People v. State

Earlier this week one dismissed a pot possession case after I persuaded him that he couldn’t, or at least shouldn’t, prevail against my client’s motion to suppress based on an improper vehicle impound and search. What’s crazy is that the written impound policy used by the police agency that stopped my client’s vehicle and impounded it tells its officers that driving while suspended by itself is sufficient grounds to impound a vehicle, and this is the rationale the officers gave my client at the scene for impounding his vehicle over my client’s objection. But this clearly violates the Fourth Amendment to the U.S. Constitution, according to the Indiana Supreme Court in Taylor v. State (2006). The prosecutor tells me he’s going to work with the police agency to rewrite their impound procedures so this doesn’t happen again. Good.

What’s also crazy is that, based on an order issued this week in a divorce case by the same judge who presided over the pot possession case, I can’t at all be confident that I would have won the motion to suppress had it been left up to her. What’s frustrating is that her abuse of discretion in the divorce case order, as abusive as it was, only harmed my client by a few hundred dollars, making it uneconomical to appeal. I may do something anyway, just on principle. (Note to self: get out of family law already.)

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An individual laying claim to exclusive possession of a tract of land is a proto-government, purporting, as governments do, to have jurisdiction over a particular territory. His home is indeed his castle. Government per se should be understood as nothing more than a confederacy (or confederacy of confederacies) of such proto-governments, instituted among them to secure their claims. How big should such a confederacy become, and how much wealth and power should be delegated to the confederacy itself by its proto-governments, recognizing that such power may very easily become a threat to the proto-governments themselves? Assuming the confederacy is intent on security rather than predation, the answer to this question would presumably be that the confederacy should be no bigger and no more powerful than is necessary to defend itself from external threats to its security. Notably, the smallest countries in the world, some of which have existed for centuries, seem to be doing just fine.

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Ann Althouse posts a righteous takedown of Herman Cain and his so-called 9-9-9 tax plan here.

There has never been a saner and simpler proposal for tax reform than the “single tax” on the unimproved value of land proposed by Henry George. The honest progressive and the honest capitalist alike would find in it, if they looked, a facilitator of their respective instincts. Most importantly, in stark contrast to the abomination that is “our” politician-created tax “code,” the “single tax” has its sure foundation in Justice, as illuminated by, among others, Thomas Paine.

Combine the “single tax” with Thomas Jefferson’s “ward system” and you have my political philosophy in a nutshell.

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It would never in a million years occur to me to stand on a street corner and hold a sign petitioning the State to “Tax the Wealthy” or “Tax the Bankers,” for a couple reasons:

1. The Bankers won’t be taxed unless they want to be taxed. They own the fucking State.

2. Although it’s certainly more evil to steal from the poor than from the rich, every dime in the hands of the State, whether that dime comes from the rich or from the poor, is a dime in the hands of our Enemy.

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Marc Randazza, in his inimitable style, says that “[i]f you believe in a magic space zombie Jew, you’re not rational enough to be president,” but opines that Albert Einstein would have been qualified to run things. So what did Einstein believe? In an interview shortly after his 50th birthday, Einstein answered:

To what extent are you influenced by Christianity? “As a child I received instruction both in the Bible and in the Talmud. I am a Jew, but I am enthralled by the luminous figure of the Nazarene.”

You accept the historical existence of Jesus? “Unquestionably! No one can read the Gospels without feeling the actual presence of Jesus. His personality pulsates in every word. No myth is filled with such life.”

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The local news story on our very own “Occupy Wall Street” protest last Saturday in South Bend included a photo of two protesters, one holding a sign saying “Tax the Bankers” and the other holding a sign saying “Tax the Wealth.” Here’s my take on that, from this comment on a post at a relatively new group blog by academics titled “Bleeding Heart Libertarians”:

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Noted A. E. Housman, whom Darrow visited in 1927. Housman has long been a personal favorite of mine, ever since I was turned on to him (and Omar, and Reading Gaol) by Robert Service’s poem “Bookshelf.” Here’s a representative sample:

Stars, I have seen them fall,
But when they drop and die
No star is lost at all
From all the star-sown sky.
The toil of all that be
Helps not the primal fault;
It rains into the sea,
And still the sea is salt.

I am, alas, not particularly inspired by the Occupy Wall Street movement,  for sentiments suggested by the poem above and reasons expressed by Thomas Knapp, Gerry Spence, and especially Claire Wolfe, who advises: “Occupy Your Ownself.”

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I’ve been reading Clarence Darrow: Attorney for the Damned (2011), by John A. Farrell. Here’s a couple excerpts from the first few chapters which particularly spoke to me.

