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June 17, 2010

An echo of Graham in Michigan sentencing of young juve killer?

The title of this post is prompted by this local story from Michigan, which is headlined "DeMarco Harris, 13, spared from life sentence." Here are the details from the start of the article:

A 13-year-old convicted of fatally shooting a Genesee County woman last year was potentially spared a life behind bars when he was sentenced this morning.

DeMarco Harris, who was 12 when he shot and killed 24-year-old Trisha Babcock in a botched robbery Aug. 1, will be placed in a juvenile facility until he's 21, after which the court will decide whether he should be released, Wayne County Circuit Judge Sheila Gibson ruled today.

Harris was convicted in his second trial by a jury last month of felony murder, armed robbery and curfew violation in the case. His first trial ended with a hung jury.

Gibson could have sentenced Harris to life in prison under a state law that allows juveniles to be designated as adults. She had wide latitude, however, and could have sentenced him as a juvenile, an adult, or a blending of the two. She opted for the latter, warning that if he commits a felony during his time in the juvenile center, he'll automatically be sentenced as an adult.

If the court decides to impose an adult sentence when Harris is 21, he would receive mandatory life without parole on the felony murder charge, 18-40 years on the assault with intent to rob while armed charge and a consecutive sentence of two years for using a firearm to commit a felony, according to the Wayne County Prosecutor's Office.

Of course, the Supreme Court's opinion in Graham only categorically prohibited LWOP sentences for juves who commit non-homicide offenses.  But it seems this case would have been a fascinating Graham follow-up had the judge here decided to impose an LWOP sentence on a 12-year-old killer.

June 17, 2010 at 05:55 PM | Permalink

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At this age, the defendant is more dangerous, and more impulsive than when an adult. It is the elderly that are less dangerous and less likely to kill again. The youngest age palatable to the public is the most productive age for the death penalty, preventing 1000's of future crimes. This defendant should be considered to be a violent career criminal. The judge should be sued for all future damages caused by this defendant. It should include all injuries inflicted on prison staff, visitors and fellow students. Why? Because his dangerousness has the foreseeability and the validity of planetary orbits. This judge is coddling this predator, and should be held accountable for all damages to others.

Nor does it matter how the defendant came to be the way he is, anymore than it doesn't how a pitcher can pitch at 90 mph, and Prof. Berman had excellent grades. If the defendant should be spared the consequences of his crimes, the pitcher should not get paid $10 million, Prof. Berman should not get his endowed chair, because it was not their faults how they born or the environment that encouraged their achievements.

Posted by: Supremacy Claus | Jun 17, 2010 6:18:03 PM

Somewhat random question: Does felony murder count as a "homicide offense" for purposes of Graham? What about conspiracy to commit murder? While these crimes do result in a dead body, they are distinctly different from slashing someone's throat or putting a bullet into someone's head.

Supremacy Clause: I can't tell if you're being serious or not. A 12 year old who kills someone is MORE culpable than an adult who does the same thing? Either you're being sarcastic or you've got a screw loose.

Posted by: BruceM | Jun 17, 2010 8:24:22 PM

Culpability is not a fact of nature. It is a Scholasticist superstition. God had the power to assess it when your eternal soul reached His Kingdom after death.

What is a fact in nature, the character of this defendant. He is more impulsive, less mature, more reactive, more intense, less controllable than older defendants. If given an opportunity and access to weapons, he has also shown himself to be cold blooded and heartless. He is a bigger threat than older defendant. He has less experience than they do, but is otherwise more dangerous.

It depends on your priority. Safety is mine. The rest of the aims of the criminal law are false or unlawful in our secular nation.

Posted by: Supremacy Claus | Jun 17, 2010 9:22:19 PM

Ah religious nut. That explains your lack of mentation.

I'll just note in passing that, assuming you are a Christian, you should forgive this criminal, along with all the rest of them. And quit worrying about your safety - "god works in mysterious ways" as I'm sure you say thousands of times per day, and if god wants your family to be raped and you to be shot in the head by an angry 12 year-old, well it's all just part of "His" plan... who are YOU to question "His" plan? Don't just say you're a christian, act like one - turn the other cheek, thank the criminal for hurting you, and forgive him. Or find another religion more compatable with your own sense of morality and justice (or preferably no religion at all). Clearly christianity doesn't suit you.

