Our system is irrevocably broken.  Nothing short of a new Revolution would fix it.  And I’m not at all sure the Americans of today can fix it even then.  We can only, at best, tear down the present Tyranny. 

And why is that? 

Brian Tracy, in his book No Excuses!: The Power of Self-Discipline, writes:

In the United States, we have a Constitution and Bill of Rights.  These documents lay out the rules by which Americans agree to live.  They create the structure of our government and guarantee our rights.  But they assume that our elected representatives will be men and women of honor, committed to protecting and defending those rights.  They attempt to ensure that only men and women of character can thrive and prosper over the long term in our economic, political, and social system.  They aim to assure that, in most cases, only men and women of character can rise to high positions in society.

Frankly, I don’t know that I agree with Brian Tracy concerning the aim of the rules laid out by the Constitution and the Bill of Rights, at least in terms of the aim being to assure that only certain kinds of people thrive, prosper, and rise to high positions in our society.  It makes some sense that this might be the end result of a system based on our Constitution and Bill of Rights, but I think the aim is much simpler than that: the aim is simply to guarantee life, liberty and the pursuit of happiness is available to each human being.   In particular, it gives the government certain limited powers necessary to structure a society where that is possible, while simultaneously trying to ensure that government doesn’t exceed those powers in a way that negatively impacts individual choices regarding life, liberty and the pursuit of happiness.

He’s dead right, however, about the rest of it.  The Constitution and the Bill of Rights are completely useless unless our elected representatives are men and women of honor, committed to protecting and defending those rights. 

And, increasingly, they are not. 

Day after day, I go out to “do battle” in an adversarial system the goal of which is sometimes described as “to seek justice,” or, at the least, “to preserve the social order.”  But “preserve the social order” can mean a lot of things.  If it means something like “preserve the world in such a way that the haves continue to have and the have-nots continue to have not,” then there is no relationship to justice.  If it means “to provide a means whereby those who have been wronged can have some chance of being made whole again” and “to provide a means whereby those who have proven they are not able to live in a civilized society can be handled in such a way as to assist them in becoming less harmful to others, or in a way that protects us when they will not ‘reform,’” then there is the potential that it connects to the concept of Justice. 

Increasingly, our “Justice” system has become disconnected from the concept of Justice — whether you like to spell justice with a capital “J” or not.

This, I’ve found, is a difficult world for me to live in.  It’s the kind of world in which I find myself increasingly on the side of troublemakers — I do not mean “criminals,” although certainly if I were to take the obvious path of armed resistance, that would make me into a criminal in the eyes of most people. 

And I have no desire to be a criminal.  I simply desire to interfere with the criminals who, increasingly, are running our system; nominally, our “justice” system.  And make no mistake, criminals are what they are: those who would destroy the values on which this once-great nation — this Great Experiment, as it was called — was founded, while making a pretense of upholding those values are worse even than the criminals who kill, rape, or rob from people.  They — the judges, the prosecutors, the law enforcement officers who consider the Constitution an impediment to the achievement of their goals — destroy an entire society.  They bring to an end our Great Experiment. 

Constantly having to fight them all frequently feels, at least for me, like an overwhelming task.  How do you handle working in a system where, for example, ex parte communications between judges and victims, judges and probation officers, or judges and prosecutors are so routine that judges don’t even try to hide it because they don’t actually recognize it as wrong?  How do you handle working in a system where the antagonism to accused people, or (and these are connected) the support of “victims” has become so strong that unfairness is built into the system?  How do you justify being part of a system in which the authorities aggressively pursue DNA testing to prove a dead man killed his wife, but vigorously resist efforts to allow DNA testing to prove a man’s innocence?  What do you do when judges consistently side with the prosecutors on such issues?

Our system has become skewed because we have forgotten what we once knew.  The Founders established a system that should have lasted for the ages.  As Brian Tannebaum has pointed out,

Four of the first ten amendments, otherwise known as the Bill of Rights, were written for the criminal justice system.

And he went on to say,

To sum it up, the criminal defense lawyer mirrored the philosophy behind the creation of America – a mistrust of government, a method of redress, and liberty. The criminal defense lawyer was given important powers to question government and assure that any attempt to take away liberty was done with strict scrutiny.

“Strict scrutiny.” 

Any scrutiny these days generally has one result: arrest. 

Despite all the above, as Scott Greenfield notes, Americans, although distrustful of the “justice” system, continue to believe in, to support the police.  How we became transformed from a nation that distrusted authority into one that blindly supports it is beyond me.  But it is increasingly clear that most Americans bear an uncanny resemblance to sheep, while too many others resemble Norm Pattis’ sheep-fixated dog, Odysseus. 

Norm has learned the futility of trying to fight “Ody’s” inbred over-herding of sheep.  The best Norm can do is keep Ody away from them. 

Our Constitution and its attendant Bill of Rights were intended to do that — to keep the Odysseuses in our nation away from the sheep (and all the rest of us), to allow us the security of life, liberty and the pursuit of happiness unencumbered by those in whom the tendency to herd everyone else was overbred. 

But the fence is broken.  Where the courts haven’t actually torn it down, it is simply ignored. 

The Fourth Amendment?  The Odys merely testi-lie that they had permission.  The courts believe them because everyone illegally possessing marijuana is okay with showing it to the po-po.  The Fifth Amendment?  The stupid sheep didn’t realize they had to bleat exactly the right words to invoke their right, so their bleating of the wrong words is completely admissible in court.  The Sixth Amendment?  Who can afford that? 

And let’s not even discuss the long-absent Eighth Amendment, the loss of which means criminal penalties can increase without limitation in such a way that jails and prisons now load up on innocents who plead out, rather than risk the long-term consequences devolving from our current “justice” system.  This is done, again, with the full support of our courts. 

When the other branches of government don’t give the Odys enough power, the Odys will simply appropriate it anyway.  That’s what Odys the world over do. 

And me?  I’m getting tired of trying to chase the Odys away from the sheep.  Especially when the sheep don’t really appreciate it anyway.  It’s bad enough to have to fight the Odys, without having the fight the sheep, too. 

I sure do miss that fence.

The colonists — the white folk who lived in the United States before it was the United States — had already too much experience with judges who owed their positions to the King.

So it happened that when they set up their perfect and limited government, they sought to insulate the judiciary from any dependency upon others for their continued employment.  The Founders of the United States of America wanted to ensure that no person, or group of people, could gain control of the judiciary, to turn it toward supporting their own particular view of how the law should be read, and to prevent the possibility that judges could be removed from office for making unpopular decisions. Judges, they thought, should follow the rule of law, enforcing the Constitution and the laws passed by legislatures consistent with that Constitution.

As a group from San Diego is now explaining, the allegedly-Christian Founders forgot about God.

The San Diego group, Better Courts Now, explains how their God basically got in touch with them and called upon them to do something about this more-than-200-year-old tradition travesty of justice:

“We believe our country is under assault and needs Christian values,” said Craig Candelore, a family law attorney who is one of the candidates [to displace four San Diego judges running for re-election].  “Unfortunately, God has called upon us to do this only with the judiciary.” (Julie Watson, “Candidates vow to follow God’s will” (May 31, 2010) The Fresno Bee, A1, col. 4, available online with a different title.)

I’m not at all sure why God has gotten so selective, but I’m grateful that the judiciary will at least retain enough independence to call this move by God “unfortunate.”

On the other hand, it’s entirely possible the San Diego group has misunderstood things.  Perhaps God thought the original Founders got it right.

