Reaction to Mugging

Comment Cavalcade (1)

When I get a chance to today and Sunday, I'm going to highlight and answer some of the more interesting comments both from here and abroad that I haven't had the chance to answer yet:

You need a new dictionary. Malum in se is Latin for "evil in itself", not "wrong in itself" HUGE difference.

I was pretty sure malus means "bad", but it's been 25 years since I studied Latin so I looked it up:

malus (1) -a -um: comp. peior -us; superl. pessimus -a -um [bad , evil (physically or morally); unfavorable, unsuccessful, ugly]. N. as subst. malum -i, [an evil; harm, disaster; punishment]; as a term of abuse, [scoundrel].

So, yes it does appear that malum/mala is not intended as a part of malus and therefore means evil rather than bad. However, saying that malum defined as evil does not equal wrong is a distinction without a difference (gotta luv that phrase - never heard anyone but lawyers use it). Look in the thesaurus under "wrong" and you get this:

1 that which is morally unacceptable — see EVIL

They're synonyms.

Are you really positing that "..[an] angry woman who broke the public peace by habitually arguing and quarreling with her neighbors." is inherently evil? Really?

No, I'm saying it doesn't actually fit under either definition, but that the characteristics of the law fit more closely to the characteristics of laws we are taught to group under malum in se. It comes from the common law, has an ancient heritage, and was not enacted by statute.

and

"punishable by dunking: being placed in a chair and submerged in a river or pond."

this is not immoral behavior of the State? Really? Seriously?

In way back times punishment for every felony was death and other wonderful things like trial by combat, trial by ordeal, and branding existed. At that time the punishment you object to was probably considered a measured punishment. However, please note that by the time it was eliminated in the US, by State v. Palendrano, it was a simple misdemeanor like any other. It was banished from US law not because the conduct was deemed proper or the punishment onerous, but because it could only be applied to members of one sex.

Anonymous Prosecutor

I went over to Matlock's place because I was going to tweak him about a certain rash statement denying the natural football superiority of the SEC. In the end, I just didn't have enough cruelness in my heart, but I did stumble across a post I think everybody should read - Top Ten Things Prosecutors Hate About Defense Attorneys:

6. Forgetting I have a boss and office policies. I don't get to make this stuff up as I go. As much as I would like to dismiss the crappy case, I can't. As much as I would like to reduce it to a misdemeanor, I can't. I have a boss. We have office policies. If I want to have this job next week, I have to follow them. Don't like it, then take it up with my boss.

I'm sure ya'll will have all sorts of fun reading the list.

Malum Prohibitum - The Law School Hangover

For those of you who don't know, way back in law school most lawyers are taught a way to divide the law. The all-powerful professor looks down on his students and tells them that there is a line in the sand. On one side of the line are laws which are malum in se, on the other are laws which are malum prohibitum. All the law students look up confused;, the law is divided on the basis of whether an apple (malum) is "in its self" or "prohibited?" No, the kindly law professor explains, the other kind of malus - "bad." Ahhh. All the law students nod their collective heads, grateful for the enlightenment flowing from their beneficent law professor. And thus, one of the most contrived and useless legal divisions passes on to another generation of lawyers.

Malum in se laws are those which illegalize those acts which violate "the natural, moral or public principles of a civilized society." These are laws which have supposedly been around since time immemorial. The primary way we are told these are distinguished is that they were illegal under the common law.

Malum prohibitum laws are those which illegalize acts which would not, in and of themselves, be illegal. Generally, these are laws of societal organization and they were created by statutes.