Posted by: BruceM | Jun 17, 2010 9:33:13 PM

Bruce: Personal remarks show frustration in the traverse. You are not a lawyer, it is obvious, so despite your remarks, we have no dispute. I wish you well, but I want to help you a little.

You are a bit confused. You introduced a church derived superstition. A made up concept to intimidate the peasants and rich alike of the 13th Century, into forking over hard earned assets.

I have argued this Medieval garbage is prohibited by the Establishment Clause of our secular nation.

If you are with the left, you want to protect the vicious predator. Why? This predator generates massive government employment. The victims of crime generate no government jobs and may rot. "Conflict of interest" is a synonym for stealing by a middle class person.

Posted by: Supremacy Claus | Jun 17, 2010 11:20:47 PM

Actually I am a lawyer, and the only thing I hate more than religion is the attitude that all defendants are guilty and all guilty people should be locked up for as long as possible, if not executed, "for our safety." People are too willing and eager to give up their rights, liberties, and privacy for the illusion of safety from criminals. The fact that the nightly news is 1 minute of weather, 2 minutes of sports, and 27 minutes of random crime reports certainly exacerbates the fear of crime most people have.

Then there's the odd American custom of victim ass-sucking. In America everyone wants to be a victim, when you're a victim everyone - the entire system - owes you and you get tons of sycophantic attention. Most Americans would rather be a victim than a hero. Victim status is the ultimate status, and questioning said status is one of the ultimate American taboos (it falls under the forbidden notion of "blaming the victim"). "Victim's rights" alone has prejudiced more defendants and brought more unfairness into our criminal justice system than anything else. I take it you're one of the many americans who would agree that "criminals shouldn't have rights, their victims should!" That just sounds right so it must be. And thus the stupidity spreads....

To what "church derived superstition" are you referring? That "god works in mysterious ways"? That's a central tenet of all god-based religions. How else can you explain all the unanswered prayers, injustice, unfairness, horror and evil in a world purportedly controlled by an all-knowing, all-powerful, omniscient being?

Posted by: BruceM | Jun 18, 2010 12:09:34 AM

Gee, Bruce, sorry about that, you are obviously not a lawyer remark.

I do not have the attitudes you hate. I have the attitude that the criminal law is in utter failure due to the incompetence and self-serving of your profession. This lameness and incompetence is in stereo. You allow 9 of 10 crimes to go unanswered. When you have the person, the odds are you are punishing an irrelevant innocent person or someone who has violated a false malum prohibitum. Your profession sucks in every direction.

Culpability. It does not exist in nature. It cannot be found, nor measured, nor determined in any person. It is a false church doctrine.

Perhaps you are stupid or drunk enough to answer this question no lawyer will ever answer.

In law school, were ever told the real meaning of the word, reasonable, or why it is the central word of the law, rather than, useful, intelligent, advantageous, helpful, logical, profitable, what your common sense aunt would do. You were told the reasonable person had to stay fictional to stay "objective." Were you ever told why the reasonable person standard must be objective?

This is relevant to our religion discussion.

Posted by: Supremacy Claus | Jun 18, 2010 12:30:22 AM

Indeed, I've often said that three years of law school, as well as tens of thousands of judicial opinions can all be summed up with one word - reasonability. Objectively reasonable, not unreasonable, reasonable and prudent under the circumstances, reasonable for someone similarly situated, reasonable decision by a judge (appellate review is about reasonableness too), blah blah blah. That's what American jurisprudence all comes down to. Be reasonable. We could get rid of every law on the books and replace it with one simple law - the universal law - BE REASONABLE.

I'll answer your question. It has to be objectively reasonable because if subjective reasonableness were all that mattered, each person would have a different measure and standard for their own acceptable behavior. Ted Bundy would say he thinks it's reasonable to chop off the heads of brown-haired women. But that's objectively unreasonable no matter what he thinks. While defining the mythical "reasonable and prudent person" can often be hard to do, it's both logical and straightforward.

Plain old unreasonable action/inaction amounts to negligence (or maybe gross negligence). But the most (objectively) unreasonable actions/inactions are collectively deemed by society to be crimes. Yes there can, and nowadays often is, overlap between the two. Crimes are things that are objectively unreasonable to a very high degree. Or at least they are supposed to be - they used to be. Frankly I find nothing even slightly unreasonable about using drugs, especially if there's nothing unreasonable about using alcohol.