After Don Hamer, for example — alleged to be the actual brain behind Better Courts Now (and you thought it really was God!) — founded the movement and later campaigned against gay marriage, God smote him with a heart attack.

Unwilling or unable to realize that, “unfortunately,” God apparently didn’t want them going after the American Experiment in freedom, or the judiciary,

[Hamer's] fellow Pastor Brian Hendry and other supporters have carried on his legacy, launching the mostly online campaign to replace the incumbent judges — all Democrats — with Christian conservatives.  (Watson, supra, A9, col. 5.)

Just in case God decides to get uppity again and take some more of them out, they’ve convinced the El Cajon Gun Exchange to back them up.

God, by the way, is apparently not the only opposition these Christian conservative candidates face:

The bar rated Candelore and his running mates Bill Trask and Larry “Jake” Kincaid as “lacking some or all of the qualities of professional ability, experience, competence, integrity and temperament indicative of fitness to perform the judicial function in a satisfactory mode.”  (Watson, supra, A9, col. 6, emphasis added.)

Since it may be hard for those of limited intellect or committed religious principles — and I absolutely do not equate the two, so save your gnashing of teeth for someone else — let me say that, yes, I’m mocking this group, but I am not thereby intending to mock Christians, Christianity, or the God that any of them (or anyone else, for that matter) may choose to worship.

In fact, one of the reasons I support the same limited form of government initiated by those who established this once-great country is because, quite frankly, I make room for the possibility that I — and anyone who might agree with me — does not necessarily have a handle on the best way to live, or even to structure a society.  This includes my recognition that although I’m perfectly comfortable with my own religious views, or potential lack thereof, which I will not bother explicating here, it may be that I’m wrong.

For that reason, I wholeheartedly endorse the approach of the Founders.  Let’s create a country where every man, woman, and possibly even their children, is free to choose how — or whether — to worship God.  Let’s build a nation that is able to embrace the whack-jobs from San Diego as well as those who whack one another off in San Francisco.

Allegedly, a couple thousand years ago, some famous guy said:

Judge not, that ye be not judged.  For with what judgment ye judge, ye shall be judged: and with what measure ye mete, it shall be measured unto you.  And why beholdest thou the mote that is in thy brother’s eye, but considerest not the beam that is in thine own eye?  Or how wilt thou say to thy brother, Let me cast out the mote out of thine eye; and lo, the beam is in thine own eye?  Thou hypocrite, cast out first the beam out of thine own eye; and then shalt thou see clearly to cast out the mote out of thy brother’s eye.  (Matthew 7:1-5, American Standard Version.)

Now there’s been a helluva debate over the meaning of these words and — although I did study enough Koiné Greek when I was younger to translate such things for myself — none of my posts here are ever intended as expository Bible lessons.

Still, I think a fair case can be made for saying that this passage is consistent with what I suggested above: let’s build a country where people can judge themselves, applying the measure to themselves that they would like others to apply.  I believe it’s entirely possible that, having removed the beams from their own eyes, groups like the one in San Diego might then be more inclined to act as Jesus did, when people were brought before him to be judged.

And the scribes and the Pharisees bring a woman taken in adultery; and having set her in the midst, they say unto him, Teacher, this woman hath been taken in adultery, in the very act. Now in the law Moses commanded us to stone such: what then sayest thou of her? And this they said, trying him, that they might have whereof to accuse him. But Jesus stooped down, and with his finger wrote on the ground. But when they continued asking him, he lifted up himself, and said unto them, He that is without sin among you, let him first cast a stone at her. And again he stooped down, and with his finger wrote on the ground. And they, when they heard it, went out one by one, beginning from the eldest, even unto the last: and Jesus was left alone, and the woman, where she was, in the midst. And Jesus lifted up himself, and said unto her, Woman, where are they? did no man condemn thee? And she said, No man, Lord. And Jesus said, Neither do I condemn thee: go thy way; from henceforth sin no more.  (John 8:3-11, American Standard Version.)

Again, this isn’t a Bible lesson.  But it seems fairly straightforward.  These two sections taken together might give one pause.  “What if we don’t really have all the answers?  What if it only seems that way because we’re seeing the world through beam-colored lenses?”

It seems to me that if there are those of you out there, like San Diego’s Better Courts Now, who really and truly want to build a more Christian nation, you’ll create a world where, like Jesus, you encourage people to live according to their own consciences.

And judge not.

The article itself was basically just a reprint of one that was supposed to appear in the Wall Street Journal on June 6, 2008.  It was a user comment that struck me more and inspired this post.

I don’t normally write about non-criminal law issues, but since this involved a sheriff picking and choosing what duties to perform, it seemed an acceptable fit here.

The commenter praised the sheriff because even though what the sheriff did was “against the law,” it was the morally right thing to do.  At least, it was the morally right thing to do in that commenter’s opinion.

I disagree.  At least I think I disagree.  (Keep reading!)

So when I read the comment praising the sheriff, I started to post the following comment in response, but then decided that since my comment was getting a little long, and since that post was so old, and since my current briefing schedule has temporarily interfered with my completing a blog article for this blog, I’d post it here instead.  Hopefully, it will inspire some fresh commentary, because (when I stop and think about it), I’m not 100% sure how I feel about this myself!

This is what concerned me and what I started to post:

Does that mean you think the law does not matter?

I agree that it would be great to find a way to help people keep their homes.  However, approving of the sheriff’s refusal to enforce existing law just because you like the result is bad precedent.

What will you do when he decides — based on his own moral code — to refuse to enforce laws that you think are good?  What will you do if he decides to take away some of your rights, because they get in the way of what he wants to do?

Because that’s exactly what he’s done here: he’s taken away the rights of those who paid for the property.  Remember, when you buy a house, the bank actually pays for it.  You then pay the bank back.  If you don’t pay the bank back, you’ve taken their money.  If the sheriff refuses to evict you and sell the property, he’s a government agent endorsing an improper taking contrary to the Fifth Amendment.

In fact, it’s even worse, because he’s not really taking private property for public use; he’s merely endorsing your theft of property.  One can argue he’s taking private property from one party (the bank) for private use by another (you).

Frankly, I believe banks need to be better regulated so that they cannot take advantage of people who don’t always understand the long-term consequences of their acceptance of the kinds of loans the banks give them.

But a sheriff who decides which laws to enforce and which not to enforce is no sheriff at all.  He is, in essence, no better than a criminal, ignoring the rule of law.

When the law is “wrong” and hurts people, the law should be changed by the legislature; not because the sheriff decided to ignore it.

Now, mind you, I’m not unaware — as I believe I pointed out above — that it’s a real shame what’s happening to people in the current market, with the economy and housing going the way it is right now.  My own house is “upside-down,” as they say.

I’m also aware that the Adjustable Mortgage Rate (ARM) type of loan that many people (including me, by the way) bought into is the cause of many a default when the rates zoom skyward.

Something should be done about this.  From what I understand, the last run of defaults is about to be repeated in a new wave this coming year when several people (myself included!) will see their ARMs kick in.

But that “something” is not for a sheriff to take it upon himself to decide that he won’t perform his duties — to decide that it’s okay for banks to be stiffed — because homeowners are suffering.

I hope banks do end up losing out for their refusal to help fix a mess they helped create.  (People like me who made misjudgments about how these loans would play out helped, too.  And we are losing out, believe me!)

But, again, I’m not at all sure that the answer is a sheriff who refuses to do what his job requires.

