First and foremost I know none of the individuals nor any of their family members involved in this. Having only followed coverage of this trial by this media. This is one of those traits of our court system that continues to perplex me. The Indiana Court of Appeals after careful consideration appeared to side with argument presented on behalf of Tyrus Coleman. The Indiana Supreme Court upon review of essentially the same evidence in turn rendered decision in total opposition to the lower court findings. Keep in mind, aside from the local trials these findings were not rendered by empaneled novice jurors. We as society are to then believe justice has truly been served in spite of the contradictions presented by our own court system.

“…Coleman had a criminal record and was on probation at the time, so, Rucker wrote, “We have not been persuaded that Coleman’s character or the nature of his offense requires a revision of Coleman’s sentence.”

Would it be unfair of me to mimic Justice Rucker’s apparent sense of logic as presented in the above quote and state that I have not found this session of the Indiana Supreme Court’s decisions logical when factored in with prior decision such as the ruling last week that one should not resist, but rather surrender self-protection and seek remedy later through the court if presented with illegal home invasion by authority; even if that authority is a K-9 officer gnawing on your flesh.

I borrow words that several years ago got an Indiana attorney suspended from the practice of law by the Indiana Supreme Court, and affirm that I am “left to wonder” by the Indiana Supreme Court’s opinion whether the Indiana Supreme Court was determined to keep Tyrus Coleman in prison for the next few decades of his life — separated from the young son whose life along with his own he honorably and courageously defended on his own property on the tragic day in question — “and then said whatever was necessary to reach that conclusion (regardless of whether the facts or the law supported that conclusion).” I don’t express this opinion “with reckless disregard as to its truth or falsity.” Rather, I base this opinion on a careful comparison of the “intellectual integrity” of the Court of Appeals’ opinion that would have set Tyrus free with the intellectual integrity of the Indiana Supreme Court’s opinion that condemns him to decades in prison, and on the observation that the Supreme Court’s opinion hardly addressed the argument that the Court of Appeals found convincing — if it can be said to have addressed it at all. I base this opinion, in part, on the Supreme Court’s factually inaccurate and self-refuting assertion that “although Coleman had the opportunity to do so, he never used his cell phone to contact the police and inform them that two armed and dangerous men were on his property.” (Coleman had no opportunity to contact the police during the three or so seconds it took the second of these two armed and dangerous men, Anthony Dye, to march up to within “close range” of Coleman after first appearing in Coleman’s back yard.) I base this opinion, in part, on the Supreme Court’s factually inaccurate and baseless assertion that Coleman and Dye were “friends.” I base this opinion, in part, on the Supreme Court’s omission of the critical and undisputed fact that Coleman knew that Dye had previously served time in prison for shooting at a police officer. (Dye himself is currently serving a prison sentence for being a “serious violent felon” in possession of a handgun when he strode onto Coleman’s property.) I base this opinion, in part, on the Supreme Court’s treating as an aggravator the fact that, when Coleman fired his weapon while standing directly in front of the only door to his garage, Coleman’s young son was inside that garage. I base this opinion, in part, on the Supreme Court’s factually inaccurate and misleading assertion that “After Dye was immobilized and fell to the ground, Coleman fired again striking Dye in the chest.” This clearly implies, falsely, that Coleman shot Dye after he was already on the ground and no longer a threat. (Earlier in the opinion, the court asserts: “As Dye stepped in front of Coleman, Coleman raised his gun and fired at Dye, who immediately fell to the ground. Coleman then shot Dye a second time.”) In fact, the evidence at trial and in the record clearly demonstrated the falsity of this implication. Dye “fell” forward to the ground and landed on his stomach. The round that struck him in the chest clearly was fired before Dye fell to the ground. Furthermore, the surveillance video which captured the entire incident clearly showed that, at the time this second shot must have been fired, Dye, as he was “falling” forward towards the ground, was not “immobilized” but was raising his gun and pointing it at Coleman.

I borrow the words of another man who was falsely and unjustly condemned by men less honorable than he:

Do not judge or go to law, do not punish, and you yourself will not be judged or punished. Forgive everyone and you will be forgiven; but if you judge others they will judge you also.

