Guilty Offense? A Defense.

A prosecutor in Louisiana apparently wishes to ensure accused people are punished for trying to defend themselves against having been accused.

Throughout history, and throughout the world, there have been different kinds of systems for determining that someone is guilty of a crime, and needs to be punished.

In some places and times, an individual decided. The crime, for them, might have been as trivial as that the other person did not pay them the respect they thought they were due, or in more modern, but completely-uncivilized countries—such as the Philippines, or, if Donald Trump had his way, the United States—it might be that the accused is believed to be a drug dealer deserving of summary execution at the determination of the law enforcement officer who first decided the drug dealer was a drug dealer.

At another time and place, a question might arise as to whether someone has given someone else the evil eye, or whether they might weigh the same as a duck. With these systems, you might get a summary execution for evil eyes, or you might have to perform some kind of objective test to see how much the accused weighed relative to a particular feathered divination tool.

There are systems that specify, in advance, that certain things are not going to be tolerated, including shooting people on sight for giving you the evil eye, or even using the objective procedure of comparing a witch’s weight against a duck’s. It might still be possible to shoot people on sight for other reasons (“trespassers will be shot on sight”). Or the system might span the gamut from such summary execution to a completely codified system of various sorts, involving procedural as well as substantive rules before one could get to a conviction or punishment.

Many of these approaches clearly fall into a type of system that was once referred to as “the rule of man,” ^[1]Men, of course, are a disfavored type of being these days. Even before that, many enlightened—which now some call “woke,” except that most of the woke are anything but enlightened—recognized that always saying “man” when what was meant was “humanity,” was a microaggression worth changing. I don’t always do this, not because I’m sexist, but because “rule of persons,” or “rule of a person” doesn’t juxtapose against a more desirable alternative, “rule of law,” as well as “rule of man” does. and are generally said to be disfavored in modern civilized nations.

The approach which more civilized societies strive to implement, has gone under the rubric of “the rule of law.”

Most systems are a mix of both, but with a tendency to favor a rule-of-law approach, or a rule-of-man approach; and most these days do claim to be rule-of-law systems, even in primitive areas like the Philippines, or Louisiana.

I particularly want to talk about the criminal “justice” system as it exists in most of the United States, which for a long time has favored law. And I want to talk about the hard work being put into doing away with it on the part of legislators, prosecutors, judges, and others who mislabel themselves as law-and-order types, which is what earns the appellation of the system its scare quotes.

Though the United States generally considers itself to be a nation of laws (i.e., we say we follow the rule of law), there have always been pockets where the rule of man is transcendent. In parts of the city in which I live, and I suspect this is true of other cities, as well, looking at someone the wrong way can get you killed. Whether you call this the evil eye, or “mad-dogging” (as it is known where I live), or just “mom! he’s lookin’ at me!,” there is no tribunal that decides guilt. The offended individual makes a judgment call, and sometimes the unfortunate individual who was about to proffer friendship (or not) ends up dead. The surviving individual, if caught, may be prosecuted in our rule-of-law system, but he may not. ^[2]In one of my most recent cases, the real victims—the people who were initially shot at—were arrested because the alleged victims were the first to call the police. Then, just as we were about to go to trial, a co-defendant decided his exposure (the amount of time he could get if convicted without a plea agreement) was too great. After he took a deal, my client then went the same route.

Even within our rule of law system, there is a great tendency to follow a set of “rules” that makes it anything but. The person whom you looked at wrongly might be a cop, and his bare and unsupported statement that he feared for his life will be enough to support his decision to summarily execute you. Moreover—again in my city—those officers will not hesitate to go door-to-door in poor minority neighborhoods looking for weapons, gang members, or people they suspect have committed a crime, thus violating the constitutional rights of everyone they encounter to a degree not seen by white people since the expulsion of the British in the late 1780s.

As you might guess, while I’ve juxtaposed individuals in the rule of man systems versus society in the rule of law system, the fact is that it is societies that embrace, promulgate, or tolerate, both systems. A governing body may exist, like that maintained by King George III, or by the asshole killer-dictator Duterte in the modern-day Philippines, or by an American judicial system that lets individual soldiers, or cops, decide when people, or pets, should die. They nevertheless derive their right to set the rules, or lack of consistent rules, because most of the individuals over whom they rule allow it. Societies, in the end, are just aggregations of individuals.

In the United States, at least, the rule of law is allegedly instantiated in a system of “due process,” which imposes both substantive and procedural requirements on certain parts of the government, at certain times, for holding an individual accused of an affront to society (known within the system as “a crime”) to account. Without due process of law, governmental agents (allegedly) are not supposed to arrest, accuse, convict, or punish people. Without the sanction of law, the government may not deprive people of life, liberty, or property.