It's a terrible way to think about the law, so anyone defining the two will stick to the most extreme examples. Premeditated murder is malum in se while jaywalking is malum prohibitum. Of course, any closer examination shows this attempt at organization to be badly flawed. For instance, Being a Common Scold would never fit under malum prohibitum. It's closer to malum in se, yet we have rejected this ancient common law as not comporting with modern sensibilities. It was malum in se common law from ancient times until the late 1960's - early 1970's. See State v. Palendrano 1972, 120 N.J. Super. 336. Malum in se is not the unbreakable granitic we have all been taught it is; it is just another construct for the organization of society. It is just malum prohibitum writ large. A better way of defining this breakdown would be pessimum prohibitum and malum prohibitum - a continuum from worst to least.

Why is this important? Because, the the impression our law professors leave us with from law school is that malum prohibitum laws are inferior. There's nothing actually wrong with breaking a malum prohibitum law since it is an illusory construct created out of thin air and the violation does no actual harm. This is absolutely incorrect.

The Legal Continuum: Pessimum to Malum

Every violation of a just law, whether it be murder or speeding, is an immoral act. Of course, the weight of the immorality of the two acts is not the same and that is reflected primarily in the punishment possible and the procedure used (no jury constitutionally required if potential sentence is less than 6 months). If an act does, in and of itself, major harm to a person or society it is highly immoral. If an act does lesser harm individual immorality is less. Each of these laws is immoral because it violates and disrupts societal order and organization.

It seems obvious, but let us examine why we don't assign equal weight to the morality of the two acts and therefore equal punishments. Murder ends lives. So does speeding. In 1996 there were over 19,000 murders in the U.S. In the same year about 13,000 people died because of speeding. This means that deaths because of speeding were 68% of deaths by murder. Yet, if a murderer gets 40 years a speeder doesn't get 27 years. Why not? Because immorality of murder is not distributed among as many people. The acts which result in murder involves few people and these few share responsibility for the murder. Let's assume 5 people committed one act of murder; each carries 20% of the responsibility for that murder. What about speeding? In 1996 there were 263,000 people in the U.S. and 67.7% of them were licensed drivers. That's 178,000 people driving legally. Assume 90% of them speed 2 times a week. That's 660,000 speeding events. Each person who commits a speeding event takes a share of responsibility for the 13,000 deaths for each speeding event. Each speeding event is 2% responsible for a death. Thus, if responsibility for a murder carries a 40 year maximum penalty we arrive at a .8 year maximum penalty for speeding.

Yes, I realize the model offered above is simplistic, makes assumptions, has all sorts of errors, and is wrong in all sorts of ways. Nevertheless, it makes the point. The greater the individual involvement in the damage caused other people and society the greater the moral culpability of that individual. For lack of a better term the minor offenses are "death by a thousand cuts" offenses. A singular violation does very little damage. A dozen violations probably doesn't result in much societal difficulty. A thousand may start to cause problems. If all 300+ million of us violate these laws there are serious effects.

Are There Laws Which It's Moral to Violate?

Unlike Tom, I do not believe that the institution of a law, either by a legislature (statute) or a judge (common law), carries an innate moral legitimacy. Laws can be, and have been, unjust - wherever they came from. However, laws are the rules of societal organization and therefore must be given some deference. They must be demonstrably immoral (slavery) or, if not facially immoral, lead to a demonstrably immoral result (segregation) before there is a right and duty to resist them. However, I do not believe that a mere disagreement with a law is enough to make violation a moral act. In order to justify violation of a law organizing society there must be a moral imperative.

And what would be a moral imperative? That's a discussion for another day (gotta get to work).

Morality and Immorality of "Not Guilty"

Jeremy Richey has a couple posts (1 & 2) as to whether it is "wrong for a guilty person to plead not guilty in court." He concludes that under our judicial system it is not. This blawger disagrees in part, agrees in part, and remands the morality of this matter for further consideration, should Jeremy be so advised.

Let me start by setting out some ground rules. (1) I'm not discussing "legal ethics." (2) I'm not referring to a pro forma "not guilty" at an initial arraignment. (3) The moral responsibility of the defendant is different than the moral responsibility of defense counsel and today's discussion is about the defendant.