You cannot judge, for men are all blind and do not see the truth. How can you see a speck in your brother’s eye when there is dust in your own? You must first get your own eye clear-but whose eyes are perfectly clear? Can a blind man lead the blind? They will both fall into the pit.

And those who judge and punish are like blind men leading the blind.

Those who judge, and condemn others to violent treatment, wounds, mutilation, or death, wish to correct them, but what can come of their teaching except that the pupils will learn to become just like their teacher? What then will they do when they have learnt the lesson? Only what their teacher does: violence and murder.

And do not expect to find justice in the courts. To entrust one’s love of justice to men’s courts is like throwing precious pearls to swine: they will trample on them and will tear you to pieces.

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.

Under the circumstances before us, there is not a single shred of evidence indicating that this adoption could even remotely be considered to be in N.W.’s best interest.

As if that wasn’t already strong enough, the Supreme Court in its order adopting the court of appeals’ opinion went even further, going out of its way to observe:

Additionally, Indiana Code section 34-52-1-1 permits a court in any civil action to award attorney fees to the prevailing party if the court finds that either party: “(1) brought the action or defense on a claim or defense that is frivolous, unreasonable, or groundless; (2) continued to litigate the action or defense after the party’s claim or defense clearly became frivolous, unreasonable, or groundless; or (3) litigated the action in bad faith.” The record before us suggests one or more of these grounds may exist for an award of attorney fees.

As the prevailing party, Mother shall have sixty (60) days from the date of this Order in which to file in this Court a request for attorney fees incurred at trial and on appeal under section 34-52-1-1, should she choose to do so.

Think about what the Supreme Court is saying. It’s suggesting that the stepmother’s suit to adopt the child was so “frivolous, unreasonable, or groundless” that the mother should be entitled to the attorney fees she incurred not only after the court of appeals sided decisively with the mother and the stepmother nevertheless elected to pursue the case in the Supreme Court, but also to the attorney fees the mother incurred at trial and in the court of appeals, even though the trial judge ruled against the mother and for the stepmother. Indeed, it’s hard to imagine how the stepmother’s defense on appeal of her victory in the trial court or her petition to the Supreme Court on transfer to reinstate her victory in the trial court could be “frivolous, unreasonable, or groundless” unless her suit at the trial court level was itself “frivolous, unreasonable, or groundless” to begin with. According to common judicial wisdom, it’s not every day that a trial judge awards victory to a party whose suit is so “frivolous, unreasonable, or groundless” as to merit a punitive award of attorney fees to the other party.

But appellate judges and justices are no more innocent of such radical “fallibility” (to use the most politically correct word I can think of) than are trial court judges. They are all all too human, black robes notwithstanding. To borrow a phrase from the court of appeals’ opinion referenced above, “there is not a single shred of evidence indicating” that judges as a class are any more honest, wise or just than are lawyers and politicians generally; nor is there a single shred of evidence indicating that lawyers and politicians as a class are any more honest, wise or just than are people in general.

For evidence of such radical “fallibility” at the highest appellate levels, see, e.g., Alan Dershowitz’ criticism of this Indiana Supreme Court decision disciplining a lawyer for writing in a brief petitioning the Supreme Court to review a court of appeals’ opinion that “the Opinion is so factually and legally inaccurate that one is left to wonder whether the Court of Appeals was determined to find for appellee . . . and then said whatever was necessary to reach that conclusion (regardless of whether the facts or the law supported its decision),” and for then daring to “contest this [disciplinary] matter through all procedures available” (but also see the admirable opinions of the two dissenting Justices who believed the lawyer’s statement to be protected by the First Amendment); and this fascinating account of a bizarre series of events in 1988 in which one sitting Indiana Supreme Court Justice (who didn’t retire until 1990) publicly accused another sitting Indiana Supreme Court Justice (who was then and is now the Chief Justice) of being a “drunken, pot-smoking queer.”

I’ve been forced to ask myself: how does my advocacy of what might sound to him and others like meek submission to authority cohere with the radical philosophical anarchism I espouse on virtually every post of this blog? After all, haven’t I said, and meant, that the State is of No Authority? Why submit to its arbitrary rules, when we have better rules of our own?

