Project For My Readers

All three of them.

There’s a guy named Piketty who has been making a splash in economics circles with a new book, “Capital in the 21st Century“, which I admit to not having read although I plan to.  It’s probably not as interesting as it might otherwise be because, as I understand it, it’s essentially the kind of redistributionist screed you’d expect from socialists or communists.  But I digress.

In any case, it’s not like socialists and communists are always wrong about everything.  This (h/t Paul Campos at Lawyers, Guns and Money) appears to be a chart from Piketty’s book simply reflecting hard data:

qyisEsJ.png

So here’s the challenge for my readers.  In the comments, in a paragraph or two, identify and explain the common thread between what that chart shows and the previous two posts.

The best answer will receive the enviable prize of fulsome praise from the proprietor of Lawyers on Strike.

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Jury Verdict Deference And Double Standards

It – that is, deference to jury verdicts by judges – varies.  Unfortunately, it varies primarily depending on whose ox is being gored.  I’m not sure whether to be pleased or alarmed that the SCOTUS might be taking up the issue of which litigants get how much deference when they win, with the possible outcome being the formal recognition of what has hitherto merely been an embarrassing reality for a system that prattles on about “equal justice”:  juries aren’t second guessed when they rule against little people, only when they rule against the powerful.

The question in Stevenson v. First American Title Corp. ,specifically, is whether “due process” requires no deference whatsoever to a jury’s punitive damage award, or the usual amount of deference – that being so long as a jury verdict does not slip the bounds of rationality it will stand.

Needless to say, for those who have been paying attention, the latter kind of deference is actually in practice, as well as in theory, afforded to a jury’s “guilty” verdict in a criminal case.  In the former case, where a punitive damage award is almost always an award in favor of the lower status litigant against the higher one, well, in theory it’s the same deference given to criminal jury guilty verdicts.  In practice it’s more often no deference at all:  high punitive damage awards by juries are routinely overturned by trial judges and appellate courts.  Which is to say that in practice there is a gross double standard in favor of institutional litigants but we don’t come right out and say that because it’s embarrassing.

But it’s not like anyone is fooling us here at Lawyers on Strike.  We’ve been over this many times before.

The Stevens case then, should the SCOTUS take it up, will determine whether we have become so shameless that we will now explicitly endorse that double standard, or whether we’ll just continue to practice the double standard but continue to be ashamed of ourselves.  I think the petition for certiorari puts it rather well:

.
For decades, this Court has endorsed the use of the rational-factinder test (formalized in Jackson v. Virginia, 433 U.S. 307, 318-19 (1979) in a myriad of criminal and civil contexts in which the result reached in a case is attacked as insupportable on the record. The decision below is irreconcilable with this line of authority and with opinions in several of this Court’s punitive damages cases.  Because the rational-factfinder test supplies adequate due process for review of criminal jury verdicts which deprive a capital defendant of his or her life, it necessarily must be regarded as adequate for review of civil jury verdicts which deprive the defendant [that is, a big insurance company - ed.] of only money.

Of course, the Petitioner here is being naive.  Or perhaps not.  Putting the matter as starkly as that might just alert someone at the SCOTUS that they dare not grant more special privileges to the already absurdly over-privileged.  In any case, keep your fingers crossed.  There’s a lot of power money at stake.

See how important it is to follow developments in the Supreme Court?

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‘Positively’ Utilitarian Approach

Talk about ideas mattering.  Even philosophy.

I was a philosophy major at university.  People used to ask me what I was going to do with such a useless degree.  I’d say I would open a philosophy store.

“Life is a twinkie.  That’ll be $5 please.”

We were talking the other day about Judge Kopf, natural law and utilitarianism.  Well, not a whole lot about the latter, because there really isn’t much to say:  “Greatest good for the greatest number.  Natural law is nonsense on stiltsSolitary, nasty, brutish and shortEpistemology?  What’s that?  We done here?”

Judge Kopf’s rejection of natural law and passionate – that is, unthinking – embrace of utilitarianism dictates the way he decides things.  It’s utterly predictable.  And depressingly impoverished, intellectually and morally.  Every post he puts up, every comment he makes, only reinforces that.