Now that I’ve said that, though, let me throw this out there:  What if sheriffs throughout the land had refused to endorse “Jim Crow” laws in the last century?  That would have been a moral thing, right?  But it would also have been contrary to law, right?  And it’s the duty of sheriffs — as with all law enforcement officers — to uphold the law, right?

The water is a little murkier now.

I can’t even completely argue that the situation is different here because the foreclosure problem just has to do with people losing their homes — it’s a property question — and “Jim Crow” laws weren’t.  But weren’t they, to some extent at least, property laws?  White bigots wanted to bar African-Americans from access to their property.  White bigots wanted to choose to whom they would provide services.  White bigots, having power, wanted to use the power to their own advantage and to the disadvantage of non-whites.

How is that different from what the banks want to do now?

But if — as I do strongly believe — it would have been acceptable for sheriffs to refuse to enforce “Jim Crow” laws, why is it not acceptable for sheriffs to refuse to force people from “their” homes and sell them on behalf of the banks who actually own them?

I don’t have an answer.  It’s definitely something for me to mull over.  My fear is that saying it’s alright for a sheriff to pick and choose which laws to follow — and how — is contrary to the rule of law and ultimately hurtful to us.  The Benevolent Fascist is no more welcome in my world than The Nasty Fascist.  Today, the duty the sheriff refuses to perform is enforcing laws pertaining to mortgage contracts, foreclosures and sales of foreclosed homes.  Tomorrow, might not it be our civil rights?

Or is this just a cloaked slippery slope argument?

You see, I’m what’s known as an idealist: I think the law should be understandable and it should mean what it says.  Some people think that makes me stupid; some think it makes me naïve; some (few) think it makes me a good guy.

I think it makes me an American.  True Americans are naturally idealists.

I know, I know.  Just by my making the claim that “true” Americans are naturally idealists, I’ve pissed off a whole bunch of the rest of you, including a whole bunch of criminal defense lawyers.  You know what?  I don’t really care.  If you’re not fighting your ass off for the ideals that protect your clients, then as far as I’m concerned you’re a crappy criminal defense lawyer.

The United States was founded by idealists.  The Declaration of Independence and the United States Constitution are paeans to idealism.

When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. (First third of the Declaration of Independence.)

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. (Preamble to the United States Constitution.)

What could be more idealistic than these words?  These words were the Truth and the Inspiration for which the Founders of the United States fought the great war that created the United States.  These are the words our Founders died for; these are the words for which the first few generations of their descendants lived.  Without these words, the United States would not exist.  This is particularly true of the Constitution, since the Constitution constitutes, or brings into existence, the structures and institutions of the government of the United States.

So I’m an idealist.  I’m proud to be an idealist.

And I think it’s because I’m an idealist that I hate legal fictions.

Legal fictions are the words courts use to pretend that they are doing something fair; something noble, even.  Or at least something “required” by the Law.

The reality is legal fictions are not much more than lip service to our ideals.  By saying certain words, we verbally endorse what they purport to stand for.  “Innocent unless proven guilty”; “beyond a reasonable doubt”; and so on.  If we just say the magic words, we’ve done our duty.

At least (theoretically), these legal fictions are understandable.  But as Gideon’s post points out, the embrace of legal fictions goes beyond such noble, empty phrases.  Though everyone actually working in the legal community knows that there’s no such thing as a free lunch there are no good-hearted snitches informants, the prosecutors, law enforcement and judges wink and nod and accept the legal fiction that there are.  Similar problems of understandability — particularly vagueness and overbreadth — affect anti-gang legislation.  Defense attorneys try to fight back, but we’re not infrequently hampered by another legal fiction called “discovery.”  (Actually, this one might be aptly named: if a defense attorney can discover it, he might be able to have it.  The problem is in discovering it when it’s in the hands of the prosecutor and law enforcement.)

Other legal fictions, as criminal defense attorney Scott Greenfield from New York recently wrote, also involve witnesses.  Scott wrote about a judge who refused to dismiss a lawsuit against New York City because, as the New York Daily News reported him saying,

“Informal inquiry by [myself] and among the judges of this court, as well as knowledge of cases in other federal and state courts … has revealed anecdotal evidence of repeated, widespread falsification by arresting officers of the New York City Police Department….”  The judge said that despite better training for recruits and tough disciplinary action for bad cops, “there is some evidence of an attitude among officers that is sufficiently widespread to constitute a custom or policy by the city approving illegal conduct.”

The judge tempered his comments a little by stating, according to the Daily News, that “while the vast majority of cops don’t engage in crooked practices, it was common enough to be an institutional problem.”

That “institutional problem” is not limited to New York.  Increasingly, law enforcement units are nothing more than state-sanctioned gangs, complete with their own pet names (“monikers”) for each other, cool names for their gangs (like “MAGEC”) and sometimes even tattoos. I still get a kick out of this legal fiction:

Though members of the Los Angeles Police Department may commit an enumerated offense while on duty, the commission of crime is not a primary activity of the department.  (People v. Gamez (1991) 235 Cal.App.3d 957, 970-971 [286 Cal.Rptr. 894], emphasis in original.)

However, if one member of the Bloods, Crips, Bulldogs, Norteños, Sureños, or any other “street gang” commits one or more of the same enumerated offenses on multiple occasions, or two of members of these groups each commit one of the enumerated offenses on one occasion, then the commission of crime is a primary activity of the gang.  Why?  Because the court said so.

I’m not making that up.  It’s all made possible by the vagueness and overbreadth of anti-gang legislation I mentioned above.  And it’s true because the court said so.  No other reason.  Now that’s what we call a legal fiction!

In fact, it goes farther than that.  If a police officer testifies that he is an expert on gangs, he is thereafter an expert on gangs.  Why?  You guessed it: legal fiction.  You see, he wouldn’t testify to that if he hadn’t heard a lot of stories about what gangs are like from other police officers who called themselves experts.  Oh, yeah, I almost forgot: part of his expertise will be based on the fact that he has arrested gang members some number of times.

Courts accept this legal fiction for a lot of reasons.  For one thing, bringing in real experts on gangs — the anthropologists, sociologists (including even some pseudo-sociologists, the criminologists), and psychologists who actually have training in the study of groups and then actually study the groups instead of just arresting them — won’t back up the prosecution as often.  They aren’t paid to do that like police officers who call themselves “gang experts” are.  Another reason is that the courts need “gang experts” because without them juries would not get to hear a lot of the largely unsubstantiated, hearsay-based, prejudicial information that prosecutors need to get convictions.  Because you can often (not always, but often) bet that if there’s a gang “expert” in the case, that means the case itself is probably not incredibly strong.

Without a “gang expert” to tell the jury that the “gang member” (who may or may not actually be a gang member, by the way) is a scumbag, or at least that his friends are scumbags, and to tell the jury that he is guilty, the prosecution would have to prove its case.  If they wanted to talk about the primary activities of gangs, for example, they’d have to get a bunch of gang members willing to testify about what they do all day.  And how’s that going to help, even if they could make it happen?

Prosecutor: “So, what are your primary activities?”
Gang member: “Huh?”
Prosecutor: “What do you do all day?”
Gang member:  “Yeah, well, uh, we kinda sit around and kick it.”
Prosecutor: “Kick it?”
Gang member: “Yeah, you know.  We talk with our homies and drink beer and chat up the ladies.”
Prosecutor: “What about drive-by shootings?”
Gang member: “I thought you asked, ‘What do you do all day?’”