I agree that culpability does not exist in nature. It's a product of a society. Maybe I misunderstood you and you're not one of those people who think all our laws and morality and ethics come from some god. We don't need a stone tablet to figure out that if I can kill you, then you can kill me, or if I can steal from you, then you can steal from me, so those are rights we are willing to give up for the sake of living in a stable, safe society. If society is to function there must be some form of culpability for those who actions are extremely unreasonable, especially when said actions cause harm to other people or their property.

I think you and I may just disagree about the severity of punishment for those deemed culpable. If found guilty of murder in Peru, that Van Der Sloot guy is looking at between 15 to 35 years in prison. Here in America, for murder we start out with life without parole and usually seek to execute. We give 15 to 35 year prison sentences for stealing bread. I think Peru (and nearly every country other than the US) has more reasonable (there's that word again) sentences. And there is absolutely ZERO correlation between severity of punishment and decline in crime rates. I think 30 years, always with the chance for parole, should be the maximum sentence for any crime.

I don't know where you get the "9 out of 10 crimes go unanswered" figure, unless you're talking about the fact that on average every American commits a dozen crimes per day. If that's what you're referring to then it's good that 90% go unanswered. But you seem to be solely focused on violent crime. Assuming the government drags someone into court and accuses him of having committed a particular violent crime, there is a 98% chance that person will either be coerced into pleading guilty or will be convicted at trial. And they are bound to receive an overly-harsh sentence in order to placate the whiny vindictive unforgiving (usually overtly christian) victim.

The system is so pro-prosecutor, pro-police, anti-suspect, anti-defendant, anti-convict that I just can't abide anyone who attempts to make an argument for the justice system being too lenient.

Cops are sociopathic liars who "Know" (with the capital K) that they are exempt from the law. Prosecutors are likewise sociopaths who knowingly suborn perjury from cops and snitches (with whom they trade sentence reductions for the testimony they need) and rather than seeking justice, seek to convict the easiest person to convict, guilty or not, and ruin that person's life for the longest period possible.

I agree the criminal justice system sucks - it's horrible. I stopped doing criminal defense about two years ago because I got so fed up with the system. Every rule of procedure and evidence has been made - or changed - to help the prosecution and hurt the defense. Defendants aren't even allowed to invoke most defenses! The legislature should be able to define what acts constiutute crimes, but NOT what may and may not be used as a defense to those crimes. If my client wants to use the "victim was a stinking nigger and deserved to die" defense in a murder trial, more power to him if he can actually convince a modern 12-person jury to agree with him unanimously.

Based on my own observations, 50% of the people rotting away in prison are either innocent or innocent of the crime(s) for which they were convicted (but guilty of a lesser crime).

Posted by: BruceM | Jun 18, 2010 1:50:27 AM

There are 20 million FBI Index felonies a year. There are 2 million prosecutions. Here is the list of Index felonies.

"1. Criminal Homicide

2. Forcible Rape

3. Robbery

4. Aggravated Assault

5. Burglary

6. Larceny-Theft

7. Motor Vehicle Theft

8. Arson

Of those eight offenses, criminal homicide, forcible rape, aggravated assault and robbery are classified by the UCR as violent crimes. Burglary, larceny-theft, arson and motor vehicle theft is classified as property crimes."

Posted by: Supremacy Claus | Jun 18, 2010 7:39:56 AM

Did you ever wonder about reasonable? Why reasonable, and not kind, useful, intelligent, customary, etc.?

Here is why.

You are practicing the law of Henry of Bracton, nearly unchanged. Here is what St. Thomas Aquinas taught Henry. Man fell from Eden. His judgment and intellect are easily misled by the Seven Deadly Sins. St. Thomas argued that the most reliable guide to moral decisions is the New Testament. Reason differed from intellect. It is defined as the ability to perceive God's existence. And Reason is a far more reliable guide to decisions than logic or intellect. The New Testament is the story of Jesus Christ, and the most reliable guide to moral decisions. Reasonable has to be the central word of the law if you are a Scholasticist. It means, in accordance to the New Testament, a perception of the word of God, of the story of Jesus. The reasonable person has to be fictional because it cannot be your intelligent friend or your kind aunt. They are misled by the Fall from Eden. It has to be Jesus Christ.

The Scholasticists tried to prove the existence of God by physical proofs. They failed. However, their methods of observation and cataloguing nature led to the Renaissance and a scientific revolution. The moral standards of the New Testament are objective in the sense they came from God. Of course, they are no more objective than anyone else's personal feelings.