Upon reflection, I think my position is coherent and that the key to its coherence is my realistic cognizance of (as opposed to respect for) power.

Readers may wonder how a professed anarchist who is also a lawyer handles himself in court. The answer in my case is, not much differently than other lawyers. I’d be very surprised if any of the judges I appear before had any inkling of my philosophical and political convictions. I do on principle refrain from addressing judges as “Your Honor” (although I still occasionally and inadvertently do so out of old lingering habit, and it’s not something I obsess about), but I doubt my abstention is noticed, since judges are also accustomed to being addressed simply as “Judge.”

I sincerely and genuinely believe that working as a fry cook in the employ of McDonald’s is inherently more “honorable” than working as a judge in the employ of the State. (An honest judge who is offended by this might turn the question around to examine it from the other side, and observe that it is judges as a class and not fry cooks as a class who have arrogated to themselves the title of “Honorable,” and ask himself why he thinks working as a fry cook is not honorable relative to his own work.) I have two basic reasons for this estimation: first, the salaries of judges, like that of all State employees, are paid from the proceeds of theft; and second and more importantly, even the most honorable of judges act dishonorably and criminally as often as they unjustly harm others by enforcing the State’s many unjust laws. Nevertheless, when I think after a hearing and/or a ruling that a judge has done right by the parties and my client, I don’t hesitate to say and mean “Thank you, Judge.” (I still generally don’t substitute the words “Your Honor,” for the same reason I wouldn’t say “Thank you, Your Honor” to an auto mechanic I’ve paid to fix my car who fixed it particularly well.) On the other hand, I’ve sat in a judge’s chambers with opposing counsel a week after the judge issued an order in a case and told the judge point-blank that I was well-aware of the very high burden my client would need to meet to overturn his order on appeal but that since his “findings of fact and conclusions of law” made “no sense” whatsoever I thought we could meet that high burden on appeal. There are a few judges I actually like. Most judges I like most of the time, and dislike some of the time.

I’ve heard of or encountered a few judges in my career for whom I have the utmost inward contempt. I predict that their deaths will be followed by as many years in Purgatory (and I’m not even Catholic), separated from God and their loved ones, as the years of undeserved separation and suffering they’ve inflicted on those unfortunate enough to be judged by them in this life. I’m comforted by my faith that God alone is Just and knows men’s hearts, and that Justice will be measured to them with the measure they’ve used.

Even so, I’m not openly contemptuous of even these judges when I have to deal with them on behalf of a client. The reason is simple: these assholes, at least in court, have far more power than me. So I’ll play their silly games and stand with everyone else when they enter the courtroom, but if they have even half a brain they know this compulsory outward show doesn’t signify that anyone standing thinks they’re “honorable.” I don’t bow and scrape before them, but neither do I outwardly exude the contempt I inwardly feel.

I have a similarly nuanced attitude towards the established laws and rules enforced in court. Some of these laws and rules are Lawful and some (such as those forbidding making an explicit nullification argument to the jury) are un-Lawful, but generally all of them will be enforced by power far greater than mine. While in court I comply with those laws and rules which are un-Lawful for the same reason I’d comply with the order of a robber holding a gun to my head to hand over my wallet. Bitching and moaning to a robber about the injustice of the robber’s order is likely to accomplish nothing good and to increase my chances of getting shot. And the interests of the client, not mine, are paramount.

These pragmatic considerations of course don’t prevent me (until such time as the First Amendment is repealed) from bitching and moaning about the injustice of it all on this blog and elsewhere, and from the time of Thomas Paine’s Common Sense it’s been an article of public faith that such bitching and moaning serves a purpose.

Every man is confronted on a regular basis (e.g., at least every April 15th) with the decision whether to comply with un-Lawful orders issued by men more powerful than he. It behooves each of us to be clear with ourselves in making such decisions what we hope to accomplish and what principle we’re serving if we decide to disobey. If it’s a question of “your money or your life,” most reasonable men will choose their lives over their money. If it’s a question of “your liberty or the lives of others your money will be used to take,” an honorable man might choose differently.

