What follows is an email I sent today to Norm Pattis, with links to pertinent posts on various blogs added:
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.
“That, after all, was the argument on which the American Founding was based; it is pure political speech; and criminalizing the expression of that idea poses a grave danger to free speech generally and the specific ability to organize against abusive governments. To allow the government to punish citizens — let alone to kill them — because their political advocacy is threatening to the government is infinitely more dangerous than whatever ideas are being targeted for punishment, even if that idea is violent jihad.”
Glenn Greenwald is of course absolutely right.
And his absolutely valid point kind of makes my little effort on this blog to undermine and diminish the government’s power over the American people, by reminding whoever stops by that faith in the government is irrational and un-American, appear positively tame in comparison, doesn’t it?
Indiana Code article 35-36 provides:
In any criminal action, either the defendant or the state is entitled as a substantive right to a preemptory change of venue from the judge without specifically stating the reason. The defendant or the state may obtain a change of judge under this section by motion filed in a manner and within the time limitations as specified in the Indiana Rules of Criminal Procedure. Each party is entitled to only one (1) change of judge under this section.
But see State ex rel. Jeffries v. Lawrence Circuit Court (Ind. 1984) and State ex rel. Gaston v. Gibson Circuit Court (Ind. 1984) (holding that this statute conflicts with one of the rules of criminal procedure adopted by the Indiana Supreme Court and is therefore of no force and effect), and Justice Hunter’s dissent in Gaston:
One of my favorite blogs has apparently died.
I’m proud to be Belgian (i.e., one-quarter Belgian, through my maternal grandfather, who fought in WWII and received the Bronze Star and Purple Heart. He died when I was seven or eight. According to family members he was a very different man after the war than he was before.)
Three genuine war heroes: Smedley Butler, Hugh Thompson, and Bradley Manning.
“We’re All Victims of the System”
“Buy a gun. Get a dog.” And close down all the prisons. The world would be a better and safer place.
People of the State of Colorado v. Charles La Voie (1964), via Orin Kerr at The Volokh Conspiracy:
The defendant in error, to whom we will refer as defendant, was accused of the crime of murder in an information filed in the district court of Jefferson county. He entered a plea of not guilty and a jury was selected to try the case. At the conclusion of the evidence, the trial court, on motion of counsel for defendant, directed the jury to return a verdict of not guilty. It was the opinion of the trial court that the evidence was insufficient to warrant submission of any issue to the jury in that the sum total thereof established a clear case of justifiable homicide. The district attorney objected, and the case is here on writ of error requesting this court to render an opinion expressing its disapproval of the action of the trial court in directing the verdict of not guilty.
I borrow the words of a commenter on a local story about the Indiana Supreme Court’s reversal of the Indiana Court of Appeals’ reversal of an innocent man’s attempted murder conviction and 45 year sentence, who writes:
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.
Hard on the heels of its holding that the right to reasonably resist an unlawful police entry into a home is no longer recognized under Indiana law, the Indiana Supreme Court has issued another opinion today, reversing the Indiana Court of Appeals’ reversal of an innocent man’s conviction and 45 year sentence.
There’s not much I can say. Words, including the words of which the law is made, are worthless. I represented that innocent man at trial.
As Patrick says:
[T]here is a rule older and superior to that of the Constitution. Many Americans do not believe that to be the case. There is a philosophical divide in America, with the Justices of the Indiana court, and their Constitution, on one side, and a different law on the other.
One American called it “the Laws of Nature and Nature’s God”.
One Englishman called it “the Law of the Jungle”. [Link added.]
[Title inspired by J. DeVoy at the Legal Satyricon, Scott Greenfield at Simple Justice, and of course Trey Parker and Matt Stone.]
A skeptic might theorize that Osama bin Laden is in fact not dead but alive and well in the CIA witness protection program somewhere. After all, the best evidence of his death has already been buried at sea, and U.S. officials are trying to decide whether a photo they have of his corpse is just too graphic to release. After all, Osama has been great for government business over the last ten years. His “disappearance” now won’t undo or slow down any of that, and the timing couldn’t be better for Obama.