So now we get to the heart of “legal fictions.”  The purpose of a legal fiction is to allow us to pretend that we’re actually seeking justice, when we’re really just trying to process cases and lock up people we don’t like.  In fact, you might say that “seeking justice” is the biggest legal fiction of them all.

Can you see why an idealist, someone who truly believes in the ideals, might be a little irritated by legal fictions?

When I was young — and I swear to you that once, I was — I saw a comedy routine by a Christian comedian. I don’t remember many of the details, but I think he was making fun of Christian Scientists because they believed that they could just wish the world to be as they wanted it to be, regardless of reality.

In his routine, he told of a Christian Scientist who stepped off a curb in front of a bus.  He didn’t look both ways first because in keeping with his religious beliefs, if he wanted the road to be clear and his passage safe, that’s what would be.

As he lay there on the gutter, he said, “I didn’t just get hit by no bus!  My left leg bone isn’t sticking out of my right ear!”  Or something like that, followed by uproarious laughter.

Notwithstanding the doctrine of the separation of Church and State, this seemingly ignorant approach to life has served the courts quite well for the last couple of decades.  It’s apparently not meant as a joke; nobody’s laughing; and the courts take this approach with a perfectly straight face.

The Daily Journal — a publication which has the monopoly on the Daily Appellate Report and therefore doesn’t have to answer its phones or talk to anyone if it doesn’t want to, even to let them sign up for services — had a story today that shows how the doctrine works in our system of “law.”  The article, “New Standard for ‘Move-Aways’ in Child Custody Battles,” notes:

Traditionally, a parent seeking to change custody arrangements bears the burden of demonstrating that a “change of circumstances” necessitates the requested change…. Over the last decade, however, several California courts have espoused a more fluid approach, opting not to apply the “change of circumstances” standard.  (Stacy D. Phillips, et al, “New Standard for ‘Move-Aways’ in Child Custody Battles” (October 29, 2009) Daily Journal, p. 6.)

There are procedures for altering the law in a constitutional democracy when the law isn’t working as well as we’d like.  Admittedly, the procedures themselves don’t work very well, because they depend upon the Legislative branch of government, which has largely abandoned its traditional role of legislating in favor of devoting its meager resources to finding ways to get lobbyists to pony up more of the cash Legislators so desperately crave.

Yet, technically-speaking, the law of the land — and thus the law the courts should be following — has the Legislative Branch passing laws while the courts merely apply the laws to the cases before them, or, if the laws are vague, they will provide, in the process of applying the laws to the cases before them, an interpretation of the law.  They will explain the meaning of the Legislature’s law; they (theoretically) won’t make up one out of whole cloth.

Under this system, if the law isn’t working out so well, that’s a bummer: the courts have no authority to change the law.  Changing and repealing laws that aren’t working out, like the job of passing them in the first place, is left to the Legislature.

In California, “the Legislature” arguably includes ordinary citizens with or without much common sense who may or may not be swayed by false or misleading advertising, who have registered to vote, and who then actually do go and vote on disastrous pieces of pseudo-legislation usually sponsored by corporations or churches referenda.

This is how laws get made because in either a republic (i.e., representative democracy) or by mob rule straight-out democracy, those who govern do so only in accordance with the will of the governed.  The United States started out as a republic and has been increasingly evolving towards mob rule a straight-out democracy, with California leading the charge to eliminate the republican form of government.

(Aside: Benjamin Franklin, immediately following the Constitutional Convention in 1787, where the United States Constitution came into being, was asked: “Well Doctor, what have we got, a republic or a monarchy?”  Franklin replied, “A republic if you can keep it.”)

Well, that’s how it’s supposed to be.

In actuality, when a court in California needs a law that doesn’t exist, or doesn’t like the way an existing law is working out, it makes up a new one, or just refuses to follow existing law, or both.  In many such cases, an appellate court then gets a chance to look at the trial court’s decision.  If the appellate court likes what the trial court did, it may also choose to ignore the law, accept a new one made up by the trial court, make up its own new one, or all of the above.

In the particular case discussed by the Journal article, notwithstanding the trial court’s failure (refusal?) to follow the law,

The court of appeal nonetheless affirms the trial court order, ruling that the mother did not need to show a change of circumstances based on the reasoning that “the [trial] court did not change custody,” but merely changed the parenting plan.  The court of appeal further states that despite the fact that the court gave the mother permission to relocate the child, “the court continued joint custody with a modified co-parenting arrangement.”  The court essentially concluded that changing a 50-50 division of custodial time to a 75-25 division, caused by one parent moving with the child to another state, did not amount to a change in custody, and that therefore, the moving parent was not required to show a change of circumstances.  (Phillips, supra, at 6, citing Niko v. Foreman, 144 Cal.App.4th 344 (2006), alteration in the original.)

The article goes on to note that this case has caused confusion and controversy for three years now and ponders the question of what the court was trying to do and why.  But regardless of what the court was trying to do, what it did do is ignore what it didn’t like about the law as it stood.

Now, when the parties disagree with the actions of an appellate court in California, if the parties have enough money and energy, there is still recourse to the California Supreme Court.

The rule in the California Supreme Court?  If you guessed that it’s the same rule the appellate court follows, you’d be wrong, because the appellate court can’t refuse to hear an appeal, but the Supreme Court can.  So long as the California Supreme Court is happy with the result in the appellate court, or is too busy to correct any abuse of the law at that point in time, the Supremes will refuse to hear the case.

If some other appellate court in a different district of California has upheld the law and the California Supreme Court likes one of the decisions over the other, it may decide to put an end to things by taking the case and publishing an opinion supporting what the Supremes want the law to be.  It might even be what the law had always been.  I mean, they might actually affirm that the law is what the law says it is.  (Hey, anything is possible!)

In Niko, the Supremes refused to hear the case.  This left the holding of the appellate court, which had liked the decision of the trial court, in place.

Now, mind you, the lower courts would not join my analysis of how the law really works in California.  Not at all.  As far as they’re concerned, they did not ignore the law; they did not make new law; they merely “clarified” the law.  Besides, the “changed circumstances” rule was not legislative in the first place.

Wha…huh?!

That’s right.  “The change of circumstances standard is based on the principles of res judicata.”  (Burchard v. Garay, 42 Cal.3d 531, 535 [724 P.2d 486], quoting Sharp, “Modification of Agreement-Based Custody Decrees: Unitary or Dual Standard?” (1982) 68 Va.L.Rev. 1263, 1264, fn. 9.)

So what’s all this poppycock about laws being made by the Legislature and courts are supposed to just apply them?

Well, as I said above, that’s how it’s supposed to work.  As I also noted, that’s not how it really works.

And, probably, it couldn’t really work that way.  After all, the laws passed by the Legislature are incomplete.  They probably could not help but be otherwise, since they are general principles and as such cannot necessarily be directly applied to every case that comes before the courts.  It would probably always be the case that intermediary rules would need to be developed by the courts.

But, for one thing, those rules should — I mean, in our representative democracy and even following mob rule a straight-out democracy, they should — be tied in some way to the actual laws passed by the Legislature or by disastrous pieces of pseudo-legislation usually sponsored by corporations or churches referenda.  And for another, there should be some consistency to them.  At the very least, when the court changes them, the court should admit that they changed them and explain why.

The prime argument against Niko is that it refuses to call a spade a spade.  Let’s face it: when one parent moves to another state with the children of a marriage, how can a court say it is not a change in custody?  How can a 50-50 custodial arrangement that becomes a 75-25 arrangement not reflect a change in custody?  If parents make an end-run around the “change of circumstances” rule by arguing that a move-away merely marks a change in the “parenting plan,” both judicial decisions and custodial arrangements themselves will lack stability and continuity.  (Phillips, supra, at 6.)