Take Judge Kopf’s latest post regarding the association of criminal conduct in adult men and lead paint poisoning incurred as a child, more prevalent in older men since lead paint use has been curtailed in recent decades:

What should a judge do with this information?  In my opinion, there are two things a judge should strongly consider if Nevin’s conclusions are correct….First, particularly for drug and gun charges (that are often associated with violence), judges should be far more skeptical of the ability of older men (40 and above) exposed to lead as children to reform themselves in prison or conform their conduct to supervision when released…Second…judges may wish to treat older men exposed to lead as children as posing an increased risk to violate the conditions of supervise release and insist that the probation departments act aggressively when supervising such a person in order to protect the public from the offender…

In the entire post it does not occur to Judge Kopf that one other implication of the data is that the culpability of offenders would be less – or even eliminated – in the event their behavior was the result of circumstances over which they had no control.

As Scott Greenfield points out, Judge Kopf’s – how shall I put this – glaring oversight of this obvious alternate implication was cited in the very first comment to Judge Kopf’s post and is then given the same dismissive and even patronizing treatment I’m sure Judge Kopf regularly hands out in his courtroom – but only to the relatively powerless litigants.  It’s a question of ‘balance’, says Judge Kopf:

It is a large part of my job, as I see it, to protect the public from criminals who are likely to reoffend even if they are otherwise a sad lot. In this sense, “fairness” is trumped by “public safety concerns” because the defendant has first been proven to be legally culpable even given his or her deficiencies and therefore it is more important to protect the innocent public from the guilty defendant than it is to be “fair” to the defendant. Bluntly, my job is not to be a social worker. I don’t have the training, and I don’t have the resources to serve in that capacity. Fifth, I agree that I must seriously grapple with the facts and that to me means being very serious about assessing risks in a clear-eyed manner. The sentencing process is not and should not be a one-way ratchet that constantly looks for ways to excuse the conduct of a legally culpable defendant and lower his or her exposure to a prison sentence. Sentencing is a process of balancing the defendant’s interests with the public’s interest.

Where to begin?  The “public” is an abstraction, not a real thing.  The Defendant is a real thing – a human being – not an abstraction.  The judge is balancing the unreal against the real without knowing the difference, without even understanding that this is a problem.

Then, having begun with this fundamental confusion he aggravates it by, of course, giving more weight to the unreal consideration than to the real one.

And these are just the two of the biggest conceptual problems about Judge Kopf’s take on reality.  His take on his “job” is just as bad or perhaps worse.  It most emphatically is not “a large part of his job” to “protect the public”.  Protecting the public is an executive function, not a judge’s.  Because separation of powers.  It would be far closer to being correct if he said that protecting the public was no part of a judge’s job.

Not to mention that from a utilitarian perspective “the public” v. “guilty defendant” is not a contest, not a fair fight.  There’s really no ‘balancing’ to be done.

And why “guilty” defendant, not just defendant?  Because definition.  It’s a tautology – which is to say, meaningless – but this particular tautology, and only this one, seems to be very meaningful to Judge Kopf.

That a “positivist” thing.

As I’ve said, we’re all utilitarians and maybe even positivists, up to a point.  But elevating utilitarianism to a principle is an oxymoron.  Or at least it would be if Judge Kopf had a clue.  And the judge certainly sounds awfully moralistic for someone who claims not to have any opinions about morality:

Please realize that a low IQ and impulse control problems are deficiencies I see very often whether caused by lead or chance. By definition, I don’t sentence anyone unless they are blameworthy. Thus, while I appreciate your sentiment, and agree that we could do a much better job as a society extending a hand to the unfortunate, the stark reality is that the people we are talking about are criminals in every sense of that word.

To quote one of your other heroesthree generations of imbeciles are enough, right your honor?

Don’t worry, Judge Kopf.  Buck v. Bell is still good ‘law’, in the sense of that term you subscribe to.  And locking the defectives up for life only with others of their own sex makes forced sterilization pretty much a moot point, doesn’t it?

Same intellectual/philosophical destination, different route.  The problem is that the destination is moral depravity.  At that point, what meaning does the term “criminal” really have?

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Eight Years For Dawn Nguyen

I’m just going by news reports, of course.

Based on those my understanding was that the government was asking for 10 years consecutive, meaning that she would serve the 10 years after the state sentence was completed.  If she served the state maximum of 4 years that would translate into a total of 14 years.

Judge Larimer took 2 years off the government’s position and made the sentence concurrent, meaning that she’ll be serving her state and federal sentences at the same time, for a maximum of 8 years.

In the world of criminal sentencing, this is a considerably more lenient sentence than the government was asking for, and I have to give Judge Larimer credit for bringing a little, a tiny little bit, modicum, sliver of perspective in handing out his sentence.  It is still way too much for what she actually did, even assuming it’s all true.  Which I doubt.