Moral Responsibility of the Defendant

Once a defendant has broken the law, the personal moral responsibility for the act lies at her feet. As such, she acts immorally if she denies that responsibility. A plea of not guilty is an attempt to deny responsibility. Therefore, a plea of not guilty is an immoral act.

Competing Moral Obligations: The Excuses

It's an easy syllogism, but it's subject to a million modifications imposed upon it by the real world. Competing moral obligations are often put forth by defendants that have nothing to do guilt or innocence. Responsibility to family is probably the one dealt with the most often; the defendant will usually proclaim a duty to care for a child, spouse, or parent. Responsibility to society is another claim; a common form of this is a defendant's assertion that if he goes to jail he won't be able to keep his job and therefore won't be able to pay on his fines or back child support owed to the Division of Child Support.

Sometimes, perhaps often, perhaps quite often, these proclaimed responsibilities are excuses given to dodge the taking of personal moral responsibility for the illegal act. The defendant didn't care about these other responsibilities when she got caught shoplifting the third time in two years (that's third time caught, not committed). If she gets released she won't think about these responsibilities when she heads back to the mall to shoplift again. Please note, I am not saying these arguments are not valid in a sentencing hearing. I do not believe in their validity in the decision as to whether to plead not guilty to an illegal act the defendant has committed.

Competing Moral Obligations: The Few Pursuing the Perfect

So, then the question becomes, is there a time when it is morally correct for a guilty person to plead not guilty? I'd put the situation through a basic two-part test.

1) (a)Is the law morally reprehensible, or
(b) Will obedience to the law lead to a morally reprehensible result?
AND
2) Can a not guilty plea actually accomplish anything?

Both 1)(a) and (b) are justifications. 1)(a) raises the question of at what point a particular aspect of the majority's societal compact (personified in a statute) becomes so immoral that an individual is obligated to resist? It would not merely be a law which personifies a societal decision the defendant doesn't like (i.e. making marijuana illegal). It would have to be a statute which so damages the moral health of society that it is impossible to ignore (slavery, suffrage, etc.). Of course, these are things which are much easier seen with 20/20 hindsight. We praise those who had the foresight and fortitude to stand against the majority in the name of these causes. We forget those who had the the fortitude to stand for moral principles which we now view as failed, wrong or irrelevant.

1)(b) is the necessity justification. It is what allows self defense or trespassing "safe harbor" exceptions. It is generally pretty straight forward, usually involving threat to life or limb.

2) is about practicality and it's going to be the hangup for most defendants. If a normal, non-famous, 22 year old defendant pleads not guilty to a charge, purely on moral grounds, in a mostly empty courtroom and it does nothing to expose or change an immoral law - only having the effect of getting the defendant an extra year in jail - that is probably a person we should admire. We should try to talk her out of it, but we should admire the impulse. Assuming she will continue to act in pursuit of the moral ideal we have a duty to discourage her from an impractical absolutism which would deny further work on that ideal for longer than necessary. The good should not be ignored by blinders keeping one focused solely on the perfect.

Let's be clear here. The combination of 1)(a) & 2) will be rare. These are people such as Susan B. Anthony and Martin Luther King who are fighting for greater moral goods. They are not the usual people we see in court. 1)(b) & 2) will be more common, but still not applicable in the majority of cases. After all, there will seldom be a justification defense for things like shoplifting, embezzlement, or robbery.

Affect of the Immoral Not Guilty Plea on Lawyers and Court

Not much. Sure, a guilty person might be found not guilty because of the immoral refusal to accept responsibility. However, the defense counsel, prosecutor, and trial court are not responsible for the defendant's moral decision as to whether to take responsibility for the act. Quite simply, the trial system doesn't care. It is set up to test the government's ability to prove guilt - not to judge the defendant's morality. The stains on the souls of those in the dock are between them and God, not them and the court.

