Archive for September, 2011

Too Many Federal Crimes, Too Many without Mens Rea — Do We Have a Movement Yet?

Wednesday, September 28th, 2011

We’ve posted several times about how there are just too many federal crimes, many created by regulatory fiat or otherwise without meaningful oversight by elected officials. About how a great many of them are apparently drafted by people with no understanding of how criminal law works and why. About how, as a result, there are an insane number of federal crimes (all felonies, of course) that penalize without any mens rea requirement at all. The most innocent accident, the most harmless and unintentional error, can make any honest and decent citizen a felon. (Sample posts here and here.)

We’re not the first to talk about it, by any means. We won’t be the last. But it’s starting to look like we’re reaching a tipping point — a critical mass of public awareness that might actually lead to … dare we say it … change?

Back in July, we cited a recent study that showed that, when a perception is firmly held by fewer than 10% of a population, it doesn’t really catch on. But for some reason, once the magical number of 10% is reached, the opinion spreads like wildfire. From obscurity, the idea suddenly becomes a majority view.

This 10% number pops up no matter what relevant population you’re looking at, no matter what social network. All that it takes to change the world is to have 10% of them be firmly committed, stubborn, and outspoken.

Over the rest of this summer, we’ve seen more and more references to this overcriminalization.  They’ve come mainly from the libertarian right and the defense bar, as one might expect, but it’s also been catching on in the mainstream press, left-leaning internet fora, and other places indicating that the idea is starting to take root in the general consciousness.

The last several days have seen a marked uptick in the topic. The New York Times cited it three days ago as a reason why people are taking pleas rather than going to trial. The Wall Street Journal has been doing a series on it, culminating yesterday in a long article on pretty much everything mentioned in the first paragraph of this post. And various bloggers and redditors and the like have been talking it up more than usual.

It’s starting to look less and less like a passionate few shouting in futile obscurity, and more and more like a movement.

Excellent. Let’s keep it up, shall we?


(Aside — If we were a Republican presidential candidate, we’d jump on this in a heartbeat. Not only would we be getting out in front of the movement, the better to be mistaken for a leader, but it would be a great way to repackage part of the platform. The present platform calling for less regulation comes off as a kind of “help out corporations at the expense of the people and the environment” thing. But make it a call for less regulation in the name of social justice — with plenty of anecdotal examples of real individuals who have been fucked by the fourth branch — and it becomes a populist battle cry. Just sayin’.)

What Would Plato Do?

Tuesday, September 20th, 2011

Wanda: What would an intellectual do?  What would… Plato do?

Otto: Apol-

Wanda: Pardon me?

Otto: Apollgzz.

Wanda: What?

Otto: Apologize!

Well, no.  He probably wouldn’t.  Not Plato.

And certainly not in the case of Troy Davis, whose final clemency request was denied this morning, and who now faces execution tomorrow evening for the killing of a police officer in 1989.  He was convicted at trial 20 years ago, but since then the reliability of that verdict has been called into serious question.  Seven of the nine major witnesses recanted their testimony, many claiming that the police pressured them to give false eyewitness accounts.  No forensic evidence ever tied Davis to the crime, the murder weapon was never found.  In the intervening years, ten new people have come forward to point the finger at another individual known to have been present at the scene.

So it’s possible that Troy Davis might not have shot the officer.  It’s possible that he might have.  Twenty years of second-guessing and changing stories make it uncertain.  But what is certain is that he was convicted, and that the conviction stands.

Should we be troubled by this?

We started pondering this after our kids’ bedtime story the other night.  We were reading to the lads from the Dialogues of Plato [what, you got a problem with that? Shut up, these are not your children.], specifically the Crito.  That’s the one where Socrates has been condemned to death, and his friend Crito shows up to talk him into escaping.  Boiled down to its essence, the Crito runs something like this: (more…)

Making the Jury’s Job Easier – and Better

Sunday, September 11th, 2011

Anyone who has served on a jury or tried a case knows that the American jury system is pretty stupid.  Don’t get us wrong — it is absolutely without a doubt a sacred institution designed to ensure justice better than any other system we know of — but it’s still stupid.

Think about it — You take a dozen people who probably don’t practice criminal law.  You tell them they’re going to be deciding someone’s guilt or innocence, and then you shove a few weeks of testimony and exhibits in front of them.  But you don’t tell them what the law is — what they’ll be applying — until after all the evidence is over.  You don’t tell them what they should have been listening for, until it’s too late.  You don’t let them ask questions of witnesses to clarify points they didn’t get.  When everything’s over, and it’s finally time to tell them the law they’re going to apply, you simply read it to them for a few hours.  You don’t let them take notes.  You don’t give them a copy of the law you just read them.  They are presumed to have memorized and applied correctly the intricate flowchart of criminal elements for each crime, definitions of legal jargon, and all the other attendant instructions.  If they ask for clarification later, you simply read the instruction to them again.

And that’s not even half of it.  On top of all that, you make them do the judge’s job, in addition to their own.

The jury’s job is to make findings of fact.  The judge’s job is to make rulings of law.  The jury’s job is very important — their job is to decide on the official version of the facts.  The court cannot do anything until the facts are established, and then it can take the necessary action — whether it be punishing the guilty or freeing the not guilty.  But the determination of “guilty” or “not guilty” is a legal conclusion reached by analyzing the official version of the facts.  And in our system, we tell the jury to make that ruling of law.

In fact, those who were not in that jury room will only ever see the ultimate legal conclusion, and will only be able to speculate as to what the actual facts were on which that conclusion was based.  Based on studies of jurors (and anecdotal discussions after many trials), it appears that a large number of verdicts are based on flawed application of the law to the facts — or even without any such application whatsoever.  People are found guilty of crimes where jurors did not think essential elements had been proven beyond a reasonable doubt.  People are found not guilty of crimes where the jurors were actually persuaded of the necessary elements.  Jurors hang, or screw up, because they don’t understand what they’re doing.

The system is stupid, and almost guarantees injustice.

Fortunately, the problems are easy to fix.


One simple fix, which resolves quite a few of these inanities, would involve little more than (more…)

Modern Law Ain’t Modern Art

Tuesday, September 6th, 2011

Technology freed art to transcend itself.  After photography took on the job of realistic imagery, art was free to explore new forms of expression.  New ways of visualizing things.  New things to visualize.  Using technique or color or shape to fire the viewer’s neurons in new and unexpected ways.  Art evolved, for a time, to a place where art itself was no longer the point.  The greatest artist could be one who created no art, but only his persona.  As James Salter put it, “an artist freed from the demands of craft, an artist of concepts, generosity; his work is the creation of the legend of himself.  So long as he is provided with even a single follower he can believe in the sanctity of his design.”

A fair number of lawyers seem to think the same way about the law — that the technology of the internet has allowed us to transcend experience and craft, and create a superior facsimile online.  Success comes not from hard work done well, but from connecting with people online.  Reputation comes not from the results earned for one’s clients, but from the number of Twitter followers one has.  Praise yourself online often enough, and get enough other similar artistes to praise you, and you too can be great.

Just so you know, it doesn’t work that way.  Other lawyers aren’t going to refer their next big codefendant to you based on your Klout score, but on whether you’ve got the real-life skills and experience to do the job well.  Clients who retained you based on your self-puffery aren’t going to recommend you to others once they find out (and they will) that you were out of your league.  Lawyer referrals and client references are the two biggest sources of new business you’ll ever have.  If you’re investing all your time on building a killer online presence and maximizing your social media, you might want to reconsider.  A better investment of your time would be (more…)