People v. State

A few posts ago I wrote:

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:

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Glenn Greenwald knocks another one out of the park, but his quoting with approval the following by John Cole gave me pause:

One thing that even the dim bulbs in the media should understand by now is that there is in fact a class war going on, and it is the rich and powerful who are waging it. Anyone who does anything that empowers the little people or that threatens the wealth and power of the plutocracy must be destroyed. There is a reason for these clowns going after Think Progress and unions, just like there is a reason they are targeting Wikileaks and Glenn Greenwald, Planned Parenthood, and Acorn. . . .

Politics makes for strange bedfellows, but I reserve the right to cheer for Wikileaks while maintaining my longstanding contempt for the arch-hypocrisy of Planned Parenthood as well as my indifference to the deserved demise of Acorn.

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In a recent email exchange, one of the country’s foremost and sanest authorities on jury independence / nullification pointed me to the online presence of a student comment by Francis X. Sullivan which I happened to be an editor of prior to its publication in the Wisconsin Law Review in 1999: “The Usurping Octopus of Jurisdictional Authority”: The Legal Theories of the Sovereign Citizen Movement. As I recall, at the time I was perplexed by the article and questioned its practical value, despite Frank’s excellent writing, having never before encountered the bizarre and incoherent theories described in it. Fortunately, the senior editors recognized its value and voted to publish it. I’m glad they did, as I have since run into these theories in the real world and now better appreciate Frank’s excellent and valuable taxonomy of them.

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One of my favorite blawgers criticizes another of my favorite blawgers for Going Too Far. I think they’re both right.

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The trial of the former Pennsylvania judge who allegedly sentenced “Kids-for-Cash,” Mark Ciavarella Jr., is well underway. One of the former judge’s alleged victims was quoted as saying on the eve of his trial, “I hope and pray everything he did, it comes back to him 20 times harder.” Amen.

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Scott Greenfield redeems his recent unwarranted dissing of “anarchy” with this:

It strikes me as fundamentally contrary to the judicial function to demand that a judge comply with precedent that he believes to be unlawful.  It’s not for lack of appreciation of precedent, or respect for appellate authority, but for the ability of a judge at the trial court level to achieve the result he believes to be correct.  To expect judges to do harm in their rulings strikes me as nonsensical, and reduces the judicial function to ministerial.

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Rick Horowitz posts an interesting take on the tension between a criminal defense attorney’s need for his client to tell him the truth about what really happened in order to mount an effective and fully informed defense and the ethical rules prohibiting criminal defense attorneys from knowingly facilitating the presentation of false testimony in court:

I don’t want to hear from you that you are guilty, that you did the deed — at least not if, after telling me all this, you want me to put witnesses, including you, on the stand to testify about how you were in London at the time the Fresno Mini-Mart was robbed.

You have the right to remain silent. When it comes to being a witness against yourself — that is, when it comes to spilling the beans about your guilt — no one, including me, can compel you to do that.

Mark Bennett in response posts an equally interesting comment:

For my part, I would rather have my client tell me the truth and then not testify than lie to me and then testify falsely. But if a client first told me he did the deed, and then told me he didn’t, I wouldn’t automatically assume that the second story was a lie.

And back in his very first post at Simple Justice, Scott Greenfield wrote:

For the purpose of representing a client, I assume that everyone is guilty in order to remove that taint they feel and enable them to speak freely to me about what happened.  This is by far the most important thing they can do to aid me in preparing their defense.  As I frequently tell clients, I don’t want to be the only person in the room who has no clue what really happened.  If a client lies to me to minimize their guilt, they have taken away my most valuable weapon on their behalf:  knowledge.

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Glenn Greenwald’s The Egyptian mirror:

Not even American propaganda could whitewash the fact that the U.S. has imposed Hosni Mubarak’s regime on The Egyptian People for decades.  His government is not merely our ally but one of our closest client regimes.  We prop him up, pay for his tools of repression, and have kept him safe for 30 years from exactly this type of popular uprising — all in exchange for his (a) abducting, detaining and torturing whom we want, (b) acting favorably toward Israel, and (c) bringing stability to the Suez Canal.

And yet it’s remarkable how self-righteously our political and media class can proclaim sympathy with the heroic populace, and such scorn for their dictator, without really reconciling our national responsibility for Mubarak’s reign of terror.  Thanks to this Look Over There genre of reporting, we’re so accustomed to seeing ourselves as The Good Guys — even when the facts are right in front our noses that disprove that — that no effort is really required to reconcile this cognitive dissonance.  Even when it’s this flagrant, we can just leave it unexamined because our Core Goodness is the immovable, permanent fixture of our discourse; that’s the overarching premise that can never be challenged.

Read the whole thing.

Greenwald is one of those bloggers who often makes me wonder why I even bother.