It’s still very troubling that there isn’t one single living person in the chain of causation besides Dawn Nguyen that is suffering any consequences at all, even though there’s an abundance of candidates.  How is it that a 21 year old woman is singled out for 8 years but the parole board members who released Spengler don’t miss so much as a paycheck?

It’s so disproportionate.  Disproportionate based on the nature of the act being punished (signing a form), disproportionate given the nature of the defendant – a young and evidently productive citizen with no criminal history – and disproportionate given that there are many others with a very similar, if not greater, level of culpability who have not even been prosecuted, let alone imprisoned.

More fundamentally, turning someone like that into an arbitrarily selected scapegoat that the angry mob vents their anger onto is unspeakably cruel.  Not as cruel as what Spengler did, but I don’t see how adding to the cruelty helps anyone or anything.

Ugh.

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Natural Law

I’ve said that the problems of the justice system in the United States, both for civil and criminal cases, run very deep, and one of the main sources of trouble is a reflexive hostility to what is called ‘natural law‘.

Interesting discussion from the other day hosted by Judge Kopf at his blog, Hercules and the Umpire, about the death penalty.  Interesting not least because it wasn’t just about the death penalty, but also Judge Kopf’s rejection of natural law.

There is a line of reasoning by which the political concept of “pluralism” degenerates into rejecting natural law that is peculiarly American and is perfectly illustrated by Judge Kopf.  It’s largely derived from Thomas Hobbes’ political philosophy.  And indeed Judge Kopf mentions Hobbes specifically in his post describing his thinking about the death penalty.

The first thing to be said about this is that in the long history of what is often termed western thought Hobbes is barely a footnote, not to be taken seriously as a launchpad for anything that could be remotely described as a “school of thought”.  He was not, properly speaking, a philosopher.  Even a cursory comparison of his writings and ideas with those of Plato, or Aristotle, or DesCartes, or David Hume or Kant or Leibniz or Hegel or indeed dozens of others I and nearly any other somewhat educated person could rattle off (Edmund Husserl and phenomenology, anyone?) will demonstrate beyond any debate how relatively mundane Hobbes is, in a totally different – and clearly lesser – league.  Any semi-serious undergraduate student of western philosophy in his second year of study would regard Hobbes as little more than an amusement or distraction, intellectually speaking.

Put simply, it’s a profound intellectual error to base any kind of outlook on the world, or an analysis of any serious issue, on Hobbes.  He simply doesn’t have the depth, the intellectual gravitas.  It’s like basing your opinions about roadrunners on the cartoon.  And since Judge Kopf actually went to the trouble of including Hobbes’ portrait in his death penalty essay:

Roadrunner_looney_tunes

The only depth that follows in Judge Kopf’s analysis after making this mistake is the kind when you are further down the rabbit hole.  For the love of God, he starts bringing up Oliver Wendell Holmes as some kind of ‘theorist’.  Ugh:

The positive law theorists (like Hobbes and Holmes*) would say “yes, it is just”–so long the judge acts pursuant to the law. To them (and probably me) there is no justice without law. Legal positivists believe (a) Justice and injustice are dependent on positive law; (b) Law itself is independent of justice; (c) Justice consists in conformity to positive law; (d) Justice, apart from legality, is merely a subjective [individual] norm; (e) Justice is obligatory ultimately only because of legal and political sanctions; and (f) The virtue of justice is identical with obedience.

At least Holmes had the excuse of extremely traumatic experiences in the Civil War, but the point – well, one point – is that while Hobbes can barely make it onto the most expansive possible list of thinkers in the history of western thought one might give the slightest consideration to, Holmes doesn’t even make that list.  The only reason anyone outside of lawyers has ever even heard of him is that damn unforgettable name.  His most important ‘contribution’ as a judge was to place his imprimatur on Alger Hiss, who of course turned out to be a communist, a spy and a perjurer.  I often call Alger Hiss the most important but obscure American political figure of the 20th century.  And I don’t mean that in a good way.  But in any case I find his association with Holmes endlessly amusing.

I guess the bottom line here is that there’s a lot to be said about the death penalty but if somebody brings up Hobbes or Holmes you might as well absent yourself from the discussion and turn on the TV.

Not a suggestion I’d normally make.