So it goes.  When the courts decide they do not like what will happen if they follow the law, there really is just one rule that remains constant: the courts will do as they please, to obtain the result they want.

And not even God can help you if what you want is not what they want.  Because both the comedian and the Christian Scientist he joked about were wrong.  Neither of them could remake the world just by saying they had.

Only the courts have that power.

It is commonly said that ignorance of the law is no excuse. (People v. Meneses (2008) 165 Cal.App.4th 1648, 1661 [82 Cal.Rptr.3d 100].)

It is also commonly said that sausage and legislation are two things you don’t want to see being made.

Although I doubt he had the protection of your sensibilities in mind, the Roman Emperor Caligula developed a unique plan to hide the law from the people who were, nevertheless, held accountable for it:

[G]reat grievances were experienced from the want of sufficient knowledge of the law. At length, on the urgent demands of the Roman people, he published the law, but it was written in a very small hand, and posted up in a corner, so that no one could make a copy of it. (Seutonius, “Gaius Caesar Caligula” from The Lives of the Twelve Caesars, XLI, p. 280.)

California courts have found a better way.

In California, as everywhere else in the United States except (to my knowledge) Louisiana, courts are partly responsible for the creation of law. We call the particular type of law the courts create “case law” or, sometimes, “common law.” The foundation of this “common law” system is a concept known as stare decisis, which means “the court will do whatever it wants; how dare you ask us why we do what we do!”

No, actually stare decisis is a portion of the Latin phrase “Stare decisis et non quieta movere,” which means “Maintain what has been decided and do not alter that which has been established.”

The idea behind stare decisis in the law is that — contrary to what Caligula thought — people should be able to know what the law is, since they will be held accountable for it. Stare decisis is the doctrine that underlies the common law inherited through the centuries in our system. When a decision is made by a court, the rule (the “holding”) of a particular case becomes the definite understanding of the law going forward.

Stare decisis and the common law are a little more complicated than this, but for what I’m trying to explain here, this is a good enough explanation. Stare decisis is what brings predictability to the law and allows our society to, among other things, entertain the fiction that everyone should know the law — after all, it’s published and once published it’s not supposed to change (at least not overnight) — and thus everyone can properly be held accountable. Thus it provides the justification for the statement that “ignorance of the law is no excuse.”

However, as I noted above, California courts —in fairness, they aren’t the only courts to do this — have found a better way to torment the people than the approach favored by Caligula. And, in fact, this move is why now the new translation for stare decisis might rightly be “the court will do whatever it wants; how dare you ask us why we do what we do!”

The new approach is this: The court has put the new case law right out there where everyone can see it, but they have created a “Rule of Court” that labels certain cases as “unpublished” and stated that no attorney or judge may cite an unpublished case as precedent. Some have gone farther than to argue no attorney may cite an unpublished case; some have suggested that any attorney who does should be held in contempt of court. (Milton J. Silverman, “The Unpublished Opinion in California” (1976) 51 California State Bar Journal 33, 33; see Hart v. Massanari (9th Cir. 2001) 266 F.3d 1155.)

But as Silverman notes,

[T]his practice poses a continuing hazard to certain essential features of democracy. For the written rule of law has proved a formidable weapon in the arsenal of democracy. Where unwritten law has flourished, tyranny has prevailed. (Silverman, supra, 51 Cal.St.B.J. at 33.)

I ran smack into this problem recently when a judge noted — and let me be clear that I will neither name the judge nor provide any other information about the case because a) I’m not looking for a fight, or any other trouble, and b) as I hope this article will show, I actually sympathize with the judge on this one — that he was “not” relying on two unpublished cases, one of which was directly on point, when he gave a tentative ruling.

The problem is that there were no published cases anyone could cite that stated the rule the unpublished cases stated. And one of those unpublished cases was exactly like the case being considered by the judge. And the unpublished case was from the appellate court in our district. All of which made it very tempting for the judge, who was tentatively indicating he was going to make a decision that matched the unpublished case perfectly, to rely upon the unpublished case as precedent.

Again, I want to be crystal clear about something: I am not writing this article to “pick a fight” with that judge. I happen to think the judge should be able to cite the unpublished case as precedent. That there is a Rule of Court saying we cannot do this is, in my opinion, wrong. That’s why I wrote this article.

I want to be clear that I’m not “calling out” this judge because I have recently learned that some judges do read my blog. At least when they are researching some topic on which I’ve written and Google coughs up one of my articles.

There is a problem with this (my viewpoint), though. The California rule about unpublished cases has been around a long time. Because of that, there are some significant problems that could develop if this rule were relaxed or changed.

See, there are a lot of unpublished opinions — such as the ones the judge is (not) relying on for his tentative ruling — which contradict published opinions. Published opinions are citable as precedent.

The reasons for this problem are myriad. Partly it’s because “the unpublished opinion is, by definition, supposed to be shorter and less polished than a formally published opinion.” (Joshua R. Mandell, “Trees That Fall in the Forest: The Precedential Effect of Unpublished Opinions” (2001) 34 Loyola of Los Angeles Law Review 1255, 1266.) Furthermore, “a system that allows selective publication of opinions allows courts to depart from prior decisions for no reason whatsoever.” (Johanna S. Schiavoni, “Who’s Afraid of Precedent?: The Debate Over the Precedential Value of Unpublished Opinions” (2002) 49 UCLA L. Rev. 1859, 1868.)

If judges had the legislative power to ‘depart from’ established legal principles [stare decisis], ‘the subject would be in the hands of arbitrary judges, whose decisions would be then regulated only by their own opinions….’ (Schiavoni, supra, 49 UCLA L. Rev. at 1869.)

And guess what? Or, should I say, “Surprise!” This actually happens.

[Ninth Circuit Court Judge] Kozinski points out that trying to parse an unpublished opinion to determine the thinking of judges is futile because most likely, the judges have had little if anything to do with the opinion. Holding the judiciary responsible for writing an opinion that is reasoned according to law just because three judges signed it is, to him, unreasonable. Startled by the candor, the Federal Judicial Center (hereinafter the FJC) issued a press release to disclose (belatedly) the judiciary’s delegation of most decision-making to non-judicial staff. (Kenneth J. Schmier and Michael K. Schmier, “Has Anyone Noticed the Judiciary’s Abandonment of Stare Decisis?” (2005) 7 J.L. & Soc. Challenges 233, 245, emphasis added.)

In other words, sometimes “judges dictate right results to be supported by clerk-drawn opinions…resulting in legal analysis that often falls short of its conclusions.” (Schmier and Schmier, supra, 7 J.L. & Soc. Challenges at 246.)

Finally, at least as far back as 1973, “[o]ne other source of concern” was noted:

Certification for non-publication has of late become a technique whereby the Supreme Court can get rid of what it apparently deems to be erroneous or otherwise improvident decisions of the Court of Appeal. (Gideon Kanner, “The Unpublished Appellate Opinion: Friend or Foe?” (1973) 48 Cal.St.B.J. 386, 391.)

When the original California rule creating “unpublished opinions” and making them uncitable was created, the rationale was that cases were ballooning out of control. At the rate they were going, not even a superhuman attorney could expect to keep current on the law; there were just too many new cases.

But here’s a dirty little secret: If “keeping current on the law” means “reading new opinions as they’re published,” I do not know of a single attorney or judge who keeps current on the law. That’s just not how we “do law” today — if it ever was.