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The First Leftist:

The first Leftists were a group of newly elected representatives to the National Constituent Assembly at the beginning of the French Revolution in 1789. They were labeled “Leftists” merely because they happened to sit on the left side in the French Assembly.

The legislators who sat on the right side were referred to as the Party of the Right, or Rightists. The Rightists or “reactionaries” stood for a highly centralized national government, special laws and privileges for unions and various other groups and classes, government economic monopolies in various necessities of life, and a continuation of government controls over prices, production, and distribution.

. . .

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Now, I have no special reason for going out of my way to insult by quoting as I have above Scott Greenfield (I still like the guy), other than that in his post today at Simple Justice from which I’ve quoted he appears to have gone out of his way to insult and misrepresent all anarchists (and reluctant anarchists) of good will everywhere.

Anarchy is not chaos. It’s “rulerlessness.” It’s not something unheard of in the modern world. In fact, it’s the prevailing condition of international relations between so-called “sovereign” states (despite the United States’ longstanding propensity to act as if it’s the world’s ruler). It’s the principle behind the vaunted “balance of powers” supposedly built into the U.S. Constitution (though this principle is itself unfortunately “balanced” in the Constitution by other elements aiming towards the concentration of power).

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Recently I’ve found myself engaging in an endeavor that might strike a casual reader of this blog as hypocritical. Essentially, I’ve been urging a recently charged criminal defendant (who is not a client and who is currently unrepresented by counsel) to follow the rules of the court in which he’s been charged, to increase his chances of beating those charges. The defendant, however, believes the courts and the judges that rule them are lawless, and so his stated strategy is not to play by their rules but to try to force them to play by his.

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?

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Updating an earlier story which reported that Indiana University – South Bend “decided to remove Chick-fil-A as a campus vendor after news that a Pennsylvania franchise will be donating food for an event hosted by a known anti-homosexual group,” WSBT News is now reporting that “Chick-Fil-A has not been banned from campus after all,” but that IUSB “has suspended the once-a-week service from Chick-Fil-A pending a review of food service policies.” Somebody needs to “review” the “policies” of the government-paid academic geniuses at IUSB responsible for “banning” or “suspending” Chick-f/Fil-A for such a reason, because they obviously don’t know their First Amendment from a hole in the ground.

Is it just me, or is this just a little too much information, even for the “Facts and Procedural History” of an Indiana Supreme Court opinion: “He intended to rape [Victim], but after exposing her vagina decided against it for fear of contracting a disease. Realizing she could identify him, he cut her throat with a foldable hunting knife.” I suppose the court needed to explain that a rape was intended but didn’t occur and that empathy for his victim isn’t what deterred the defendant from carrying out his purpose, but in this instance I wouldn’t have presented the defendant’s explanation for his behavior as “fact.”

This public infighting among the highest judges of the state to our northwest, who preside in the city where I got my law degree, does my heart good and confirms my biases, as did this fascinating story emanating from the supreme court of the state directly to our north.

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We, Not They, Lost Two Great Cops, says Miami criminal defense lawyer Brian Tannebaum. I concur with the sentiment, not only when we lose a cop, but also when we lose a public defender. Or a private criminal defense attorney. Or a 7-11 clerk.

Here in Indiana, via The Indiana Law Blog, “Prosecutors Group Assails Proposal To Cut Prison Sentences.”

Glenn Greenwald says Good Riddance to Joe Lieberman. As The Philadelphia Inquirer’s Will Bunch noted about the odious senator from Connecticutt: “the only war he ever opposed was THE ONLY WAR HE MIGHT ACTUALLY HAVE HAD TO FIGHT IN.”

Patrick of Popehat on Dr. Kermit Gosnell’s “Deplorable and Unsanitary” “baby charnel house” of horrors in Philadelphia. Gosnell and the government that enabled his crimes are only the tip of the iceberg.

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David Gross at The Picket Line:

As I mentioned yesterday, a while back I tried to flesh out a variety of political philosophy that I whimsically dubbed “topianism.”

I meant the name to highlight the distinction between it and utopian political philosophies (meaning, most all of the rest of them, including the mainstream ones that pass for conventional wisdom) — that is to say that it’s not aiming
at organizing society in some ideal way, but in understanding and navigating society as it is in the here-and-now (not in the outopos where it will never be, or the eutopos where we might ideally project it to be, but in this topos right here where we’re standing). I’m not crazy about the name “topianism,” but I need some sort of tag to attach to the idea while I look for a better one.