Of course it’s not as if Judge Kopf doesn’t have a lot of company.  Contemporary judges might rightly be called liberal or conservative, but the vast majority bristle at the notion of natural law, and that includes Scalia.  But maybe not Justice Thomas:

In 1991, shortly before Supreme Court Justice Clarence Thomas’s Senate confirmation hearings, Harvard Law School professor Laurence H. Tribe wrote in The New York Times that Thomas was “the first Supreme Court nominee in 50 years to maintain that natural law should be readily consulted in constitutional interpretation.” Thomas was repeatedly grilled on this point during the hearings that followed. Though he acknowledged that the Constitution is “[t]he positive law,” he added, “We look at natural law beliefs of the Founders as a background to our Constitution.”

So there’s that, then.

Now, there are intellectually respectable reasons to question or maybe even reject natural law.  In my view they’re all wrong, but they might be intellectually respectable.  But rejecting natural law “because Hobbes” is like rejecting high school physics “because Curly“.  It may well be, as Judge Kopf says. that he’ll always come to an impasse with natural law adherents, but how you get to the impasse can be important.  Intellectually, I mean.

Does that make all this merely an intellectual exercise?  Not if the subject is the death penalty and you’re a judge.  Or for that matter a lawyer.

Besides, what’s wrong with an entirely intellectual exercise?  Oh, I forgot:  there’s a strong strain of anti-intellectualism in the American political arena, of which a devotion to Hobbes is a part.  Or maybe a product.

And the reflexive hostility to natural law is part of the peculiar American brand of anti-catholicism as well. Even if a lot of Catholics go along.

So maybe this makes clear how deep the divide really is between someone like Judge Kopf and someone like me.  We barely speak the same language, really.  And that’s one big reason why, for me……juries.  People – other than judges – naturally believe in and understand natural law.  Because it’s natural.

Duh.

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Good For Detroit

After the financial “industry” has gutted real, actual productive industries everywhere, but nowhere so much as the Motor City, Detroit is succeeding in putting the shoe on the other foot:

The loudest grumbling has come from some creditors which stand to lose big money if Rhodes approves the bankruptcy plan. Bond insurer Syncora Guarantee has said its claim is about $400 million and that Detroit has unfairly discriminated against financial creditors.

 

High stakes gambler Bond insurer”.  Please. 

I’m not under any illusions that the public employee pensioners – probably the biggest players in Detroit’s bankruptcy – are paragons of economic virtue, but as between them and bond insurers I have no quarrel with a brush cut for the former and shaved heads for the latter.

Of course after this there will be a flurry of legislative proposals to “reform” municipal bankruptcy law, sponsored by the usual suspects – JP Morgan Chase, Citigroup, etc.

But you take your comfort when whatever small measure of justice happens in this world.

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Wrong

A while back an old lawyer I know was quoting an even older lawyer, to the fanciful effect that obtaining a criminal conviction is a well-nigh impossible task, what with the insuperable burden of proof – beyond a reasonable doubt – and the requirement of convincing 12 people unanimously.  The prosecution, it was concluded, should never win a case.

A sentiment contrary to observable fact, when one considers that prosecutors almost always win convictions.

Is this a problem?  Why, yes indeed it is.  There’s a fairly simple, though not entirely verifiable, statistical reality at the bottom of the criminal justice system in the United States:  the input – that is, what the relevant ‘law enforcement’ agency sends in for ‘processing’ – is correct or substantially correct about 75-80% of the time.  The whole purpose of the processing – that is, all the prosecutors, lawyers, judges, jurors, trials, appeals, post conviction collateral proceedings and so on – is to catch that other 20-25%.  All of it.

The system does a terrible job of this.  Absolutely terrible.  Abysmal.  And as a result, and other than war, this is the most immediately frightening and destructive thing the government does:  prosecuting people for crimes.

Why?  What’s wrong?

Let’s get back to that Department of Justice Grand Jury Manual thing.  You know, the guide book for federal prosecutors presenting cases to Grand Juries, not to obtain convictions but to obtain indictments, which in general must precede a conviction, which in turn are readily obtained by prosecutors, nationwide.  We talked about this before.

In 1983 the manual dealt in a rather cursory way with the “due process” problem of prosecutor misconduct in knowingly presenting perjured testimony to a Grand Jury.  It was a cursory treatment because the mostly unambiguous instruction was that indictments obtained with such testimony would be dismissed, citing the 1974 case of United States v. Basurto, 497 F.2d 781 (9th Cir., 1974):

Importance:  In Basurto, prosecutor did not become aware of perjury until after indictment (but before trial); indictment was still dismissed.

 

By 1991, though, the DOJ Grand Jury Manual said this:

A very few courts have dismissed indictments on due process grounds because of the knowing use of perjured testimony.  However, the weight of authority in this area is that dismissal, if justified at all, is only justified in flagrant cases.