Sure, we try to “keep up with” the most important cases. But the reality is that no judge, no attorney, has the time to read every new opinion that is published, even though from 2000 to 2008 more than 81 percent of federal appellate opinions were unpublished (with the Fourth Circuit Court of Appeal leading the charge at 92 percent) and, in 2002, 93 percent of California opinions were unpublished. (Aaron S. Bayer, “Unpublished appellate opinions are still commonplace” (August 24, 2009) The National Law Journal 14; The Third Branch, “Congress/Courts Study Use of Unpublished Opinions (2002) available at http://www.uscourts.gov/ttb/july02ttb/unpublished.html.)

When lawyers write briefs, or judges write opinions, we utilize search engines to help us find cases relevant to the issues. Lawyers, we hope, — we really, really hope — are a little more inclined than judges to do things this way, but what we do is plug terms into search engines that we hope are going to help us find cases that support our point of view. If we actually read the cases, we’re bound to find out “what the law is” even with this slanted approach.

(But here’s another nasty secret: One of my favorite things to see in a prosecution brief is a quote that starts with, ends with, or contains an ellipsis (“…”). Why? Because I know that means they left something out. And although this is a perfectly acceptable way to save a reader’s time by deleting irrelevant content, I learned a long time ago that prosecutors will use it to delete content that goes contrary to their position, because they expect that no one is going to go look for the source and discover the misleading nature of the quote. I can’t tell you how enjoyable it is in my Reply Brief to re-quote the section, adding in the material elided by the prosecution.)

Whatever justification may have existed in the days preceding contemporary database and search engine technology is long gone.

Requiring judges to provide principled reasons for their decisions separates the judicial function from the legislative. The fact that opinions are available for scrutiny by the public and by other members of the bar and the judiciary increases the accountability of the judges on a decisionmaking panel Additionally, by articulating their reasoning, judges inform the parties of the reasons for the result in the case. The practice increases the legitimacy of the entire judicial system in the eyes not only of the litigants, but also of the general public. In contrast, when cases are decided without oral argument or a published opinion (or without either, which commonly occurs) the “parties have little assurance that the judges have paid attention to their case.” A system of universal publication and citation would ensure that judges provide reasons for their decisions and thus reassure litigants that their cases are adequately adjudicated. (Schiavoni, supra, 49 UCLA L. Rev. at 1882.)

Equally importantly, it would encourage consistency in decisionmaking. It would put some teeth back into stare decisis. It would eliminate situations like the one that brought this issue to my attention in the first place: there would be no “unpublished” opinions around to contradict published opinions. Contradictory opinions would have to be explained with explicit statements that prior law had been overruled and no opportunity to whipshaw back and forth depending upon the judicially-desired result.

Then the next time someone tried to feed me a bit of case law I don’t like, at least I’d have some faith that it was properly made.

When I arrived, another case was in progress: an extradition hearing.  I’d never observed or been involved in an extradition hearing.  The person they were trying to extradite, through his lawyer, was making numerous objections to the evidence being admitted.  And, in particular, he was repeatedly objecting that the California Evidence Code — which he believed the court was ignoring — should apply in this extradition hearing.

That’s how it happened that I got myself into a little pickle.

Between witnesses, the court interrupted the extradition proceeding to call the case for which I was waiting and we took the requisite minute or two to polish that off.  As the next witness took the stand, having become engrossed in what was happening, I remained in the courtroom.

The objections made by the defense attorney were rightly sliding right off the judge’s back faster than the proverbial water off a duck’s back.  They were completely without substance or — as the court pointedly noted during one exchange — citation to legal authority.

Yet, somehow, I felt that the proposition — the claim that California’s Evidence Code had a place in that courtroom, for that hearing — was not entirely clear.  (In that regard, it turns out I am backed up by what California defense attorneys refer to as “the Bible”: California Criminal Law Procedure and Practice (Cont.Ed.Bar 2009) “Procedures at Identity Hearing” § 50.11, p. 1690.)

However, as the judge noted in responding to the defense attorney, it appears that the majority rule throughout the United States is that extradition hearings are “creatures of federal law” and thus, if that is true, California’s Evidence Code would not seem to apply.  But the reason I’ve inserted so many “wiggle words” there is that a couple of things unique to California are at odds with that idea.

Actually, it’s a little more complicated than that.  The “uniqueness” of the California situation impacts extradition hearings in California partly because of the way the federal laws relating to extradition have been written.  For starters, there is the Extradition Clause of the United States Constitution:

A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

The Extradition Clause clearly intends to prevent people from escaping prosecution and punishment for crimes by the simple expedient of fleeing to another state.  However, the Clause is not “self-executing” and does not specify procedures by which interstate extradition actually takes place.  (California v. Superior Court of California, San Bernardino County (1987) 482 U.S. 400, 406 [107 S.Ct. 2433, 96 L.Ed.2d 332].)

Congress attempted to fix this problem by passing the Extradition Act of 1793.  That Act, as it applies to interstate extradition, exists today in 18 U.S.C. § 3182.  Unfortunately, nothing in either 18 U.S.C. § 3182, or the Chapter in which it is found, says anything about the application of state procedural rules relating to the admission of evidence at extradition hearings.  Nor can I find anywhere any case law that explicitly decides the question.

An easy case can be made for the fact that the provisions of the Extradition Act “were intended to be dominant, and, so far as they operated, controlling and exclusive of state power.” (Innes v. Toobin (1916) 240 U.S. 127, 131 [36 S.Ct. 290, 60 L.Ed. 562].)  But the “so far as they operated” language creates a small problem here, because as I noted, nothing in the Extradition Act speaks to the question of the applicability of a state’s evidentary law to the extradition proceedings.  And as Innes v. Toobin goes on to note:

[W]hen the situation with which the statute dealt is contemplated, the reasonable assumption is that by the omission to extend the statute to the full limits of constitutional power it must have been intended to leave the subjects unprovided for not beyond the pale of all law, but subject to the power which then controlled them,—state authority until it was deemed essential by further legislation to govern them exclusively by national authority.  (Innes v. Toobin, supra, 240 U.S. at 134-135.)

Since there appears to be no federal law that addresses this question, it would appear that it is left to the states — in this case the state of California — to decide the question.  And while California has not specifically addressed the question of applying its Evidence Code to extradition proceedings, the California Evidence Code does state:

Except as otherwise provided by statute, this code applies in every action before the Supreme Court or a court of appeal or superior court, including proceedings in such actions conducted by a referee, court commissioner, or similar officer, but does not apply in grand jury proceedings.  (Evid. Code § 300.)

Since there is no statute other than this one that addresses whether “this code applies” to extradition hearings, the Evidence Code must apply to extradition proceedings.

There is a colorable, but insufficient, argument to the contrary.

Another California case notes that “state laws cannot place limitations upon the extradition which is required by federal law….”  (Application of Morgan (1966) 244 Cal.App.2d 903, 910 [53 Cal.Rptr. 642].)  But requiring that California’s Evidence Code applies to extradition hearings does not, in and of itself, place a limitation upon extradition.  The person whom a “demanding state” wishes to have extradited is entitled to defend against extradition.  (This is a major point of an extradition hearing, after all.)  Some rules of evidence — even if made up by the judge on the fly — are going to apply in an extradition hearing.

But it turns out there’s more to it than that.  At least in the case I was observing.

