When talking to someone “in trouble” with the law, I often refer to myself as the One-Step-At-A-Time Guy. Potential clients —and clients — will ask me what is going to happen with their cases. I say I can’t predict the future. I don’t make promises.
Too many lawyer promises — especially at the beginning of a case — are just empty words.
I don’t make empty promises, because I only make one promise: That I will use all my training, my knowledge, and my skill to fight the best fight, for the best result, that I can. That is the one promise that I can always keep.
And the best way I’ve found to do that is to take things one step at a time.
Creativity & Law
I enjoy the process of creation. My hobbies include photography — where I have won more than a dozen awards — and writing. I like to think this creative drive is what also makes me successful at lawyering.
Many, many years ago, when I was first starting out as a lawyer, I argued a motion. I don’t remember what the motion was. It was something “different.” Unique.
I remember the judge was skeptical. We volleyed back and forth about whether he would even let me argue it, as I gave him a preview of my proposed argument. Finally, he said, “Well, Mr. Horowitz, I’m not buying this right now, but you’ve changed my mind before. So I’m going to give you a chance to change my mind.” He set a new court date for us to come back to argue the actual motion.
As I was leaving the courthouse, two lawyers followed me. It was nothing sinister. I knew them both. One was one of the top private criminal defense lawyers in Fresno; the other was an upper-level Public Defender. Unbeknownst to me, both had been watching me in the courtroom. The Public Defender even said, “I had somewhere else to be, but I couldn’t stop watching.”
He then asked, “How do you get such interesting cases?”
I said, “Well, it wasn’t interesting when I got it.”
That’s completely true. It was not interesting when I got it. But, in trying to fight the case, I just looked at everything I had — and everything I did not have. I did not have much. I couldn’t go this way. Couldn’t go that way. I had no idea where things were going to end up. I just knew I needed to take the wind out of the prosecution’s sail. And I could only do that one step at a time.
So my creative mind said, “What if we try this as our next step, and see where it takes us?”
Our Victim-Centered, Rights-Hating System
I don’t always enjoy being a criminal defense lawyer. I hear that back in the 1960s and 1970s, it was more fun. Judges read, and understood, the law. And we had not yet decided to toss all that in favor of a victim-centered, rights-of-the-accused-hating system for filling prisons, or creating an increasingly-impoverished perpetual underclass.
I suspect that back then, it was much easier to know where to go, which step was the next step, and where those steps were going to lead. After all, there was the law to guide us.
Things are much more difficult today. Courts have largely tossed the core tenets of the law. Judges may — on rare occasions — pay lip service to the key idea that an accused person is presumed innocent unless convicted by a jury of 12 people. But from the moment someone is arrested, judges — and thus the “justice” system — presume them guilty. Everything after that is about the poor victim, without a thought that it might be someone else who “victimized” the victim — if the victim is a victim at all.
Don’t believe me? Go to court — in these days of never-ending COVID you can watch all but the Star Chamber proceedings (i.e., trials headed by judges who hate people seeing how they run trials) by Zoom — and see for yourself.
Gone are the days when Blackstone’s Ratio dictated that
It is better that ten guilty persons escape than that one innocent suffer.
— Wikipedia, “Blackstone’s Ratio” (September 21, 2021)
Today’s rule is the reverse of that. And, thus, the accused — especially, but not exclusively, the innocent accused — are victimized.
Marsy’s Law & the End of Presumption of Innocence
This change is a result of a decades-long push for “victims’ rights.”
“Marsy’s Law,” which originated in California, is a cancer that has destroyed the centuries-long rule of law that once required proof of guilt beyond a reasonable doubt. The cancer now metastatizes throughout the United States.
And thus, these days, judges and prosecutors will flatly tell you that their concern is for the victim: not the rights of the accused. Some courts even require judges to consider victims’ input on sentencing.
Yet, even groups that support victims of crime say this emphasis on victims’ rights in the courtroom undermines the law:
The assertion that victims deserve constitutional rights equal to the accused mischaracterizes how the justice system operates.
Granting equal constitutional rights to a victim identified at the outset of criminal proceedings threatens due process and diminishes fundamental principles of American justice.
— Laura Schipper & Beth Barnhill, “We’re Victims’ Rights Advocates, and We Opposed Marsy’s Law” (May 16, 2018)
Thus has Marsy’s “Law” destroyed constitutions, and the rule of law requiring proof of guilt.