From Chapter 2 (“Chicago”):

George Schilling was a prominent trade unionist when he encountered Darrow at a gathering of freethinkers. The other speakers had gone too far in mocking the ministry of Jesus Christ, and Darrow “jumped in, and with a ten-minute speech defended the carpenter’s son of Judea with such a sympathetic, persuasive voice that I fell in love with him,” Schilling recalled. “We became fast friends.”

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Alas, these are the concluding words of the dissent in In re Chase (7th Cir. 1972), found via this post by Eugene Volokh about a Muslim woman on trial in federal court for “allegedly funneling money to a terrorist group in Somali” who has been found in contempt of court and sentenced to 50 days in jail for refusing to rise when the judge entered the courtroom.

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“We can conceive an understanding, superior to human, to which that truth appears intuitively which we can only discover by reasoning. For this cause, though we must ascribe judgment to the Almighty, we do not ascribe reasoning to him, because it implies some defect or limitation of understanding. Even among men, to use reasoning in things that are self-evident is trifling; like a man going upon crutches when he can walk upon his legs.” — Thomas Reid (1710-1796)

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Norm Pattis has a very interesting post up today about Lysander Spooner and his Essay on the Trial by Jury. (Norm, a prominent Connecticut trial lawyer whose recent book includes a Foreword by F. Lee Bailey and an Introduction by Gerry Spence, credits yours truly with directing his attention to Spooner. I’ve sometimes second-guessed the value and purpose of this blog. Posts about the actual practice of law or actual court decisions have been few and far between, and, on the other hand, the folks at the Center for a Stateless Society illuminate the principles of anarchism more eruditely than I. But if I’ve facilitated a little cross-pollination, bringing some anarchism to trial lawyers, maybe some Georgism to anarchists, and maybe even a little religion to anarchists and trial lawyers, maybe this blog hasn’t been a complete waste of time.)

Norm’s post concludes:

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Thus wrote Justice Robert Jackson almost 70 years ago, as quoted in a NYT op-ed by Kent Greenfield which points out that “Constitution Day is probably unconstitutional.”

What is it that I find admirable and worthy of emulation in the Great Law of Peace of the Iroquois Confederacy? Pretty much the same things I find admirable and worthy of emulation in Aldous Huxley’s vision of a just society:

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Via Wikipedia, I’ve been reading Exemplar of Liberty: Native America and the Evolution of Democracy, by Donald Grinde and Bruce Johansen. The thesis of the book is that the Founders’ contact with Native Americans and their forms of government inspired Revolutionary fervor and ultimately influenced the U.S. Constitution. Personally, I believe, with Albert Jay Nock, that, rhetoric aside, subsequent history (including the genocide of Native Americans) demonstrates that the prospects for Old World-style exploitation in the New World, and the wresting of the mechanisms for such exploitation from British hands into American hands, was a far greater motivator for the Founders and the U.S. Constitution than the libertarian example of their indigenous neighbors. Nevertheless, the Native American exemplar remains as a reminder of what America could have been, and as an indictment of what America has become.

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Karen De Coster:

I am swearing off all media today because I cannot stand this endless attention to 9/11 and the persistent glorification of police and fire and EMT, and whatever other state-employed professionals are deemed to be heroes because they represent the state as our rescuer, benefactor, and savior.

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In Fargo, North Dakota, getting ready to try my first case.

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Jeff Gamso has a post up today noting the addition of a few blogs to his blogroll. He also notes: “I should probably consider deleting a couple of blogs from the list, but it seems wiser to add.  Because you never know.” I don’t have any reason to think my blog was one of those he had in mind for possible deletion (there’s several blogs on his roll that seem not to have been updated in some time), but it did cross my mind, and its crossing of my mind prompts me to ask myself once again what I’m doing, both on this blog and with my life in general.

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From “The Fundamentals of Voluntaryism” by Carl Watner, via Wendy McElroy:

Common sense and reason tell us that nothing can be right by legislative enactment if it is not already right by nature. Epictetus, the Stoic, urged men to defy tryants in such a way as to cast doubt on the necessity of government itself. “If the government directed them to do something that their reason opposed, they were to defy the government. If it told them to do what their reason would have told them to do anyway, they did not need a government.” As Lysander Spooner pointed out, “all legislation is an absurdity, a usurpation, and a crime.” Just as we do not require a State to dictate what is right or wrong in growing food, manufacturing textiles, or in steel-making, we do not need a government to dictate standards and procedures in any field of endeavor. “In spite of the legislature, the snow will fall when the sun is in Capricorn, and the flowers will bloom when it is in Cancer.”

. . .

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According to the last verse of the last Gospel:

And there are also many other things which Jesus did, the which, if they should be written every one, I suppose that even the world itself could not contain the books that should be written. Amen.

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Norm Pattis has a reflective post up today that reveals a lot about his personal story, and the place of the Bible in that story, that I didn’t know before. Norm’s post concludes:

Michelle Bachmann is a true believer. For a time, I wanted to be just like her. But I lost my faith. It broke my heart, and this heartbreak makes me wary of those who wave their faith as a rallying banner. If God is there, He most certainly is silent. The Bible doesn’t speak; we read it, and find in it those truths that serve our interests. That’s a long way from grace abounding.