The Extradition Clause of the Constitution indicates that a person will be turned over “on demand of the executive Authority of the State from which he fled….”  California has a statute that allows a person to be arrested by officers in California before a demand has been made.  (California Penal Code § 1551.1)  Then, of course, there are procedures for how a demand gets made.  And, of course, it takes a little time for the demand to be made after someone in California notifies someone in the “demanding state” that the alleged fugitive is here and in custody.

Meanwhile, another California statute, as well as state and federal case law relating to extraditions, allows the alleged fugitive to contest the extradition by saying, “I’m not the guy (or gal) they’re looking for!”  (Cal. Pen. Code § 1551.2; California v. Superior Court of California, San Bernardino County, supra, 482 U.S. at 408; People v. Superior Court (Ruiz) (1986) 187 Cal.App.3d 686, 692 [234 Cal.Rptr. 214].)  But if no demand has been made “by the executive Authority of the State from which he fled” (i.e., the Governor), even if there were federal law as to whether or not California’s Evidence Code applied to extradition hearings under the Extradition Act of 1793, that federal law would not apply in a case brought under the California Penal Code section 1551.1.

At the beginning of this article, I said I got myself into a little pickle.  I told you that after the case I was there to handle was done, I remained in the courtroom.  Since I got interested in the question, I tugged out my iPhone and began researching the legal question on Westlaw, while I observed the proceedings.  While I was still doing this, the proceedings ended.  The court, noticing I was still present, asked if I had some other case pending.  I said, “No, I stayed to watch because this was interesting.”  The judge agreed with me that the case was a very interesting one.  I mentioned that I had gotten caught up in researching the issue while I was listening.  And the judge essentially invited me to submit an amicus brief, which I said I would do.

Now part of the reason I was interested in submitting an amicus brief was because I believed that the law was going to show that California’s Evidence Code does not apply to extradition proceedings.  I even told the prosecutor that this seemed to be the case.  And I had a discussion with the defense attorney, who is a friend, because he actually was encouraging me to submit a brief.  I said, “What if it goes against you?’  I didn’t think he’d want to have to argue against the prosecutor, the judge and me! My friend said, “If the law goes against me, it goes against me.  You’re a good researcher and writer.  I trust you to find out what the law says.”

So I was happy.  I thought this would allow me to not only do something useful for the court, but — since I already believed the law was on the side of the prosecution — that it would also allow me an opportunity to show that I’m not just some biased, pig-headed defense attorney who always opposes the prosecutor; I thought I’d have an opportunity to build some credibility with people who don’t think like defense attorneys and who seem to automagically assume that we defense attorneys are incapable of seeing the truth of the law when it goes against us.

So for two days — two solid, long, arduous, miserable days — I slugged away at trying to prove that California’s Evidence Code does not apply to extradition proceedings.

That’s right.  I spent — I wasted — two days trying to prove that California’s Evidence Code does not apply to extradition hearings.  Two days that I really needed to write other briefs that are, in the long run, (at least to me and my clients) more important.

But I couldn’t do it.  The law seems to clearly show that California’s Evidence Code does apply to extradition hearings held in California courts of law.  And because I believe in the rule of law, the brief I submit is going to say that.  The prosecutor may not like it.  The judge may roll his eyes and say, “Well, he is, after all, a defense attorney.”  Unless they read this article, neither of them is going to understand how hard I worked to try to prove the opposite position.

The best I could do here is to say that if there were an actual demand and the prosecutor had a Governor’s warrant, there is a colorable argument that the court should follow what is the majority rule throughout the United States.  Even that argument is weak, for reasons given above.

However, since this case falls under California’s special rule that allows an arrest before a demand has been made by the executive Authority of the state from which the alleged fugitive has fled, it’s clear that this is a case where the majority rules…not.

If worms carried shotguns, robins wouldn’t eat them.

Not infrequently, as a child engaged in excessive contingency planning, I found this response nothing short of irritating.  As a rational adult attorney, I have found myself quoting this maxim with some regularity.

A bold headline on page B1 of the Fresno Bee today states that a 10-year-old boy is being held in the shooting death of his father.  As a criminal defense attorney increasingly practicing juvenile defense in the Fresno, Madera, Kings and Tulare counties of central California, the story naturally caught my attention.

The story itself is — I’m quite sad to say — mundane, bordering even on the banal.  American culture these days virtually requires that children, from at least the frequently stressed and overworked middle-class on down, raise themselves with little to no parental guidance.  Our young are no longer inculcated with whatever values naturally-individualistic Americans might have that would encourage respect for others, even parents.  The sort of internal controls necessary for society building are increasingly absent.

Not surprisingly, it has become normal for children — who lack the maturity to make rational decisions when it comes to restrictions on their behaviors anyway — to shoot people, including their parents, who get in the way of their perceived unbridled right to do as they want, when they want, how they want.  Hell, it’s become normal for adult Americans to behave this way.  Just last week, another driver, irritated because he had to speed up to merge in front of me (in other words, irritated because I followed the traffic laws of the State of California and expected him to either speed up or slow down as necessary to safely merge), expressed his irritation by throwing what appeared to be a large beer bottle at me on the freeway.

But I digress.

Another story in today’s Fresno Bee discusses a case that is currently riling the “we’re too soft on crime” crowd.  Forget that California’s prisons are grossly overcrowded, requiring federal judges to order the release large numbers of prisoners to leave enough breathing room for those who remain.  Forget that our laws are already among the most draconian in the nation and that therefore California leads the pack — competing even with other countries for the lead — in locking up its citizens.  Forget that most of the laws do not and cannot actually achieve their desired goal.  Forget that all this is the primary reason California is going broke and unable to fund important social programs (like schools).  A “parolee” and registered sex offender is in the news accused of kidnapping an 11-year-old girl and holding her hostage for 18 years.

This is a hard case.  Unsurprisingly, it appears set to help create bad law — or at least prevent the passage of good law.  Comes the cry from Repugnicans, this case is proof that our laws are too lenient.  We need tougher laws than those already bankrupting California.  We should not be letting prisoners out early.  We need to lock people up longer.  Hell, if you commit a crime — Repugnicans don’t seem to care how trivial — you should never get out of prison.  Ever. As in “E-V-E-R” for the rest of your natural life.  The Taliban got nothin’ on California Repugnicans.

If we let someone out early, and that man commits a crime, the Assembly members are worried that will come back to haunt them like the old famous Willie Horton ads.  (Quote from “a prominent state politician” in Carol Pogash and Solomon Moore, “Prisoners may be affected” (August 31, 2009) The Fresno Bee, p. A8, col. 1.)

Yet anecdotal evidence that some few criminals may commit such heinous crimes derails the debate on the humane treatment of prisoners in California through the early release of low-risk offenders.  As Scott Kernan, a deputy secretary for the California Department of Corrections and Rehabilitation notes,

a man who had committed crimes like those that sent [Phillip] Garrido to prison initially would never have been released early from prison under the proposed law.

“The bill doesn’t reduce supervision on sex offenders,” Kernan said.  “It would affect nonviolent, low-risk, nonsex offenders.”  (Pogash and Moore, supra.)

But Californians, and Americans generally, are increasingly incapable of the level of sophisticated thinking — the level required to function effectively in life beyond the third grade — to process this information.  The Repugnicans considering laws that would safely reduce the inmate population in California are too much like the woman living next door to the 10-year-old, mentioned above, who shot his father:

Next-door neighbor Elaine Sanchez said they were “just regular neighbors that we used to say hi and bye to.”

Sanchez said her daughter played with the 6-year-old girl.