 

What happened between 1983 and 1991?  Well, one thing that happened is that we elected Reagan POTUS and got Ed Meese as Attorney General.  Then we got some very prosecutor-friendly Supreme Court Justices:  O’Connor, Scalia, Kennedy.

But there’s more to it than that.  After all, had the law changed?

No.  Prosecutors don’t get to deliberately use perjury to obtain a conviction.  I suppose you could respond that no one said they couldn’t deliberately use perjury to obtain an indictment, but what are they going to do with the indictment thus obtained?  If they can’t get a conviction with it, the only thing to do is dismiss it, right?

But let’s back up a bit further, to the “due process revolution” of the Warren SCOTUS.   By most accounts the revolution had run its course by 1969, but 45 years later it remains “controversial”.  Wikipedia says so.

Why the controversy?  “Conservatives” complained about “handcuffing the police” with all the procedural rigmarole.  Did they have a point?  Yeah, maybe.

A crumb, a morsel.

Nah.  On to larger issues.  Let me get too abstract for just a moment, because at the moment I can’t think of any entertaining or creative way to express the particular thought I am thinking.

We have procedures, but the procedures are not about themselves, obviously.  They are about the “substance”.  The substance-procedure distinction is one of those large ideas.  You would think it doesn’t come up very much, but you’d be wrong.  Thus one of the most contentious areas of the law is “substantive due process” which you may notice, based on what I just wrote, is something of a contradiction in terms (Justice Scalia specifically called it an “oxymoron”) because substance can’t be procedure and vice versa, but “substantive” = substance and “process” = procedures, so substantive due process ought to prompt nothing but eye rolls, but it doesn’t.  And it shouldn’t.

Why do I say that?

The show trial courts of Stalin’s Russia followed their procedures pretty well, by many accounts.  But there was no “there”, there.  No substance.

I guess one way of putting it is that the purpose of procedures is to make the substance intelligible and orderly, but if the substance can’t be made intelligible in the first place because, say, it’s all phony made up crap then crossing all the procedural ‘t’s and dotting all the procedural ‘i’s doesn’t matter.

Or, put another way, the procedures serve the substance and are subordinate to it.  You can have substance without the procedure, but you can’t have a meaningful procedure without the substance.

So what is the real and more thoughtful objection to the Warren Court “due process revolution” – more thoughtful, that is, than saying it “handcuffed” the police?  Just this:  that it inverted the natural, rational hierarchy and made procedure superior to substance.  As I’ve said before, I’m not the only one who has pointed this out.

I recently came to Justice Scalia’s defense – not really, but it might have seemed that way – in a comment over on Turley’s blog, when another commenter was excoriating the apparent Scalia position that the execution of a factually innocent person who had received all the procedures the Constitution provided was okay with him.  But I summed it up this way:

  1. People are justified in being appalled at the idea because ultimately Scalia is wrong, and wrong in a serious matter. But it’s also a symptom of the larger problem that the justice system has been too good at abdicating its essential functions, one of the most prominent of which is to ensure the innocent are not punished. The reason a meritorious innocence claim winds up in federal court on habeas corpus in the first place is that the state courts have failed in this essential function. The idea that the federal court should just punt it back to the state that has already failed is fatuous. Somebody has to be responsible in the end, and in the end on a matter like this the federal system must act as the failsafe. That’s my opinion, probably not Scalia’s, although he wasn’t directly confronting the question there. As far as it goes, he was merely stating a fact: the SCOTUS has never ruled that the constitution forbids the execution of a ‘legally” guilty, but factually innocent person.

Everybody makes mistakes.  But it’s a special type of mistake when we refuse to recognize it as being mistaken, even when it’s obvious.

I’m bringing all this up because there was a post the other day on SJ to the (also fanciful) effect that what ails the justice system is shitty defense lawyering.  And so presumably this can be fixed by good defense lawyering, which means SHG and his friends and his spawn, if any such there be.

There may be some shitty defense lawyering out there.  That was hardly the point of the article SHG cited – which had more to do with funding indigent defense, not lamenting its poor quality – but it’s SHG’s point all the time.  Too often, really:

That’s where Jeff picks up the story, and why Jeff rightfully puts the blame on the last person standing between the government and the defendant.  Even if every other player in the system fails, the burden remains on the defense lawyer to make up for it.  Sucks, I know, and a very heavy responsibility.  It’s too much for most lawyers, which is why most lawyers have no business standing in the well of a criminal court.