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Despite writing about jury nullification yesterday, I forgot that yesterday, January 19th, was also the birthday of Lysander Spooner, the patron saint of jury nullification and this blog. I want to take this auspicious occasion to make a couple observations:

First, I want to acknowledge that I’ve perhaps been too harsh in my implicit criticism of Julian Heicklen for planning to represent himself in a criminal case charging him with jury tampering for allegedly distributing pamphlets about jury nullification outside a federal courthouse. There may be some method to his madness. He’s stated that he plans to represent himself “because I can and will say and do things that could disbar any attorney.” But by that he may “just” mean what he meant when he later explained:

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Or even just one really good one. (And yes, for this post only, Scott Greenfield is not banned from commenting.) Julian Heicklen needs your help. Here is the indictment. If a criminal case can be a thing of beauty, this one is. The good professor is charged with jury tampering for “distribut[ing] pamphlets urging jury nullification, immediately in front of an entrance to the United States District Court for the Southern District of New York.” Here is one of the pamphlets Heicklen is in the habit of distributing, entitled “A Primer for Prospective Jurors” and produced by the Fully Informed Jury Association (FIJA). As a commenter on this post by Garry Reed observes: “What is funny is that the evidence against him will be FIJA pamphlets.”

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In his post about the Rev. Martin Luther King, Jr., titled Because We’re All In It Together, Jeff Gamso quotes an excerpt from John Steinbeck’s The Grapes of Wrath, in which Tom Joad is talking with his mother:

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I wrote my last post, about MLK’s Letter from Birmingham Jail and a wrongly imprisoned former client whose freedom hangs in the balance pending the pronouncement of five fallible men in Indianapolis, very early this morning before going to sleep for the night. I dreamed, vividly, that they had set him free. I was crest-fallen when I woke up and realized it was “just a dream.”

Even so, I still have a dream.

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Read the whole thing.

Today I’m thinking, as I do every day, of another black man wrongfully imprisoned because of the color of his skin, whom I’m honored to call a friend; and praying from the depths of my soul that some day soon he will be free at last.

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Darrow is not as high on my list of all-time favorite people as he is on that of other criminal defense attorneys, but I thought they might not have seen these essays by him and find them of interest:

How to Abolish Unfair Taxation (1913)

The Land Belongs to the People (1916)

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You’ve got to like a guy whose self bio begins:

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.     Read the rest of this entry →

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In a post aptly titled To Hell With Toning It Down, Mark nails what I’ve been trying to say in my last two posts about the causal relationship between ideas and consequences and what if anything we should do about it. The whole post speaks to my condition, but I’ll highlight these paragraphs:

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.            Read the rest of this entry →

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Norm Pattis in his most recent post provides an important qualification to what I took him to say in his previous post (“When politicians seek to mobilize supporters with martial and military metaphors and symbols, they are now accused of inciting violence. This is utter silliness.”) about the shootings in Arizona:

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.     Read the rest of this entry →

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This is great stuff:

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.”     Read the rest of this entry →

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The lead article for a virtual symposium on “Land Tenure and Anarchic Common Law” being conducted by the Center for a Stateless Society begins:

There would likely be a range of legal regimes—commercial and non-commercial, religious and secular—in a stateless society. Some would be largely territorial, while others would serve people in different regions. The rules enforced by a given regime would presumably emerge from multiple sources: from the decisions of arbitrators, from the judgments of religious and other authorities accepted by participants in the regime, and from the specific contractual agreements made by regime participants. (For instance: property owners cooperating to arrange for road maintenance and other shared needs might also agree to frame their property claims in ways designed to formalize the rules governing the recognition of the transfer and abandonment of each other’s claims.) Whatever their sources, a wide variety of land tenure rules could in principle be implemented by these regimes. Disputes among anarchists about the form such rules ought to take have often focused on the differences between what can, for simplicity’s sake, be labeled occupancy-and-use and Lockean positions.        Read the rest of this entry →

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Norm Pattis on Secrecy, Terror and a Cowardly Government:

The Patriot Act and its sickly progeny have been used for all sorts of decidedly unpatriotic things in the past few weeks. The Government is, for example, seeking account information about Twitter users. It flashed a subpoena at Twitter headquarters in San Francisco ten days before Christmas: Turn over records but don’t tell anyone we asked, the Government demanded. Only cowards and tyrants hide their tracks with threats. Twitter stood its ground, and the truth can be told: Uncle Sam is wetting himself because WikiLeaks has toid the truth about what he does when he thinks no one is looking.

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Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution’s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe but more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth.

— Mr. Justice White’s dissenting opinion in United States v. Wade, 388 U.S. 218, 256-58 (1967) (Emphasis added.)

Prosecutors may read this famous opinion differently, but I read it to say that the mission of defense counsel is to do justice.

Justice is the absence of crime. Convicting the innocent is a crime if ever there was one. The “justice” of prosecutors is justice only in a derivative sense. It’s the use of punishment — which itself outwardly resembles crime — to try to prevent or deter future crimes and/or somehow negate or provide satisfaction for crimes which have already occurred. Its purpose is to approximate so far as possible justice in its root sense, but historically hasn’t gotten us very far.