“We live just a few feet from them.  My little daughter likes to go out and ride her bike and now I keep thinking, ‘What if she had been hit, too?’”  (“10-year-old boy held in shooting death of his father” (August 31, 2009) The Fresno Bee, p. B1, cols 4-5.)

What if worms did carry shotguns?

One of the things that really stood out, though, was this statement:

I do agree that a lot of people convicted are in fact guilty, and even if not for that particular crime than [sic] they probably did something before that and somehow got away with it.

Now, this individual did not state that this justifies punishment, but most people making this kind of statement do mean to say that.  They usually actually follow up by explicitly saying something to indicate they’re unconcerned with the conviction of the “innocent” individual because they aren’t really so innocent after all, are they?

But why does this way of thinking not make us one of the bad guys when we shrug our shoulders over a wrongful conviction, or give less consideration to the concept of reasonable doubt, and our part in seeing the justice wins in court?  Perhaps this is why some guy allegedly once said,

If any one of you is without sin, let him be the first to throw a stone at her.  (John 8:7, New International Version.)

Sure doesn’t sound like, “Well, she may not have done what she’s accused of, but you fine people should go ahead and punish her anyway because she probably has done something wrong, sometime.”  In fact, on the contrary: he all but says “You fine people should not punish her, because you have probably done something wrong, sometime.”

As Matthew’s Commentary on the above biblical passage states,

Those are self-condemned who judge others, and yet do the same thing. All who are any way called to blame the faults of others, are especially concerned to look to themselves, and keep themselves pure. In this matter Christ attended to the great work about which he came into the world, that was, to bring sinners to repentance; not to destroy, but to save. He aimed to bring, not only the accused to repentance, by showing her his mercy, but the prosecutors also, by showing them their sins; they thought to insnare him, he sought to convince and convert them. He declined to meddle with the magistrate’s office. Many crimes merit far more severe punishment than they meet with; but we should not leave our own work, to take that upon ourselves to which we are not called.

When we are called into the courtroom — when we get our summons to jury duty — we are not asked to determine whether someone deserves to be punished because “they might not have done this, but they probably did something, sometime.”  We should not take that upon ourselves to which we are not called.  And what we are called for is to determine whether the individual charged with a particular crime, at a particular time, actually committed that crime, at that time.  That is our work.

You might believe in some kind of “universalized” justice.  Call it “karma” or whatever else you like.  But consider this: if you convict someone for a crime they did not commit, are you not doing something wrong?  So if you are untroubled by your wrongdoing, do you not deserve, also, to be punished?

No matter that you think it’s okay not to carefully consider the evidence and whether or not it “beyond a reasonable doubt” supports a conviction, two wrongs really do not make a right.  It just adds to the number of wrongs in the universe.

The crux of the reason for my long-term banishment was that I mentioned the impact the supposed adult — I’ll call him “Jack Merridew” — was having on my ability to perform some of my work and that I suggested continued interference by Merridew might provoke a legal complaint.  And that threw everyone into a tizzy.  I had unknowingly committed the ultimate sin: I “confused RL with IRC”; that is, I ignored the unspoken (and idiotic) belief that “real life” and “Internet Relay Chat” are two separate things.

Today, we know better.  Or do we?

I was reminded of this incident by a discussion on Twitter. An attorney there asked for ideas concerning the proposed invasion of privacy of various members of a digital support group for abused women.  Apparently, he is representing someone who wishes to maintain their right to privacy.  (As a side note, this is one of the main things I like about Twitter: the ability to pose quick questions to others in my field who may be able to provide insights I’ve not come up with myself.)

There was a brief mention of Electronic Data Discovery laws.  But in thinking about the reasons why people who were not involved in the litigation might have a right to have their information protected, the first thought that came to my mind was “why not use arguments from what Jack Merridew used to disdainfully refer to as ‘RL’?”

Although many like to think of the Internet as some entirely new frontier, “in reality” it isn’t.  And even if it were, human beings didn’t try to completely reinvent new systems of law from scratch whenever they encountered some “new frontier.”  If they did, the United States legal system would not look as it does today.  We would be missing our rich history in English common law that continues to be felt almost two-and-a-half centuries after the signing of the Declaration of Independence!

Lord Coke is alleged to have said,

He who knoweth the law, and knoweth not the reason thereof, soon forgetteth his superfluous learning. (William Everett Britton and Ralph Stanley Bauer, Cases on Business Law, p. 629 (1922).)

And the renowned Justice Oliver Wendell Holmes, Jr., in his 1897 law review article titled “The Path of Law,” stated that to be a good lawyer you needed, among other things, to:

[F]inally, so far as you can…consider the ends which the several rules seek to accomplish, the reasons why those ends are desired, what is given up to gain them, and whether they are worth the price.  (Oliver Wendell Holmes, Jr., “The Path of the Law” 10 Harvard Law Review 457 (1897). [I cannot give the specific page reference because the copy I found does not include the original pagination.])

Holmes followed this statement with the observation that we (presumably lawyers) don’t work enough with the theoretical underpinnings of law.  And — not that I’m any Oliver Wendell Holmes, Jr. — I have to say that I tend to agree.

Holmes’s point, by the way, did not mean that we ignore other areas, such as historical development.  He did not aim for some kind of pure theoretical study like those of Dworkin or Hart. What he meant was that to really be able to do our jobs as lawyers, we needed to have some understanding of public policy: the aim of the laws that made up our particular practices.  (For this reason, he argued that the study of Roman law, which had been recommended to him when he was younger, was simply a mistake.  Studying Roman law was a waste of time for someone practicing within the American jurisprudential system.)

With respect to the inspiration for this article — the specific questions asked on Twitter — I proposed analogizing from whatever situation might arise in a face-to-face, non-Internet-mediated support group.  A suggestion was made that in that situation, the exchanges are oral and subject to difficulties in reproduction.  In the Internet-mediated group, “it [is] written and preserved.”  The belief was expressed that “It is harder to fight a written document.”  And so the search is on for a rule that would allow the quashing of a subpoena for this written record (presumably a conversation preserved by private bulletin board software).

Holmes would see this as a mistake; a failure of jurisprudential theory.

There is a story of a Vermont justice of the peace before whom a suit was brought by one farmer against another for breaking a churn. The justice took time to consider, and then said that he has looked through the statutes and could find nothing about churns, and gave judgment for the defendant. (Holmes, supra.)

Presumably, if something other than a churn had been broken, judgment could have gone to the plaintiff.

There is a public policy behind the refusal of courts to allow fishing expeditions into the happenings within therapeutic groups.  In California, at least, “psychiatric material is generally undiscoverable prior to trial.”  (People v. Gurule, 28 Cal.4th 557, 593 [123 Cal.Rptr.2d 345; 51 P.3d 224] (2002).)  (At trial, different principles apply. (People v. Hammon, 15 Cal.4th 1117, 1128 [65 Cal.Rptr.2d 1; 938 P.2d 986], citing Davis v. Alaska, 415 U.S. 308 [94 S.Ct. 1105; 39 L.Ed.2d 347].))

In the interest of keeping this article from running to book-length, suffice it to say that there remains an argument over whether or not the discussions on an Internet-mediated support group constitute “psychiatric material.”  Here, too, however, if I were the attorney, I would argue from a Holmesian point of view:  Why is psychiatric material generally undiscoverable prior to trial?  How should that principle be applied to the Internet-mediated support group setting?

A healthy understanding of, and reliance upon, the theory behind the law, rather than churning through a large number of databases looking for a case specific to such settings, where none may exist, goes a long way towards accomplishing the aims of the system.