For my part, I mark reading the following passage in The Brothers Karamazov, while stationed at the Philadelphia Naval Shipyard during my first year in the Navy, as the “first time in my life I consciously received the seed of God’s word in my heart”:

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Questions surface about citizenship of crime spree suspect

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I consider myself neither exceptionally brave nor a paragon of chivalry, but if I was a state supreme court justice and an angry sister justice rushed up to me and got in my face, I don’t think I’d “reflexively” put my hands around her neck, as Justice David Prosser of the Wisconsin Supreme Court recently did. I think I’d have the presence of mind and the dignity to wait until she actually did something like smack me in the face before I tried to choke her.

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“It is notable that the loudest cheerleaders of this war do not actually desire anything remotely resembling a revolution.  ‘As much as possible of the current bureaucracy, police and army should be retained,’ says Juan Cole, which unintentionally illustrates the truth: that this was not a revolution, not from the Euro-American perspective; it was a hit.  If Qaddafi were quite the Hitler he’s now supposed to be, or to have been, or whatever, then it would hardly do to keep his party apparatus in place.”

So says IOZ.

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The above was the original subtitle of this blog, before I changed it sometime back to “Fairly Undermining Public Confidence in the Administration of Justice.”

But you know who really excels at illuminating the philosophy and practice of law and liberty? Matt Brown, relative to whom I’m a piker. I want to highlight here a couple paragraphs from his latest post.

First:

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Some defense attorneys who have blogs seem to be fans of D.A. Confidential, and revel in their professional cordiality. Me, not so much. Here’s #7 on his Top Eight list of why win/loss tallies are pointless:

7. None of us should be afraid to try the hard cases. Sometimes we have cases where we are convinced the person is guilty, but maybe for evidentiary reasons, we also know it’ll be hard to prove it. The defense knows it, too, so won’t plead. I think sometimes we have to try and convince a jury in those instances, even if the risk of losing is high. It’s simply the right thing to do. And, you know, sometimes when we do that, we win.

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The body of a man from South Bend who was hiking the Appalachian Trail was found near the trail by other hikers on August 12, and investigators say “the circumstances of his death are suspicious.” His trail name was “Stonewall.”

My trail name was “Zeno.” I hiked the trail for two months, from Mount Katahdin in Maine to Mount Greylock in Massachusetts, during the summer before I started law school in 1996. During that summer, two women were murdered near the trail down in Virginia, a case which apparently still remains unsolved.

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Very, very sad.

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No. No it doesn’t.

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Usually what I get is “What a joy to find someone else who tnihks this way,” or “Whoa, things just got a whole lot esaeir,” or “I’m so glad I found my solution onilne,” but today somebody with a URL promoting hair loss treatments tried to leave, on this old post consisting entirely of the quoted words of Martin Luther King, Jr., this exquisitely spelled and punctuated comment:

The heart of your writing whilst sounding reasonable in the beginning, did not settle perfectly with me personally after some time. Someplace throughout the paragraphs you actually managed to make me a believer but just for a while. I still have a problem with your leaps in assumptions and one would do nicely to help fill in those gaps. In the event you actually can accomplish that, I would certainly be amazed.

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Tony Serra comes closest to hero-status for me, but I take him at his word when he says that he is a deeply flawed human being and that his primary motivation as a criminal defense attorney is the gratification of his own ego.

I’ve been accused of being a Bugliosi groupie. I challenge anyone to actually read And the Sea Will Tell and then tell me that Vincent Bugliosi was not a badass criminal defense attorney. This doesn’t mean he’s a hero of mine that I aspire to emulate. It is easier for a camel to pass through the eye of a needle than for a former prosecutor to enter the kingdom of heaven, at least until after he’s smoked a turd in Purgatory for every hour of unjust incarceration for which he is responsible. (Both Serra and Gerry Spence are also former prosecutors, by the way.) But I’ve got to respect a guy, perhaps especially a guy primarily famous for being a prosecutor, who has written things like this, this and this. Read those links, and then tell me whose “side” Bugliosi is on.

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First, Mark Bennett wrote a post reversing his previous condemnation of John Regan, the formerly anonymous author of the Lawyers on Strike blog, as a “coward.”

Then, Scott Greenfield tried to kick John Regan’s ass and “revealed” that John Regan was also commenter “John R.”.

Then, Bennett updated his post to write of John Regan that “it might be better for the criminal-justice system if he stays in Canada.” Bennett’s reversal of his reversal was based on the following comment left by John R. at Greenfield’s blog in 2010, which both Greenfield and Bennett at the time adjudged “scary bad”:

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