Looking at things—because this isn’t a tome, or treatise—perhaps a little simplistically, substantive due process specifies that the government may make certain things crimes, but that certain other things may not be infringed, or outlawed. ^[3]I’m talking about criminal law here. Substantive due process in the civil context is not addressed. Again, this isn’t a tome or treatise on due process law. These things are typically believed to be “fundamental” rights which may be derived from constitutions (both state and federal), or from longstanding precedent, by virtue of having been “deeply rooted in American history and tradition.”

Procedural due process controls the procedures by which the violation or non-violation of a crime is determined. So, for example, procedural due process would require (among other things) adequate notice of the accusation, a hearing on the evidence, and a neutral judge. It probably also requires procedures that are known to be reliable, so that weighing someone against a duck won’t work.

On the other hand, the California system, at least, does allow cops to masquerade as “gang experts.”

Rules for determining whether or not a particular person has committed an affront to society are more time-consuming than merely making a snap judgment and snapping someone’s life from them on the spot. This is especially true of procedural rules.

Nevertheless, many societies have considered that these rules make life more peaceful, more ordered, more fair, and generally more enjoyable for all who live by them. The old approaches have little-to-no predictability. You might have a very skinny midget of a witch, and a very large fat duck. Or you might have accidentally spilled a drink on someone, or looked their way for a minute. Maybe you wore red because you like red, and a member of a blue-clothing-loving gang took you for a rival. Maybe while being forced to crawl on your belly like a non-citizen, you thought it would be okay to keep your pants from coming off.

Mistakes are frequently made where each individual, as a rule unto herself, ^[4]See? I can be wokish. decides to be offended by the “guilty” party, and dishes out punishment on the spot. Systems that allow this promote disorder, unfairness, and a whole lot of personal and societal pain.

But, as I said, the alternative rule-of-law systems take a lot of work.

First, you need investigations to establish probable cause to believe that someone suspected of having committed a crime actually might have done so. That will get you to court.

Once in court, you may find that “probable cause” was enough to get you to the dance, but not enough for the jury to choose you as its partner: you might need even more proof. Sometimes, that’s even “proof beyond a reasonable doubt,” because most of us don’t want to be responsible for innocent people being locked up in jails and prisons, or, worse yet, executed. Supposedly. ^[5]Nevertheless, there are a staggering number of innocent people in our prisons. The likelihood of a conviction goes up if the crime involves grisly, or gruesome, evidence. At least some people have suggested it’s time to ditch juries.

And on the way to getting a jury to look at what the prosecution believes will constitute proof beyond a reasonable doubt, there are other potential barriers.

These barriers are the fruit of experience. Over centuries—not days, not weeks, not years—we have collectively learned that certain things can result in more innocent people being locked up, or executed.

This is one of the reasons that the famous (among lawyers, at least) Blackstone’s ratio developed. As noted in the linked Wikipedia article, though, Blackstone’s ratio is older than Blackstone:

Abraham drew near, and said, “Will you consume the righteous with the wicked? What if there are fifty righteous within the city? Will you consume and not spare the place for the fifty righteous who are in it? … What if ten are found there?” He [The Lord] said, “I will not destroy it for the ten’s sake.” ^[6]Genesis 18:32 , World English Bible (draft form).

In furtherance of the view that it is better to risk guilty people going free than to imprison or have the state murder innocent people on our behalf, numerous other due process rules have evolved. These include things like the right to have only certain kinds of evidence admitted into court. Hearsay, and garbage testimony are not supposed to be allowed—well, unless a cop claims to be an expert on a particular subject, or you’re dealing with junk science, which most judges cannot tell apart from real science. ^[7]In California, some, but not all, hearsay from gang cops that everyone except defense attorneys pretend are experts is finally being limited.

In addition, there are limitations on the government that are meant to protect all of us from unreasonable detentions, searches, and seizures.

Believe it or not, despite these limitations, police really do stop people without probable cause, and sometimes, in poor minority neighborhoods especially, just go door-to-door ^[8]I can’t find a story on this on the Internet, but I’ve heard it from enough clients over the years to believe it. On rare instances, police reports provided to me contain statements that also support this is happening. invading people’s homes searching for evidence of crimes, or criminals, and seizing property along the way. Sometimes, they seize the property without even arresting anyone, which can make it virtually impossible for poor minority citizens to get the property back.

However, when discovered in a criminal case, these limitations may be punished by the suppression of evidence that was illegally obtained. And that can result in the case being dismissed. Sometimes—depending on whether the suppressed evidence was false evidence planted, coerced, or otherwise manufactured by police, or or whether it was just obtained in violation of the law—this can result in a “guilty” person going free.