The Second Lawyer:The View From the Other Side

Brian Tannebaum, over at Criminal Defense, lays out his reasons for not becoming the "second lawyer." In other words, he tells us why he won't take a case if another attorney is already doing the work. This set me to thinking about what the entry of an attorney looks like and means from my side of the bench.

You know when I see 90% of "second attorneys?" After I tender a plea offer. And I almost never see a change in attorney if I offer probation or a misdemeanor instead of a felony. If someone is in jail and the offer is a year or less it usually doesn't happen. Of course, the more time offered, the more likely a new attorney will pop up. What does that mean? Usually one of three things. 1) The Great Stall is on (most likely). 2) The Great Bluster is on. 3) The Wheeler-Dealer has arrived (least likely).

The Great Stall - There are a couple different ways this plays out. However, it always starts when the trial date is imminent and it usually involves an offender who has no real defense. The offender hires a new attorney anywhen from 2 days before to the morning of trial. Of course, the attorney asks for a continuance because there is no way he can be ready in time for trial. Now, if the offender has been smart about it he's hired an extremely busy attorney who won't be able to set a date for a couple months and will probably end up continuing the case several times because he's in federal court or has a murder trial in another jurisdiction or . . .
If the offender isn't all that smart he will try to play rotating attorneys, "firing" each attorney just before trial and asking for a new attorney. This isn't the smartest way to stall; it can backfire because even the most obtuse judges usually catch on and put the defendant in jail pending trial after a couple attorney firings.

The Great Bluster - This guy got hired because all the local frequent flyers think he's a great lawyer. He huffs and he puffs and he puts on a great show. All the local ne'er-do-wells know "He will fight for you!" (tm) This is the type of person who walks in and tells you your case is the worst he's seen prosecuted in his 20 years of practice (each and every time) and even if you win he's going to fight it "all the way to the Supreme Court." Sometimes these guys are really quite good; think about it, if you are going to make it your business plan to anger everyone from appellate judges down to the lowliest rookie officer you aren't going to get any wiggle room - you have to be sharp and right. On the other hand, there are a lot of guys who act this way who are just terrible in court. They make impassioned arguments about statutes and constitutional law which anybody who's practiced for a couple months or done 5 minutes of research knows are bogus. They move for a mistrial every 5 minutes and object every time the prosecutor opens his mouth. Their clients love them all the way through the conviction.

Let's Make a Deal - This guy knows everybody. He goes out of his way to stay on good terms with the police and the prosecution and the judges. Something about him makes him very likeable or very respected or very tied in (usually a mix of the 3). The facts don't matter so much to this guy. He rarely goes to trial, but he works every possible angle behind the scenes to get a better deal for his client. Suddenly, you're getting a call from a 15 year, grizzled vet of the force who is saying, "I talked to Greg and he says Miss Smith has a drug problem and I don't care if she gets a drug program rather than the 3 years the guidelines call for." Of the three, this is the one least likely to be hired in late because the frequent flyers don't see how effective he is as most of his work is done on the down-low, behind the scenes. Usually, he's hired when someone with money and/or influence suddenly realizes his kid is in real trouble.

In reality, my offer doesn't usually change when a new attorney comes on. Often the appearance of the new attorney, especially a Blusterer, means that the chances of there actually being a trial go up, but I've never really minded going to trial so that doesn't change my offer. By the time the second attorney comes in I've already assessed the case and made my offer. In fact, one of the most annoying things is when I have to change the offer and feed the impression that the "real attorney" has forced me to do something the court appointed attorney couldn't. Sometimes the new attorney has come up with something which changes my evaluation. Usually, the change is because of something entirely outside the control of the defense attorney like a witness moving to Utah or a piece of evidence popping up out of left field.

Cool New Commonwealth Attorney Site

Our office has put up a new website which is, in my ubiased opinion, one of the better ones in the Commonwealth.





Before the site was put together others were looked at. I preffered the one in the middle; my boss preffered
the one on the top. The one at the bottom seems to have popped up in the meantime.