These orthodoxies were enforced by the Inquisition.

Posted by: Supremacy Claus | Jun 18, 2010 7:58:17 AM

You sound frustrated by 1) 95% clearance by plea deals; 2) 75% guilty verdict rates if a trial takes place; 3) the greater success of the pro se defense than of the government funded defense; 4) the tremendous pressure placed on the government funded defense to not go to trial.

The trial itself is a form of disputation, a method of arriving at an answer in Scholasticism. To my knowledge, the criminal trial has no reliability or validity statistics.

Posted by: Supremacy Claus | Jun 18, 2010 8:20:29 AM

"DeMarco Harris, who was 12 when he shot and killed 24-year-old Trisha Babcock in a botched robbery Aug. 1, will be placed in a juvenile facility until he's 21, after which the court will decide whether he should be released, Wayne County Circuit Judge Sheila Gibson ruled today. "

Does anyone else think this is wrong. He murdered an innocent woman. Yet, he could server only 9 years in prison. For murder. That is wrong.
And lets not kid ourselves, odds are he will be released at 21. This is why the courts should NOT automatically handle kids who commit murder in juvenile court.

Posted by: jim | Jun 18, 2010 9:04:32 AM

I think you're confusing Reason with reasonable. Being reasonable doesn't necessarily require the capacity to reason. The law can't require people to be kind, useful, intelligent. I have no problem with the concept of expecting people to be objectively reasonable. The only thing worth noting is the paradox that human beings are inherently unreasonable. So I would agree there is no such thing as the mythical reasonable and prudent person - it's an ideal, a figment of the law. But the point is we all have an affirmative duty to do our best to be reasonable even though it's inherently against our nature.

I do believe plea deals are inherently coercive and should be prohibited. If you're innocent, charged with a crime and are facing 25 to life if convicted but the state offers you 1 year in jail, the rational thing to do is take the year, innocence notwithstanding. You know the jury will presume your guilt merely for being there, accused in a criminal court standing at the defendant's table. We shouldn't be making it rational for innocent people to commit themselves to going to prison.

Prosecutors should have to try all cases they bring. Plea bargains should be absolutely prohibited. This will force prosecutors to select only the most severe cases for prosecution. Everything else should be dealt with civilly. The only people who should be facing criminal trials are murderers, rapists, burglars, robbers, severe assaults, and severe thefts. And only when there is ample evidence of guilt.

Also, proving a case beyond a reasonable doubt means that if the jury can't unanimously agree on guilt, it means the state didn't prove its case and it should mean an acquittal NOT a hung jury and a redo. After voir dire we can and should presume all selected jurors are reasonable people. If any of them has a reasonable doubt as to guilt, then why should the case result in a hung jury and why should the prosecution get a second chance? Requiring the jury to be unanimous on a not guilty verdict puts a huge burden on the defendant, and the entire burden is supposed to be on the prosecution.

Finally, it just amazes me that the average American, being a child-obsessed, psychological pedophile, constantly talking about "the children" "our children" "precious precious children" ... suddenly decides children - regardless of their young age - are no different than adults when they're accused of doing something bad. I should have to give up all my rights, liberties, privacy, and freedom because of protecting "The Precious Children" ... but when a 12 year old, whose brain is not fully developed and who is highly impressionable, incredibly stupid and uneducated, and more likely than not has horrible if not totally absent parents, when such a kid commits a crime try them as an adult, throw them in adult prison and keep him there for life!

I think it's perfectly reasonable for the young precious little DeMarco, despite his black-sounding name, to have to spend his entire teenage years from 13 to 21, locked up in a juvenile facility with other loud, annoying, whiny bitchy precious adorable little children.

9 years is a long time to be kept in a cage. We're so used to hearing sentences based on 40-50 year increments that we forget how long ONE year is. 24 hours locked up in a small room is a very long time. I think all prosecutors and police officers should have to spend one month locked up in a maximum security prison so they have some realistic concept of what sentences really mean.

I can't think of a bigger tragedy than taking a 12 year old and locking him up in prison for the rest of his life, which is nearly all ahead of him. At least a life sentence given to a 40 year old has some balance, there's no way a 40 year old will be spending 60-70 years locked up.