Third, anybody who’s ever given a speech or written a blog knows that it’s hard to make people understand what you want to say. Some people will misunderstand your point because they lack the background, or because they’ve had different life experiences, or just because they have a different way of thinking about the world. It’s hard work telling a story or making a point in a way that communicates clearly with most of your audience.           

And that’s just with normal, sane, and intelligent people. Throw in some real insanity, and there’s no hope of being understood properly. Crazy people are quite likely to hear something very different from what you’re saying. . . .

There’s no way to predict how someone like this will understand the things you say, and it’s madness to censor yourself in anticipation of every possible reaction. You just can’t let crazy people run your life that way.

Even as I wrote in my last post that taking on the IRS might not be senseless if the fight was 50 to 100, I wondered whether some crazy person at the USDOJ (whose computers according to sitemeter have been known to visit this blog) might read this and think I was saying it’d be a fine and moral idea in this day and age for me and 49 of my uncles and cousins to hole up in the family compound and take potshots at the 100 federal agents who’ve surrounded us in the woods. Maybe I could have worked harder to communicate my point more clearly, but I just can’t let crazy people run my life that way.

In the case of Jared Loughner we will never know to a certainty what caused his actions. But denying that hate speech and a low-brow, knuckle-dragging political culture had anything to do with his actions seems a lot like calling cigarettes health food. Denying the relation of speech and acts is a sign of something far worse than cancer, however: The denial is a form of declaring meaningless the very concept of culture or political society.    

Take the idea that “taxation is theft,” which so happens to be an idea I believe and express. The single biggest factor that would prevent me from treating an IRS agent who comes to my door like the thief that he is is the fact that I would be massively out-gunned by the IRS. (I don’t even own a gun.) Any confrontation between us would end very badly for me. (And could also end badly for one or two IRS agents, who after all might just be well-intentioned simple-minded Christians who skipped over what Jesus had to say about unrepentant tax collectors.) It would therefore be a “senseless” act of violence on my part. It would accomplish nothing, and lead to needless death, including my own.

On the other hand, if the entirety of the IRS’s power consisted only of 100 armed men, and I had on my side 50 like-minded men armed not only with guns but with courage born of their love for liberty, we might have a real fight on our hands. A similar scenario is what distinguished the situation of our Founding Slave-Driving Treasonous Fathers. They were intelligent, courageous, greedy, and organized. They had popular support. They thought, not without reason, that they could pull it off, and it turned out they were right, although the outcome was long in doubt. Their violence wasn’t “senseless.”

Now, it’s true that in every age including our own there are a few people who, whether by reason of insanity or desperation, just don’t give a fuck. Should we who do give a fuck refrain from saying “taxation is theft” for the sake of these few, lest their insanity or desperation combine with this idea and lead them to commit a senseless act of violence? Hell no, for a couple very good reasons. First, the alternative is the equivalent of kissing the master’s feet as we meekly hand over the chains we’ve forged for our own oppression. Second, if we keep our mouths shut and heads down the day will never come when 50 like-minded patriots will face but 100 loyalists. (I predict in that day the 100 will lay down their arms without a fight.) Ideas, and the propagation of them, do have consequences.

But saying “taxation is theft” isn’t to blame for senseless acts of violence. Theft is.

When I say that I am not alone in thinking sometimes violence is a necessary response to our own government, I am referring to the Founders of the United States of America. We may not like to think about it, but if they had not violently responded to what was then “our government,” the United States of America would not exist today; would never have existed.

But the words and actions of the Founders are instructive for us today not because they violently overthrew the government in place at the time. Or maybe not “just because.”    

The Founders did not arbitrarily attack. They did not suddenly come of age and say, “Today would be a good day to kill government officials.” It was something which developed over time — in fact, it was many years in the making.

During that time, the Founders tried. They tried hard to work within the government, to right the wrongs being done against them, to entreat both the government and their fellow countrymen, to change things through then-legal means.

When they realized there was no longer any hope of this happening, then they began to take to the path of violent resistance. Even then, there was something of a slow burn. They took to the path of violence with great reluctance.