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In praise of Jeff Gamso for this excellent post — even though Jeff doesn’t think I’m a real criminal defense lawyer (“RCDL”) and on rare occasions indulges in drivel — and in praise of the Iowa Supreme Court for the excellent reasons cited in Jeff’s excellent post.

This is precisely the kind of post I meant when I recently wrote:

I admire but can’t hold a candle to those bloggers like Jeff Gamso and many others who regularly offer substantive, insightful and practical posts on the criminal law (i.e., the law criminal defense attorneys are actually constrained to deal with, rather than the Law I like to occupy myself with). Don’t get me wrong. Some of the happiest times in my life have been when I’ve had the Read the rest of this entry →

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Apparently I was wrong when I recently wrote that “everybody disagreed with . . . my skeptical challenge to the common wisdom regarding the role of the criminal defense attorney relative to justice and the role of the prosecutor.” In a post critiquing Mark Bennett’s recent post about The Defense Function, the anonymous author of Lawyers on Strike, noting my comment on Bennett’s post, writes:

Kindley and Bennett and Scott Greenfield have had an ongoing disagreement about just what it is that criminal defense lawyers “do”.  I’ve weighed in on that debate obliquely:  here and here, for example.  And here.

Does this segue into The Question?  Maybe.  Bennett seems to think so.

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In a post so perfect I couldn’t possibly add anything, Matt writes:

If I lived in Texas, I would have had a little more background when I read this post by Murray Newman. I was skeptical about what he perceived as a double standard even reading it without context, but that by itself didn’t seem worth a post on my part. When a prosecutor gets charged and defense lawyers don’t just rant about the presumption of innocence, I hardly see it as cause for concern. We’re still human, right? Defense attorneys live in the same world as everybody else, don’t we?

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Read the whole thing: Schadenfreude, Irony, and The Defense Function

The whole post is excellent and thought-provoking, but I took issue with this:

Normal people (like normal dogs) have an innate sense of fairness: people should get what they deserve, and no worse. But normal people also seem to have an innate sense of retribution: people who do harm should be punished, regardless of their culpability. Retribution is what makes a child angry at the sofa on which he stubs his toe, and retribution is what makes the punishment for DWI with no injury different than punishment for intoxicated manslaughter.

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Resolved: To better know and observe my own limitations. A man’s got to know his limitations.

I started this blog with the intention of making it about both “the philosophy and practice of law and liberty.” It’s been tilted more towards philosophy than practice, and since after getting my B.A. in philosophy back in 1994 I quickly gave up on my plan to pursue a doctorate in philosophy in favor of a juris doctorate I’m not much more qualified than your average lawyer to speak on philosophical subjects.

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I have a confession to make. One of my early posts on this blog was ripped off in its entirety from an article by Thomas Knapp at the Center for a Stateless Society (C4SS). In my defense, his article was titled “Steal This Column.” Also in my defense, the C4SS encourages such wanton theft:

Take our content, please!

All content on this site is available for republishing under a Creative Commons 3.0 Attribution license.

We want you to copy and distribute this stuff as widely as possible. That’s what we’re here for!

You don’t have to ask our permission. That’s what the Creative Commons licensing is for. Everybody has permission already. Just do it.

If you want to be nice, you can include a link back to us, but the only requirement is to provide attribution to the author and C4SS.

Because the authors at the C4SS so often say things I wish I’d said, I plan to take them up on their offer and steal their content more often. And I couldn’t begin my thievery with a better article than the one posted today by Kevin Carson and copied and pasted in its entirety below by me:

Bradley Manning: One Soldier Who Really Did “Defend Our Freedom”

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The First Rule of the War on Drugs is DON’T TALK ABOUT THE WAR ON DRUGS:

Sometimes people write me and ask why the hell I’m not writing about story X, because it’s “right up your alley.” Usually this means that story X is about free speech, or nanny statism, or police abuse, or (not infrequently) some species of mordantly self-involved douchebaggery that readers associate with me.

Sometimes the answer is that I’m too busy. Often the answer is that I can’t think of an angle on the story that will allow me to say something about it that hasn’t been said better already by smarter people, and I am not in the mood for a mere heh indeed-style link.

And sometimes the answer is that the story inspires a white-hot impotent fury that would leave me unable to write anything but a string of epithets.

Read the whole thing.

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A couple posts ago I characterized anarchism in a way that might have seemed trivial, as simply amounting to the self-evident belief that no one (not even a G-Man) has or possibly could have the right, or authority, to do anything wrong to anyone else. I further suggested that this understanding is widespread though not fully-realized among we the people.

Tolstoy said it better:

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