What I find amazing is that I freakin' HATE children. I resent politicians invoking them and their "safety" to deprive me of my rights, and I resent parents implying they are superior, more important citizens because they manage to breed and pollute the gene pool. There is no evil more pure than that of a child. Yet I'm the one who realizes how wrong it is to try children (especially 12-14 year olds, jesus) as adults. Want to try a 17 year old as an adult where there is evidence he committed the crime knowing that he'd get away with it because he wasn't yet legally an adult, okay I can tolerate that (i.e. it's not unreasonable).

Finally, I reject the notion that prison should be about retribution. The only valid reason for locking someone up and keeping them locked up is community safety. Screw the whiny victims and their "closure" and their Christian vindictiveness and Christ-like bloodlust and desire for revenge. If a murderer can be deemed safe after as little as, say, 100 days in prison, they should be released (that would be rare for first degree murder, but if we're talking about a law abiding citizen who momentarily went nuts and shot the man he found having sex with his wife, then 100 days is prison is more than sufficient).

I'll also point out that despite the politicians who love to talk about recidivism, there is a long history of murderers who served a decade or two, were released, and lived law abiding, productive lives. Drug users and pedophiles have high recidivism rates, but not murder. Drugs should be legal, so end of that problem, and we need to calm down about our obsession with sex offenders. Most of them are black 18 year olds who were caught making out with their white 17 year old (minor) girlfriends. Sex offender for life, statutory rape, permanent "civil" lockup. Insanity. Pure insanity. I'd rather 100 children be violently raped than one person kept locked up by the government without due process (as I said, I hate children).

Posted by: BruceM | Jun 18, 2010 1:45:34 PM

Thank you, BruceM. It's gratifying to hear from a lawyer who's not so fascinated and distracted by the intricacies of each new pro-government ruling that comes down that they've missed the fact the system's lost its way.

If it ever was about justice (proving cases and protecting rights) it isn't anymore. It's a turkey shoot for cops and prosecutors. Not at all a fair fight for citizens accused of crimes.

It's about convictions. It's about punishment harsh enough to help politicians feign toughness. It's about plea "agreements" leveraged by the ultra-tough-on-crime Rube Goldberg Justice Dispenser Machine (sentencing guidelines) and insanely harsh MMs. It's about appellate rulings conservative enough (anti-defendant) to discourage Congress from further marginalizing the role of judges.

Well done, Bruce.

Posted by: John K | Jun 18, 2010 4:04:42 PM

Well said John (obviously we are in agreement).

Posted by: BruceM | Jun 18, 2010 4:13:17 PM

i agree with this competely!

"I do believe plea deals are inherently coercive and should be prohibited. If you're innocent, charged with a crime and are facing 25 to life if convicted but the state offers you 1 year in jail, the rational thing to do is take the year, innocence notwithstanding. You know the jury will presume your guilt merely for being there, accused in a criminal court standing at the defendant's table. We shouldn't be making it rational for innocent people to commit themselves to going to prison.

Prosecutors should have to try all cases they bring. Plea bargains should be absolutely prohibited. This will force prosecutors to select only the most severe cases for prosecution. Everything else should be dealt with civilly. The only people who should be facing criminal trials are murderers, rapists, burglars, robbers, severe assaults, and severe thefts. And only when there is ample evidence of guilt.

Also, proving a case beyond a reasonable doubt means that if the jury can't unanimously agree on guilt, it means the state didn't prove its case and it should mean an acquittal NOT a hung jury and a redo."

Sorry but under our constitution that requires a trial by your peers a plea bargain is patiently ILLEGAL. It was originaly set up to be used only in an extreme trial. But like everything else the govt has taken they were given an inch and took a LIGHTYEAR! it went from 1% of criminal convictions to 90-95% of criminal convictions. Time to take it away and force DA's to actualy WORK and PROVE their cases. I also agree these cases where someone has had 2-3-4-5-6 trials need to end PERIOD. The same with the new favorite of "civil trials" that follow an aquital in a criminal trial that too is a NO-NO sorry last time i looked there is nothing in the constitution that allows so-called "civil" trials the very ideal that any one could think it's even close to legal to take someone found NOTGULITY in a criminal trial and then find them GUILTY in a civil trial for the very thing a criminal court which actualy has a HIGHER STANDARD has found them NOT GUILTY is simply TREASON.

Posted by: rodsmith3510 | Jun 18, 2010 10:17:37 PM

Yes a criminal trial should work as collateral estoppel against any subsequent civil proceedings. I understand that differences in burdens of proof exist, but even so.

