty, even though defendants who are convicted after trial and defendants who plead guilty “deserve” the same sentence. (It can be safely assumed that defendants who plead guilty aren’t motivated to do so by the desire to save the public the expense and risk of trying them, nor should they be.) But consider: A person who commits a crime but isn’t caught goes free, even though he “deserves” punishment. A person whom a prosecutor suspects is guilty but whom he believes a jury is only 50% (or less) likely to convict should also be allowed to go free (since a prosecutor must be himself convinced beyond a reasonable doubt by the admissible evidence that a defendant is guilty in order to ethically prosecute him, and a 50% likelihood of conviction just doesn’t cut it). If a 50% chance that a jury will fail to convict justifies a suspect going free entirely, a 1% chance that a jury will fail to convict justifies a suspect “going free” for some correspondingly lesser amount of time. (A judge can appropriately take this into account at sentencing even for a defendant who enters an “open plea” of guilty after the prosecution refuses to offer any plea bargain.) Obviously, after a defendant is convicted by a jury there is a 0% chance that a jury will fail to convict him. (On the other hand, I think it would be appropriate for a judge to take into account any residual doubt he may have about the guilt of a defendant who’s been convicted by a jury in sentencing him.)

The more ethically a prosecutor does his job — by only prosecuting defendants who given the admissible evidence are almost certain to be convicted after trial — the smaller should be the consideration necessary to induce a defendant to plead guilty, and the smaller the corresponding “trial tax.”

As I see it, the practical upshot is this: A convicted defendant who at sentencing tearfully expresses to the court and the victim his remorse for his crime should get no consideration from the judge in his sentencing decision for doing so. This protects wrongfully convicted innocent defendants who have nothing to apologize for, and has the incidental but not trivial benefit of ensuring that any such expressions of remorse are sincere.