No Presumption of Innocence for Bail Hearings
Is the judge considering whether to release an accused person on bail? Then to hell with the Constitution! Guilt must be presumed.
The U.S. Supreme Court warned in Boyd v. United States (1886) 116 U.S. 616, “Illegitimate and unconstitutional practices get their first footing . . . by silent approaches and slight deviations from legal modes of procedure.” In Boyd, the Court condemned invasions of personal liberty unless supported by “conviction” of a public offense. Stated differently, a person is not convicted once accused. If “Presumed Innocent” means anything, it should mean not being jailed prior to trial.
— Ivan O. B. Morse, “Presumption of Innocence and Bail in California” (not dated)
Nevertheless, every day people are arrested, and many kept in jail up until trial.
It was once the law, mandated by the United States Constitution, that we presume innocence until a jury decided otherwise. But,
Like most states, California allows courts to deny bail when the facts underlying the qualifying charge are “evident” or the “presumption great.”
— In re White, 9 Cal. 5th 455, 463 (2020)
In practice, judges will tell you this requires them “to presume guilt for purposes of this bond hearing.” They might not completely deny bail, but, as even the White case points out, they will “assess” the evidence “in the light most favorable to the prosecution.” Id.
Despite Humphrey, this too often results in bond set too high for the accused person to afford, and so they cannot go free before trial.
There is, after all, the safety and protection of the public to consider. And releasing people just because they are presumed innocent unless proven guilty gets in the way of that. They might be innocent. But locking them up until they are proven innocent is the safest thing.
No Presumption of Innocence for Preliminary Hearings
What about preliminary hearings? Again, the judge will presume guilt.
Wait. What? Then why have a preliminary hearing?
Why, indeed. I recently had a young prosecutor suggest — because the preliminary hearing was causing inconveniences in finding a date that worked for both of us — that I waive the hearing, since he was going to win anyway based on the standard of proof.
Allegedly, preliminary hearings determine whether there is “probable cause” to believe a crime has been committed, and the accused person has committed it.
“Probable cause” does not mean what you think it means. It has literally nothing to do with whether or not it is probable that the accused person committed the crime.
If evidence is presented that maybe a crime was committed, and maybe the accused person did it, that’s enough. Because the standard is “Maybe” times “Maybe”; and, maybe times maybe means pretty much zero evidence is required. The accused person must be held to answer. Off with his head!
Introducing evidence showing that he is probably innocent is irrelevant.
If there are two equally plausible interpretations at a preliminary hearing, one of which implicates the defendant and one of which exonerates them, the chances are very good that the judge will hold the defendant to answer and bind the case over to a trial court.
— Eisner Gorin LLP, “Preliminary Hearings in California Felony Cases” (undated)
More than very good, it is a near certainty.
And, well, since the accused refused to accept the generous plea bargain from the prosecutor, the accused deserves it, anyway. Off with h—
Er, off to trial!
Mythical Presumption of Innocence at Trial
So now we’re at trial. This is where the judge will pay lip service to the presumption of innocence. The judge will “instruct” the jury on this presumption.
But everybody knows that the jury is there because someone broke the law. Who could it be, but the “defendant”? It’s not the judge. Not the prosecutor. It certainly isn’t a juror, is it?
Maybe the defense attorney.
Let’s stick with the “defendant.” We wouldn’t want to think it was someone not present, after all. That would require doubting the police, and the DA who was kind enough to file charges for the victim.
And so, the “defendant” — no one, except maybe a wise criminal defense lawyer, will ever call the “defendant” by his, or her name — in this new day, must now overcome the presumption of guilt. Sometimes, when choosing a jury, a potential juror will even say this out loud. Poof! That juror is gone. The other jurors learn, and hold their peace.
Often jurors say they will “wait to hear both sides of the story.” These jurors are saying they require the accused person to provide evidence — evidence that they did not do what they are accused of doing.
Constitutionally, there is no “both sides.” The prosecutor makes accusations. This is a “positive” statement; in other words, the accused person did something. Suggesting the accused person must prove he, or she, did not do something requires them to prove a negative.
Proving the Universal Negative
But this is exactly what should show us that we have turned things around in a way that subverts real justice.
Because it is essentially impossible to prove a universal negative [i.e., “I did not do that thing”], this tactic incorrectly places the burden of proof on the skeptic rather than the claimant.