I also believe the state should pay costs and legal expenses and attorneys' fees for the defendant when the trial results in an acquittal.

And finally, there should be THREE verdicts as there are in other countries: (1) Guilty (2) Not Proven (3) Innocent. This would stress that the prosecutor has the burden of proof. Too many americans think a not guilty verdict means the jury thought the defendant was factually innocent. The jury could have felt the defendant was more likely than not guilty, but that's NOT good enough, as it's NOT beyond a reasonable doubt. Also as it stands now, there is no way of vindicating yourself as a defendant, as I just said "not guilty" doesn't mean innocent. A defendant should have the opportunity to have a jury of his peers speak as to his actual innocence, rather than just the prosecutor's failure to present sufficient evidence of guilt.

If a jury does come back with an "innocent" verdict (an affirmative finding), that's when the prosecution should have to pay damages and attorney's fees to the defendant. And for every "innocent" verdict returned by a jury, an automatic ethics proceeding should be initiated against the prosecutor(s) who tried the case, trying to convict an innocent person. A simple "not proven" verdict is fair game. But if a jury thinks the defendant is actually innocent, that's prima facie proof that the prosecutors involved acted unethically. I'm not sayinig they should be automatically disbarred, just that the innocent verdict should trigger an ethics investigation with the state bar.

And now I'm waiting for some schmuck to say "oh yeah, well, whenever there's a guilty verdict then the defense attorney should be investigated by the state bar." Foolish consistency is the hobgoblin of little minds... and it always will be. Everyone deserves a defense, no matter how guilty they are. Every purported crime and every accused citizen does NOT deserve, nor require, a government prosecution.

Posted by: BruceM | Jun 19, 2010 6:32:34 AM

but that's just it!

"Yes a criminal trial should work as collateral estoppel against any subsequent civil proceedings. I understand that differences in burdens of proof exist, but even so."

the CRIMINAL trial has the higher burden of proof! so how can it possible be legal to go back to trial and convict someone using a LESSER burden of proof. That's totally idiotic and crimninal

would be about as stupid and criminal as taking some to trial on a felony having the individual found Not guilty! THEN take them to trial using the same info and actions that brought the felony trial but doing it as a mistermeinor trial and getting a conviction. sorry that should be a NON-STARTER nevewr mind that the U.S CONSTITUTION don't allow it in the first place. NOWHERE in that document do you find anything about allowing so-called "civil trial" following a criminal one! in fact what you do find is a pretty plain statement that you CAN'T DO IT

Posted by: rodsmith3510 | Jun 20, 2010 1:53:44 AM

I think Bruce is arguing for loser pays. So LA should have paid the expenses and fees of OJ's Dream Team. The public would have been upset.

I have a more moderate approach, with which Prof. Berman and some ALI types disagree. I find their argument ironic, litigation explosion.

Loser pays would deter too much. I suggest legal malpractice action against the prosecutor and against the judge be permitted, if it has taken place. Although, I oppose tort reform, I am willing to require a certificate of merit prior to the filing of such a claim. The argument against it is that it would establish duties to the adverse third party, as a standard of professional care. I list many such statutory duties from the Rules of Evidence, of Conduct, of Criminal Procedure, and from case law. If one of those rules is violated, the claim should be per se. The privity obstacle should be abolished. The trial within a trial should be prohibited (OK, malpractice took place, now try the original case to prove the verdict would have been innocent but for the malpractice).

http://supremacyclaus.blogspot.com/2007/05/ending-lawyer-immunity-from-legal.html

This is a neutral proposal. The prosecution should be able to sue the defense lawyer for frivolous or unprofessional tactics.

One of the effects will be to shrink the entire enterprise as liability always does, not just deterrence of the entity or of misconduct. You will have fewer prosecutions. One unintended consequence? Defense lawyers like Bruce may lose their jobs.

Posted by: Supremacy Claus | Jun 20, 2010 10:28:56 AM

LA should probably pay the dream team for having long tolerated a police force brutal enough to inspire the sort of skepticism and anti-authoritarianism that might have prompted the jury to nullify OJ's murder charges.

Posted by: JohnK | Jun 20, 2010 1:19:24 PM

I have from time to time questioned the thinking of the defense bar, but nothing I have said, ever, is as revealing as this thread.