I myself don’t go so far (despite the U.S. government’s habit of telling outrageous lies to “its” people). I merely note that the killing of bin Laden by Team America doesn’t make me feel any safer. Quite the opposite. And the threat of reprisals for his death is already being used by U.S. officials to remind us how much we need them.
You know what would make me feel safer? If the government which purports to act in my name stopped fucking with people all over the world.
“Governments don’t live together, people live together.” (H/T Bryan Brown at the ArchAngel Institute.)
In the blog post by Jamison Koehler that I wrote about here, Jamison remarked:
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.
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?
Suppose you’re a juror in the trial of a defendant accused of being a serial child rapist/murderer. After all the evidence is presented you’re 95% certain — but only 95% certain — that the defendant is guilty as charged. You might be understandably reluctant to vote to acquit based on a 5% chance that the defendant is innocent. If the defendant is guilty — and it’s 95% certain that he is — voting to acquit would mean he’d be free to rape and murder other children. But a 5% doubt is certainly substantial, when you’re talking about the freedom of a man who just might be innocent (as would be a 1% doubt, or a .01% doubt).
I think that most juries who are 95% sure that a defendant accused of being a serial child rapist / murderer is guilty are going to decide that they are persuaded “beyond a reasonable doubt” of the defendant’s guilt and are going to convict. And maybe, in the interests of public safety and of all the potential future victims of the defendant, it’s right that they do so. If the defendant was in fact innocent, his conviction and imprisonment is a catastrophic tragedy, but so is being killed in a traffic accident.
But why risk compounding the tragedy of an innocent man’s conviction by trying to make a possibly innocent man’s life hell based on the assumption that he’s in fact guilty? Why not treat convicts as if they’re both innocent and dangerous? Why not limit the government to only necessary evil?
Jamison Koehler has an interesting post up On the Defendant’s Acceptance of Responsibility at Sentencing. I weighed in with a comment, observing:
“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.
Three largest online poker sites indicted and shut down by FBI (L.A. Times), via J. DeVoy at The Legal Satyricon and Radley Balko at Reason
In Financial Crisis, No Prosecutions of Top Figures (NYT), via Glenn Greenwald at Salon
An Indiana Senate panel voted today to eliminate a provision in a pending abortion bill that would require women seeking abortions be told the procedure is linked to breast cancer.
. . .
The Senate Health and Provider Services Committee approved the bill 6-2 with an amendment by Sen. Pat Miller, R-Indianapolis, that eliminated that language.
“We listened to what some physicians has said about the breast cancer issue and decided it would be best to take that out,” said Miller, a co-sponsor of the bill.
Here’s a quick personal history: I joined the Navy in 1987 at the age of 17. Being in the Navy and reading The Brothers Karamazov led to my conversion to Catholicism. My conversion to Catholicism led to me becoming “pro-life” and leaving the Navy. Leaving the Navy led to law school. Being pro-life led to me becoming aware of the abortion-breast cancer link. Becoming aware of the abortion-breast cancer link led me to write a law review article about it and to become focused on litigation related to it. The outrageously unjust judicial disposal of that litigation led to me becoming an anarchist. Becoming an anarchist coincided with my gradual recognition that I no longer believed in the authority of the Catholic Church and led me to become, not exactly “pro-choice,” but no longer supportive of efforts to legislatively re-criminalize abortion. My rejection of Catholicism led to my discovery of Quakerism.
The Indianapolis Star has published the following letter I wrote to the editor, under the title Lawmakers were right to include link to abortion:
The Indiana House recently passed legislation that would require women considering abortion to be informed of “the possibility of increased risk of breast cancer following an induced abortion and the natural protective effect of a completed pregnancy in avoiding breast cancer.”
