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.

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.

And no, it’s not that the police are prejudiced and immediately suspect, stop and harass African-American males for being in the wrong place, any time.

The story, of course, is about a respected Harvard professor named Henry Louis Gates, Jr.  By now, many of you may already know that upon returning from a trip, Professor Gates and a friend, who made the mistake of being of the same race as Professor Gates, had some difficulty getting into the Professor’s house.  A witness to the event, concerned about the possibility that something was amiss, called 911.

This poor woman has apparently been pilloried for the call.  But as she did not recognize the people involved, I see no reason to take her to task for looking out for the neighbors by making the call.

“Why?,” you ask.  “Why should she call just because black people were forcing a door open to get into the house?”  After all, she’s just a racist for thinking that two black men being on the porch, forcing open the door, were breaking and entering.  The neighbor was concerned about the fact that someone was possibly breaking into a house.  Would that we all had neighbors who watched out for our homes.

“But she’s a RACIST!,” the bloggers scribble.  Or type.  I mean, I was going to say “scream,” but that doesn’t work much better than “scribble” when talking about blogs.

That proposition is possible, though somewhat doubtful.  During the 911 call, according to the Chronicle story, the neighbor, Lucia Whalen, only mentioned race when pressed by the dispatcher to describe the men.  And then she described one as possibly looking Hispanic, but stated she did not see the other well enough to describe him at all.

But it’s not the alleged racism (of either the 911 caller or the officer) that I find interesting in this story.  Here’s what makes this interesting enough to get onto my blog; here’s the thing that happens every day which does not get more than a mention in the story:

The officer who arrested Gates, Sgt. James Crowley, said in his police report that he talked to Whalen soon after he arrived at Gates’ home.  “She went on to tell me that she observed what appeared to be two black males with backpacks on the porch,” Crowley wrote in his report.  (Russell Contreras, “Gates 911 tape raises more issues in case” (July 28, 2009) San Francisco Chronicle, A8, col. 3-4, above fold (online version here).)

Only she didn’t.

Whalen’s attorney, Wendy Murphy, said her client never mentioned the men’s race to Crowley…. (Contreras, supra.)

If I had a couple thousand dollars for every time a client, or a witness in a client’s case, told me that they did not say what the police report said they said, I’d be a lot less worried about how I was ever going to retire.

Police officers routinely write police reports that contain statements suspects and witnesses deny having made.  And when I say “routinely,” I mean “in every case I’ve ever worked and in every case where police reports are involved that my colleagues have told me about.”  In fact, this happens with statements written by probation officers trying to jail someone, as well.

And no, folks, it’s not just because they’re guilty.  We might be able to accept that with respect to some of my clients.  It doesn’t work so well with witnesses.  Not infrequently, the misquoted witnesses have no connection to my client, other than that they were witnesses in the case that resulted in charges against my client.

Some of these police reports contain pretty unbelievable things, yet the officers swear by them.  In court. Under oath.  No matter what anyone else says.  Even when officers are reporting not what they saw themselves, but what someone else saw, it’s always the other witnesses — the real witnesses — who are liars.

If you stop and think about it, does it really make sense that so many people (the vast majority of my clients, if you believe the police) invite officers into their homes without warrants and allow them to search? If you had tons of illegal substances in your home — I know you’d never do that, but if you did — would you willingly consent to have the police search your house without a warrant?

Some of these clients, admittedly, have committed crimes.  After all, I’m a defense attorney.  And I’m not so unrealistic as to think that I make my living only by defending innocent people.  Yet it amazes me that these “guilty” people will pay thousands (or tens of thousands) to defend themselves after they supposedly invited the police into the house for a consensual search, even though they knew they had tons of incriminating evidence sitting in plain view.

How do you explain this?  I mean, okay, maybe some people might think the police won’t find their hidden stash.  But how do you explain a police report that says my client invited officers in for a search when a couple hundred pounds of marijuana are supposedly in plain sight?  Or there is a growing operation in the house (hard to hide even from the most cursory of searches).

And then, after having invited these officers in, the client suddenly decides to spend every penny they have on defending themselves against the charges?

Either the police report contains lies, or the officers planted evidence after the fact: that’s how you explain it.  The reason this doesn’t make sense is because it just doesn’t happen this way.  Like the officer who, two years after a crime, suddenly remembers the critical admission the client made — the one that seals the case against him, which the officer never wrote in his report — it’s made up.  The officer wrote what he wrote because it would help to either justify an act the officer should not have done, or to convince someone that the accused person is guilty.

This practice makes a mockery of our trials.  Witnesses testify differently than the officers’ reports?  And in a way that seems to help the defense?  No problem.  We’ll have the police officer testify about what the person supposedly said.  If it differs from what the witness says, well, this is only because the witness is a liar.  Want proof?  If what he or she says is even slightly helpful to the defense, the witness is lying and you, the juror, must accept the officer’s explanation for what the witness really saw.

You can bet your butt that if Henry Gates, Jr., were actually to be prosecuted after his arrest, the witness would have had to withstand the prosecution asking her why she “changed” her story between the time she told the officer “two black males with backpacks” were involved and the time she would be testifying that she did not tell the officer that.  When she was done, the prosecutor would put the officer on the stand and the focus of any questions to him would have been aimed at showing that the witness was— God only knows why — lying now.

But police officers are human beings.  It shouldn’t be hard to understand that sometimes they lie.  This usually happens because it does not matter to the officer if what he or she writes is true because the ends justify the means.  The officer has taken another bad person off the streets and it doesn’t matter to him, or to a lot of other people, how it’s done.  The officers know that many jurors will agree with them.  At the very least, those that don’t will trust the officers to be honest and testify truthfully.  So the officers are fairly sure they can get away with testiLying.

The problem with this is that when the government’s agents begin breaking the laws in order to catch lawbreakers, the law no longer has any meaning.  Rather than the rule of law, it becomes the rule of man.  The strongest, the biggest force, the one in power decides what’s true and what will be done about it; not the law.

Let’s face it, people — and potential jurors — many, if not most, of our laws are only the law because we say they are.  There’s nothing inherently wrong with growing, buying, owning, or using marijuana.  There’s no real reason that a fist fight between two kids at school needs to be charged as a felony, as opposed to being handled by the principal at the school.  (At the very least, it could be charged as a misdemeanor.)  It’s not a law of nature we’re dealing with most of the time, but a prescription of society.  We call these laws because they are meant to apply equally to all citizens, whether they wear uniforms, or not.

If anything does count as a natural law, it would be the law that says the ends do not justify the means; the law that says lying, or otherwise breaking our laws, is wrong even if it’s done to catch the bad guys.

Yet the society that prescribes our non-natural laws against drugs, speeding, and a whole host of other crimes, also prescribes that government must follow certain procedures in ferreting out lawbreakers.  These procedures have evolved over hundreds of years of experience those who went before us had with out-of-control government and officers who don’t know the proper limits of their powers.

We need to stop giving lawbreakers a pass just because they’re wearing uniforms.  However well-intentioned they may be, the road to hell, right up to the very gates, is paved with good intentions.

Either all our laws matter, or none of them do.