I doubt what we're seeing here is representative, but I have to wonder: Where are the balanced defense lawyers? Kent Scheidegger, federalist and I get pelted as barbarians if we say Timmy McVeigh was justly executed, but there is not one word of criticism directed to BruceM's amazing views.

You people can't possibly be buying this. Or are you?

Posted by: Bill Otis | Jun 21, 2010 1:43:34 AM

Relax, Bill. I get the feeling there aren't many reformers in the ranks of defense attorneys. Moreover, the few who exist probably end up following BruceM's path to the exit once they realize the system is simply too broken to fix.

Posted by: JohnK | Jun 21, 2010 12:32:34 PM

i.e. democracy's biggest failing might be its inability to counteract the forces of extraordinarily effective, if mindless, demagoguery.

Posted by: JohnK | Jun 21, 2010 7:58:33 PM

I'd love it if you'd actually articulate why my views are wrong. Because they would result in lower conviction rates?

The harder a prosecutor's job is, the more freedom We The People have. Freedom and ease of prosecution are inversely proportional. Freedom is more important to me than the illusion of safety from crime. I have no problem with factually guilty people not being convincted because the government wasn't able to make a case. And I'm not scared of criminals. Shit happens. The best way to reduce crime is not prosecuting and locking up everyone accused of anything, but rather to keep abortion legal, encourage abortions, and guarantee free and easy to obtain abortions, paid by the government. Free abortion clinics on every street corner. Legalize drugs along with that and the crime rate (which is already extremely low) will drop to the lowest rate in human history, though it will take about 17-18 years for the full effect to be realized.

Also, I quit doing criminal defense years ago. The system was too rigged, every rule of procedure and evidence has been changed to favor the prosecution and make defense lawyers pointless. Here in Texas it's a waste of my time to defend people, the jury Knows the defendant is guilty just like they Know jesus is their lord and savior, and an overworked, brain-dead appointed counsel who sleeps during the trial will nearly always end up with the same result I, or any other attorney will.

I actually agree with the Texas Court of Criminal Appeals when it said it was not a Sixth Amendment violation or otherwise reversible error when a defendant's lawyer sleeps through most of his trial. The defense lawyer is there just for the illusion of fairness. Whether the lawyer is Clarence Darrow or a sleeping jackass who doesn't even know his client's name, the end result will be the same - GUILTY.

I would have loved to have practiced law during the days of Clarence Darrow... many laws were changed in response to his famous cases to make sure the same type of defense strategy could never successfully be used again. California rewrote its entire criminal code after OJ. In America, every high-profile acquittal has resulted in a change in the law, demanded by prosecutors and police.

I find it amazing that the views I've expressed in previous posts here are seen as extreme, though I'll concede they're definitely "unbalanced" insofar as the point is to bring balance back to the system.

Posted by: BruceM | Jun 21, 2010 9:44:39 PM

JohnK and BruceM --

If I thought it would do any good, I'd get down on my knees and pray that the Democratic Party would adopt whole cloth your ideas for "reform" and trumpet them as loudly as possible. The country is somewhat dumbed down, but not insane, and would give the Democrats even more of a bashing than the one they're headed for now, which is considerable.

I have no intention of arguing such propositions as this one by BruceM: "... we need to calm down about our obsession with sex offenders. Most of them are black 18 year olds who were caught making out with their white 17 year old (minor) girlfriends. Sex offender for life, statutory rape, permanent "civil" lockup. Insanity. Pure insanity. I'd rather 100 children be violently raped than one person kept locked up by the government without due process (as I said, I hate children)."

Have at it, guys. When I was an appellate lawyer for the Department of Justice, in about a quarter of the cases, defense counsel's opening argument was so blatantly preposterous or dishonest that, when I took the podium, my only words were, "Unless the court has questions, the government waives its right to respond." In twenty years, not one single time did I lose a case doing that.

Your "argument" is at that level. I am more than happy to let any balanced and fair-minded person evaluate it without any response from me. As I say, I wish you would broadcast it more loudly.

Posted by: Bill Otis | Jun 21, 2010 10:17:42 PM

I don't get why this kid needs to be considered a "career criminal". Hold him in the pen till he's of age, by all means, but how can we seriously claim that a 12-year-old has made a well-considered decision to choose a life of crime? We don't even know the particulars of the case, and why the murder occurred. Surely in the many decades ahead of him, he'll be able to reconsider his choices?

Posted by: MI Criminal Defense Lawyer | Aug 17, 2010 3:33:25 PM

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