When I read this I was reminded of what Brad Spangler at the Center for a Stateless Society wrote a couple days ago (before the shootings in Tucson), in a post titled “Hope, Reason and Discipline — Not Terrorism”:

Terrorism can not defend anyone from tyranny. As the label “police state” becomes a more and more apt description of the United States, people who apparently perceive undisciplined insurrection as the only hope for a free society will, unfortunately, lash out. Such appears to be the case with regard to incendiary packages and envelopes found in Maryland and Washington, D.C. today and yesterday. A more careful and sophisticated understanding of how to achieve revolutionary social change reveals the folly of such an approach. One can not blow up a set of dysfunctional social relationships. Ours is a war of ideas. Spreading those ideas and the hope they offer is lifesaving work.

What I really have to take exception to in Rick’s post are the words I’ve italicized in this paragraph:

The arbitrary “targeting” — is that now a loaded (oh crap!) word, or what? — of individual representatives of the government by madmen unhinged by Faux News commentators’ drumbeat of raucous and rotten rhetoric is not a Revolution. It is the senseless violence of criminals and their ethically-challenged sponsors, such as Glenn Beck and Sarah Palin who, frankly, bear every bit as much guilt.

Rick goes on to write:

You say you want a Revolution, you need to be clear what you say, what you mean, and why you want it. We all want to change the world. You say you’ve got a real solution? Well, you know…we’d all love to see the plan.

If all you want to talk about is destruction, you can count me out.

Ditto when you say you want to change the Constitution.

. . .

What a lot of people want — what I want — is to see the Constitution — not changed, and not just read, but followed. I want a government that recognizes that the ideals delineated in the Constitution have allowed this Nation — once-great — to survive for two-and-one-quarter centuries now. The recent reading of the Constitution by Congress is a good start. Reading the Constitution is something we should all do.

Often.

One of the things you’ll learn if you read the Constitution is that the government is supposed to have certain limited powers. The government is not — to use a phrase Bunny Chafowitz loves — “the be all and the end all.” It serves a particular purpose, which is mentioned in the Preamble. And it is supposed to have only so much power as it needs to accomplish those ends.

As a counterpoint to Rick’s reverence for the Constitution I offer the words of Lysander Spooner:

Inasmuch as the Constitution was never signed, nor agreed to, by anybody, as a contract, and therefore never bound anybody, and is now binding upon nobody; and is, moreover, such an one as no people can ever hereafter be expected to consent to, except as they may be forced to do so at the point of the bayonet, it is perhaps of no importance what its true legal meaning, as a contract, is. Nevertheless, the writer thinks it proper to say that, in his opinion, the Constitution is no such instrument as it has generally been assumed to be; but that by false interpretations, and naked usurpations, the government has been made in practice a very widely, and almost wholly, different thing from what the Constitution itself purports to authorize. He has heretofore written much, and could write much more, to prove that such is the truth. But whether the Constitution really be one thing, or another, this much is certain — that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.

Before the Civil War, Spooner, with lawyerly optimism, had written his exhaustively-researched and tightly-reasoned The Unconstitutionality of Slavery to prove that the Constitution was “no such instrument” as it had “generally been assumed to be,” and that contrary to such widely-held assumptions the Constitution as then written did not authorize slavery. The above paragraph was written after the Civil War. Whether Spooner’s interpretation of the Constitution was right or wrong, the Constitution had been powerless to prevent slavery or the aggrandizement of federal power following the bloody conflict which finally ended it, and was therefore “unfit to exist.”

In more recent times the Constitution has either authorized or been been powerless to prevent, inter alia, the government-mandated taxpayer bailout of Big Banking and the lie-fueled prosecution of unjustified wars, and is still unfit to exist.

I don’t watch Faux News or Glenn Beck or listen to anything Sarah Palin has to say, so I can’t be sure of the basis of Rick’s charges against them. But I’m absolutely sure that none of them have said, as Spooner did and I have, that the Constitution is unfit to exist.

And yet, I’m also absolutely sure that I am not to blame for the violent actions of madmen. (See also Patrick at Popehat here and here, and Norm Pattis here and here.)