The legislative language quoted is accurate and objective. The “protective effect of a completed pregnancy” is generally undisputed in the scientific community, as is the fact that a woman who has an abortion loses this protective effect and thereby increases her risk of breast cancer relative to what it would have been had she completed the pregnancy.
House Bill 1210, inter alia, prohibits performing an abortion unless the pregnant woman upon whom the abortion is to be performed is informed orally and in writing at least 18 hours before the abortion of “the possibility of increased risk of breast cancer following an induced abortion and the natural protective effect of a completed pregnancy in avoiding breast cancer.”
The language from the bill quoted above is more than accurate: a “possibility of increased risk” is strictly and practically speaking not a “possibility of increased risk” but an increased risk. And the increased risk of breast cancer following an induced abortion is supported by an overwhelming preponderance of the scientific evidence. See, e.g., my student comment published in the Wisconsin Law Review in 1999, the briefs I submitted to the North Dakota Supreme Court in the case of Kjolsrud v. MKB Management dba Red River Women’s Clinic (including extensive citations to the trial transcripts of my cross-examination of the defendant’s expert witnesses), and the website of the Breast Cancer Prevention Institute (whose board of directors includes Joel Brind, who was my expert witness at trial in the Red River Women’s Clinic case).
In a comment on Mark Bennett’s post criticizing a Colorado district attorney’s plan to offer cash bonuses to her deputy prosecutors who participate in at least 5 trials in a year and win a felony conviction in at least 70% of them, I remarked:
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.]
Here it is. The smiling face of Corporal Jeremy Morlock, a disgrace to the human race. Why is the corpse whose head he’s holding up naked? What unspoken and unspeakable atrocities did Morlock and his brothers-in-arms commit against this innocent son of a farmer before they finally killed him for shits and giggles? And Jeff Gamso almost had me convinced that the death penalty is never justified. And here I am in my last post implying that God dwells within each and every human being. Morlock and those like him are the best argument there is against the existence of God.
Or maybe it’s really not Morlock’s fault. Maybe war just does that to people. In which case we should never, ever, go to war, unless it’s actually to defend ourselves. We should bring all of “our” troops home this very minute.
Recently I described myself as a “Christian Deist” in a comment on this interesting blog, written by a lawyer who was denied admission to the Indiana bar by the Indiana Supreme Court apparently because of a legal philosophy similar to my own and his purported resistance to and criticism of the psychological evaluation of his sanity required by the Board of Bar Examiners because of the fact that years before his application for admission he had been arrested several times for protesting at abortion clinics and had refused to pay an unconstitutional civil judgment for attorney fees against him related to such protests. (Norm Pattis writes today regarding the disbarment of F. Lee Bailey and the fact that judges rather than juries decide such questions: “Deciding whether an aggressive, and often controversial, lawyer should remain at the bar is not a decision I would trust to a judge, ever.”)
What I mean by describing myself as a Christian Deist is illuminated by the following two articles, my discovery of which online was prompted by my discovery in a bookstore yesterday of Tolstoy’s The Gospel in Brief:
It’s absolutely essential in representing a client to check whether a case that appears to help or hurt your client has been cited by later cases and perhaps overruled or distinguished, and it’s a very good idea to also do so in writing a blog post, even though “Nothing on this site constitutes legal advice.” A couple posts ago I suggested that the Indiana Supreme Court in its unanimous decision in Holden v. State (2003) had effectively nullified Article I, Section 19 of the Indiana Constitution, which recognizes the right of juries to nullify “the law” when justice so requires. [“In all criminal cases whatever, the jury shall have the right to determine the law and the facts.”] I’ve since discovered the Indiana Supreme Court’s 3-2 decision in Walden v. State (2008), and particularly the dissenting opinions of Justice Rucker and Justice Dickson, which shed significant light on Holden.