— Scott O. Lilienfeld, et al. Science and Pseudoscience in Clinical Psychology: Initial Thoughts, Reflections, and Considerations in Science and Pseudoscience in Clinical Psychology 1, 8 (Scott O. Lilienfeld, et al. eds., 2d ed. 2015)
In court, as in science,
[T]he burden of proof…rests on the individual making a claim, not on the critic. Proponents of pseudoscience frequently flout this principle and instead demand that skeptics demonstrate beyond a reasonable doubt that a claim…is false. This error is similar to the logician’s ad ignorantium fallacy (i.e., the argument from ignorance)—the mistake of assuming that a claim is likely to be correct merely because there is no compelling evidence against it.
— Scott O. Lilienfeld, et al. Science and Pseudoscience in Clinical Psychology: Initial Thoughts, Reflections, and Considerations in Science and Pseudoscience in Clinical Psychology 1, 8 (Scott O. Lilienfeld, et al. eds., 2d ed. 2015)
Pseudolaw, like pseudoscience, demands that skeptics — those who believe in the presumption of innocence — demonstrate beyond a reasonable doubt that the accusation is false.
Lawyering One Step at a Time
We walk through this minefield — the modern pseudolaw which has flipped the law on its head — one step at a time. We cannot prove a negative. The accused cannot prove innocence, especially when there is no evidence, but the word of the accuser, who must be believed.
Lawyering into the Dark
Trusting in Uncertainty
I thought of the above while reading a book about writing this morning. I have a love/hate relationship to writing. At times, I have — on little evidence, since I am biologically male — compared it to birthing a child. Consequently, I am always reading books about writing, in the mostly-vain hope of making the process easier.
In Chapter Three, I read this passage:
When a writer lets uncertainty be a bad thing, it’s like tossing open a window and inviting into your writing office all the fears and critical voice you can find. And once in, those fears and critical voice will slow you down and stop you.
— Dean Wesley Smith. Writing into the Dark: How to Write a Novel Without an Outline loc. 221 (Kindle ebook)(2015)
Smith goes on to say,
What I want to do is help you understand that uncertainty is a welcome feeling when writing into the dark.
— Dean Wesley Smith. Writing into the Dark: How to Write a Novel Without an Outline loc. 221 (Kindle ebook)(2015)
Smith notes that
When writing into the dark, the story will often come in parts, and sometimes the parts aren’t in a real order.
[…]
[S]ometimes, like a cave explorer, you have to see what is up a certain cave until it dead-ends into a rock wall. Since you are walking into the dark, a dim flashlight your best guide to see the step ahead, you won’t know until you find the dead end that you were on the wrong track.
— Dean Wesley Smith. Writing into the Dark: How to Write a Novel Without an Outline loc. 335 (Kindle ebook)(2015)
And it struck me then that this is the best way to understand modern criminal defense, too. Everyone else is certain that the accused person is guilty. My entire job is to try to get them to doubt this, to instill uncertainty, and to question their presumptions — particularly the presumption of guilt.
I do this by dismantling the prosecution’s story, and sometimes by telling my client’s story while cross-examining the prosecution witnesses.
Finding Uncertainty in the Case, One Step at a Time
How do I do this? How do I get there?
One step at a time.
The first step is to find, and embrace, the uncertainty myself.
Too often, I find that uncertainty in myself, because “the law” these days is no guide. Much contemporary, or modern, or recent law is victim-oriented, and rights-destroying. So I think about that, and think there’s nothing I can do; I become unsure of myself, rather than of the case. Thus, I fear the uncertainty.
This is the critical mind that interferes with creativity. It makes the case uninteresting: the accused was arrested, here we are now in court, and now let’s figure out how to resolve this case with a conviction. This is how the case comes to me: it wasn’t interesting when I got it!
And because so little of what happens in a courtroom these days depends upon the law, creativity is how cases are won.
Thus, at the very least, because the infusion of victim-centered, constitutional-rights-erasing, mob-driven propositions has muddied things up, I need to do some spelunking — legal cave diving — to find previously-hidden raw materials that reveal the uncertainty in the case, which my creative side can use to fight, rather than finding uncertainty in myself.
And so, I am the one-step-at-a-time guy. I seek the uncertainty in the case. I step into the cave to find what I need to create uncertainty in those who have the power to decide — the judge, the jury — I try to bring them to the place where they can see the uncertainty I have found.
One step at a time.
Because, after all, I am lawyering into the dark, hopefully creating a path to victory as I go.
As usual, well done. Very insightful and thought provoking!
Thanks! Always good to get a comment. Sometimes I wonder if anyone is actually reading this stuff.