Thus, these rules—and there are others besides just those I mention here—can make it more difficult for prosecutors to obtain a conviction. As noted, sometimes they make it difficult even when the accused person is guilty.

I did not say that they necessarily make it “difficult”: just “more difficult.”

Law enforcement and prosecutors still have access to more money, more tools, and more good will on the part of judges and jurors than accused people can get any day of the week. Most people accused of crimes cannot even afford an attorney, and I don’t know any counties (which are responsible to pay for indigent defense, at least in California) that will lay out enough money for the number of poor people who need attorneys. ^[9]This is a major problem which requires a post of its own. It causes people to despair when they have to go with a public defender. I tell people all the time that nearly all public defenders are good lawyers who care about their jobs. The problem is that there aren’t enough of them. The consequence is that they often have less time to put into any given individual case. Compare this to a doctor who is an excellent surgeon: no matter how good he might be at removing gallbladders, if you give him 50 to remove every day, he’s not going to be doing his best work on most of them.

In addition, most judges in California—at least since about the 1980s—are former prosecutors. Even the most fair-minded of them tend to be less inclined to protect an accused’s constitutional and statutory rights if it looks like it’s going to make a conviction less likely. If the evidence seems like it will tilt the scales towards guilt, judges are more inclined to turn a blind eye to the unconstitutional nature in which it was obtained. I’m not even saying that they’re trying to be consciously unfair (although some are); they just give in to the idea that they don’t want to let a person who seems like he might be guilty go free just because some government agent screwed up, or even deliberately skirted the rules.

And then, there are the prosecutors. Their job is to do justice, not merely obtain convictions. As Supreme Court Justice Sonia Sotomayor once put it:

My job as a prosecutor is to do justice. And justice is served when a guilty man is convicted and an innocent man is not.

Technically-speaking, prosecutors are the only ones in the system with that duty. No part of that duty suggests they work to make sure people are punished for trying to defend themselves.

Judges are supposed to serve as neutral arbiters of what happens in a courtroom. That may promote justice. But it’s not the job, or duty, of a judge to do justice.

Defense attorneys are supposed to be ethical. Though required to be “fierce advocates,” they cannot cheat, or deliberately mislead courts, or juries.

Unfortunately, too many prosecutors either do not know, or forget, that their jobs are to do justice. In my experience, it’s like they see themselves fairly simply as an adversary on one side of the adversarial system. Certainly, it’s easy to see how that would happen. After all, if it’s an adversarial system, then you might think there should be at least two adversaries. But that’s a bit of a misconception. It’s overdone, even if courts might occasionally seem to suggest differently. The system is adversarial. A defense attorney might rightly be described as an adversary, or someone who is adverse to the story the prosecution wants to present. But a prosecutor is not an anti-defense-attorney.

This is why there are not “two sides to the story” in a criminal case. I often hear jurors say they want to hear “both sides of the story” before passing judgment. That’s not how the system works. In fact, in our system, the defense doesn’t have to put on any evidence at all.

In our system, the prosecutor puts forth evidence that the prosecution believes will prove the guilt of the accused beyond a reasonable doubt. The defense attorney, adverse to the story the prosecution wishes to tell, may use various tactics to defeat it. The defense may tell a story of its own, or may attack particular elements of the prosecution’s story.

But prosecutors are not anti-defense: they are pro-justice. They tell the story they believe is true, utilizing admissible evidence to support believe in it beyond a reasonable doubt. If, despite the defense, the jury believes this beyond a reasonable doubt. The prosecution prevails.

I started this post because of the image which appears at the very top. A friend whose name is occasionally mentioned on this blog posted it to Twitter. The words that appear there are to some extent contrary to law, and in every way antithetical to the prosecution’s duty of justice. The words there are a threat that if a defense attorney attempts to defend the accused person, there will be serious consequences. They are meant to squelch attempts to exercise the constitutional and statutory rights of an accused person. They are not meant to do justice, because they intend to prevent the testing of the evidence that will be presented by the prosecution in any way. It doesn’t matter if it’s a procedural due process challenge, or a substantive due process challenge. It doesn’t matter if it’s an attempt to demonstrate how the prosecution has it wrong, or to otherwise show that the accused is innocent.

It is meant to remove the possibility of justice from the equation by preventing any kind of questioning of the prosecution’s case. It is meant to avoid dismissals, or acquittals, and to ensure that the prosecutor “wins” the case.

And it is wrong. It adds a new crime to the list of crimes the accused has been accused of: trying to exercise his constitutional rights. It appears to aim to prevent accused persons from arguing for innocence, to ensure the accused are punished for trying to defend themselves.

This is not justice. It is the opposite of justice.