Is there anything more obscene than Westboro Baptist Church’s picketing of dead soldiers’ funerals? Yes, there is indeed something far more obscene: the U.S. military’s God-damned torture and charging with a capital offense of the only American soldier in recent memory who has actually fought and suffered for the freedom of Americans, PFC Bradley Manning. In this new age of involuntary transparency brought on by Wikileaks, Obama’s Administration apparently has decided to respond with less secrecy and more Terrorism, and presumably views the “bad” publicity associated with Manning’s treatment and comparisons with Abu Ghraib and Gitmo as a feature and not a bug. Obama is a contemptible hypocrite. Manning is a hero. They have their reward.
See:
The Truth Behind Quantico Brig’s Decision to Strip PFC Manning, by his lawyer David E. Coombs
Manning Prosecutors: The Enemy is Us, by Thomas L. Knapp at the Center for a Stateless Society
Sailors take aim at new recruiting slogan, by Philip Ewing at the Navy Times
UPDATE: See my post here about a 2008 Indiana Supreme Court decision which sheds significant light on the 2003 Indiana Supreme Court decision discussed below.
In honor of the publicity currently being given (by the New York Times, Scott Greenfield, and Eugene Volokh, among others) to the federal “jury tampering” prosecution of Julian Heicklen for distributing pamphlets containing truthful information about jury nullification to passerby outside a Manhattan federal courthouse, here’s a short story which hopefully sheds some light on the widespread belief that Indiana is one of a few states whose constitutions explicitly recognize and protect the right of juries to judge the justice of the laws:
A few days ago the Indiana Supreme Court unanimously granted transfer and adopted a court of appeals’ unanimous opinion reversing a St. Joseph County trial judge’s granting of an adoption of a minor child by the child’s stepmother over the child’s mother’s objection. The court of appeals’ opinion had concluded:
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:
Today I received by email from attorney Patrick K. Rocchio, per my request, a statement by him, on his letterhead and dated February 15, 2011, responding to the Indiana Supreme Court’s disciplinary ruling In the Matter of Patrick K. Rocchio. With Mr. Rocchio’s permission I’ve posted below the text of his statement in its entirety. It’s long and detailed, but well worth the read. If you don’t read the whole thing, at least read the “Personal Remarks” section at the end.
Mr. Rocchio’s statement:
Jeff Gamso crosses over into my jurisdiction today with a post titled Indiana Wants To Be Ohio, about an Indiana Supreme Court disciplinary ruling issued last Friday, In the Matter of Patrick K. Rocchio. The pseudonymous Strike-Lawyer summarizes and comments on Jeff’s post thusly:
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.”
I don’t take issue with Harvard law prof Noah Feldman’s concluding suggestion in his op-ed in the NYT that maybe we should do away with judges’ black robes, as I’ve suggested the same thing myself. However, our rationales are fundamentally different. My rationale is that judges shouldn’t be politicians but generally are, and therefore don’t deserve as a class to wear something apparently designed to mislead people into believing they’re something other than what they are. Feldman’s rationale appears to be that judges not only are but should be politicians and should hobnob, “dr[i]nk regularly,” play poker and hunt ducks with other politicians, and therefore should lose the robes so people don’t think they should be anything other than what they are.
H/T Scott Greenfield at Simple Justice
A commenter on my old post on 18 U.S.C. 2422(b) [which now mandates a minimum of 10 years in prison for using the internet to knowingly entice a minor to engage in illegal sexual activity] writes:
I was convicted of 2422(b) in 2002 by a jury in Los Angeles, CA (9th Circuit). My first jury was deadlocked and a mistrial was declared. The second jury was also deadlocked but after repeated instruction from the judge to further deliberate they eventually convicted.
. . .
 Lysander Spooner |
 Henry George |
 Harriet Tubman |
 Sitting Bull |
 Angelus Silesius |
 Smedley Butler |
 Rose Wilder Lane |
 Albert Jay Nock |
 Dora Marsden |
 Leo Tolstoy |
 Henry David Thoreau |
 John Brown |
 Karl Hess |
 Levi Coffin |
 Max Stirner |
 Dorothy Day |
 Ernst Jünger |
 Thomas Paine |
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