 

“Jeff” didn’t single out defense lawyers for “blame”.  That’s a distortion, and overall SHG’s take on the whole thing seems a bad case of confirmation bias.

But forget the article.  The SJ post is just another variation on a very tired theme:  SHG, or lawyers like him, are the solution to what ails the system.  This is wildly implausible:  the change in the DOJ Grand Jury Manual from the 1983 version to the 1991 version; the explosion of criminal prosecutions and the US prison population; the near certainty of conviction at trial with conviction rates exceeding 95%; the vanishing trial and ‘trial tax'; the futility of appeals and post conviction remedies; the Anti-Terrorism and Effective Death Penalty Act of 1996.

SHG probably started out practicing law right around 1983.  Does he, and more specifically his professional self-concept, bear any responsibility for these deleterious systemic developments, all of which occurred on his watch?  If he doesn’t bear at least some small share, who would?

Beyond that, is performing the same act over and over going to yield a different result?

Innocence does not matter.

Our job is only to defend.

We game the system to ‘win’, every single time.

There is no such thing as justice, or truth.

 

These are essentially a sales pitch (to potential clients), with a kernel of thoroughly impoverished pseudo-philosophy (“everything’s relative”) woven in.  So you posture this way and maybe it gets you a few clients and you do a good job for them – although most of the time that doesn’t make much difference – but the result to the system as a whole is – well, what I just told you.

Has it been worth it?  You have the occasional acquitted client, I’m sure.  How many others have been convicted who otherwise would not have been, though?  The statistics over the last 30 or so years suggest the numbers may be substantial, but ultimately that’s one of those questions we’ll never be able to really answer, but nevertheless deserves a little thought.  Maybe more than a little.

The elevation of procedure over substance leads directly to institutional and systemic incoherence.  Like war and pestilence, institutional incoherence can have short term benefits for some.  But if you’re one of those few, don’t expect admiration and respect from the much larger group of people on the receiving end.

Not that that’s the main point.  I don’t know.  Let’s see if I can drive the point home, starting with  a post from a few years ago on SJ:

True believers usually end up having problems as a criminal defense lawyer.  When people push the “factual innocence” button, they almost always miss the boat.  We don’t defend because our client’s are innocent.  We defend because they are accused.  Our job is to test the government, not to do justice…The prosecution side, including the police, exist to do justice, and justice means both substantive and procedural.  They are equally responsible for keeping innocent people out of jail as putting the guilty in.

 

That’s the familiar little ditty played over and over on SJ.  And elsewhere.  But SHG and the SJ posse are keeping some dubious company:

Investigators believe Witherspoon then raped the girl who was not conscious enough to stop the attack.  Witherspoon has hired well-known defense attorney John Parrinello to defend him.

Thursday, Parrinello revealed a potential line of defense in the case. He said prosecutors will have a hard time proving Witherspoon used Ambien to sedate the girl.

“None was found in her system,” said Parinello, “and if there were any sexual activity between the two, it was purely consensual.”

Livingston County District Attorney Tom Moran said, “Mr. Parrinello and I have totally different ethical responsibilities. Mine are to seek justice; his are to do everything humanly possible to get his client off.”

 

This is from a local Channel 13 news interview (scroll way down, about 7/8th of the way to the end, to see the actual story) dated September 30, 2004.

Notice how Moran – who’s a psychopath, by the way, but that’s another subject – is using the very same ideas – indeed the very same words – expressed by SHG to discredit another defense lawyer, and that lawyer’s case, and his client. 

Multiply 10 thousand fold, since of course Tom Moran and SHG are not the only adherents to the dogma.

It goes without saying – or should – that this whole outlook is a fairly recent affectation in the profession.  Consider this quote, dating from the 1940’s and obtained second-hand from a 1999 Fordham Law Review article:

 

The difference between the true lawyer and those men who consider the law merely a trade is that the latter seek to find ways to…violate the moral standards of society without overstepping the letter of the law, while the former look for principles.. within the limits of the spirit of the law in common moral standards.

 

Maybe that’s going too far in the other direction, but still:  we’re left with the disturbing question of how much the more recent affectation has contributed to the widepread collapse or at least demoralization of criminal defense lawyering, and the cascade of prosecution friendly developments that have characterized the criminal justice system since, oh, about 1980.

Again, probably about the same year Scott Greenfield began his legal career.

It’s a big and important question, methinks.

I won’t be posting for a while.  Busy.

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