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March 11, 2012

Could and should defendants and their attorneys seek to "crash" justice system by demanding trials?

The question in the title of this post is prompted by this provocative opinion piece by my colleague Michelle Alexander, which appears in today's New York Times.  The piece is headlined "Go to Trial: Crash the Justice System," and here are excerpts:

After years as a civil rights lawyer, I rarely find myself speechless.  But some questions a woman I know posed during a phone conversation one recent evening gave me pause: “What would happen if we organized thousands, even hundreds of thousands, of people charged with crimes to refuse to play the game, to refuse to plea out?  What if they all insisted on their Sixth Amendment right to trial?  Couldn’t we bring the whole system to a halt just like that?”

The woman was Susan Burton, who knows a lot about being processed through the criminal justice system....

I was stunned by Susan’s question about plea bargains because she — of all people — knows the risks involved in forcing prosecutors to make cases against people who have been charged with crimes.  Could she be serious about organizing people, on a large scale, to refuse to plea-bargain when charged with a crime?  “Yes, I’m serious,” she flatly replied.

I launched, predictably, into a lecture about what prosecutors would do to people if they actually tried to stand up for their rights.  The Bill of Rights guarantees the accused basic safeguards, including the right to be informed of charges against them, to an impartial, fair and speedy jury trial, to cross-examine witnesses and to the assistance of counsel.

But in this era of mass incarceration — when our nation’s prison population has quintupled in a few decades partly as a result of the war on drugs and the “get tough” movement — these rights are, for the overwhelming majority of people hauled into courtrooms across America, theoretical.  More than 90 percent of criminal cases are never tried before a jury. Most people charged with crimes forfeit their constitutional rights and plead guilty.

“The truth is that government officials have deliberately engineered the system to assure that the jury trial system established by the Constitution is seldom used,” said Timothy Lynch, director of the criminal justice project at the libertarian Cato Institute.  In other words: the system is rigged.

In the race to incarcerate, politicians champion stiff sentences for nearly all crimes, including harsh mandatory minimum sentences and three-strikes laws; the result is a dramatic power shift, from judges to prosecutors.

The Supreme Court ruled in 1978 that threatening someone with life imprisonment for a minor crime in an effort to induce him to forfeit a jury trial did not violate his Sixth Amendment right to trial.  Thirteen years later, in Harmelin v. Michigan, the court ruled that life imprisonment for a first-time drug offense did not violate the Eighth Amendment’s ban on cruel and unusual punishment.

No wonder, then, that most people waive their rights....

On the phone, Susan said she knew exactly what was involved in asking people who have been charged with crimes to reject plea bargains, and press for trial.  “Believe me, I know.  I’m asking what we can do.  Can we crash the system just by exercising our rights?”

The answer is yes.  The system of mass incarceration depends almost entirely on the cooperation of those it seeks to control.  If everyone charged with crimes suddenly exercised his constitutional rights, there would not be enough judges, lawyers or prison cells to deal with the ensuing tsunami of litigation.  Not everyone would have to join for the revolt to have an impact; as the legal scholar Angela J. Davis noted, “if the number of people exercising their trial rights suddenly doubled or tripled in some jurisdictions, it would create chaos.”

Such chaos would force mass incarceration to the top of the agenda for politicians and policy makers, leaving them only two viable options: sharply scale back the number of criminal cases filed (for drug possession, for example) or amend the Constitution (or eviscerate it by judicial “emergency” fiat).  Either action would create a crisis and the system would crash — it could no longer function as it had before.  Mass protest would force a public conversation that, to date, we have been content to avoid.

In telling Susan that she was right, I found myself uneasy.  “As a mother myself, I don’t think there’s anything I wouldn’t plead guilty to if a prosecutor told me that accepting a plea was the only way to get home to my children,” I said.  “I truly can’t imagine risking life imprisonment, so how can I urge others to take that risk — even if it would send shock waves through a fundamentally immoral and unjust system?”

Susan, silent for a while, replied: “I’m not saying we should do it.  I’m saying we ought to know that it’s an option.  People should understand that simply exercising their rights would shake the foundations of our justice system which works only so long as we accept its terms.  As you know, another brutal system of racial and social control once prevailed in this country, and it never would have ended if some people weren’t willing to risk their lives.  It would be nice if reasoned argument would do, but as we’ve seen that’s just not the case.  So maybe, just maybe, if we truly want to end this system, some of us will have to risk our lives.”

March 11, 2012 at 11:59 PM | Permalink

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Comments

I have strongly urged innocent defendants to not only refuse pleas, but to demand the personal destruction of the prosecutor and of the judge. Start by demanding total e-discovery. This motion cannot be refused on relevance grounds, because it is not relevant. It serves the purposes of disqualification. Then report all untoward utterances and computer records to the Disciplinary Counsel and to the Judicial Review Board.

One must hire a lawyer malpractice expert to terrorize the criminal defense lawyer into attacking his meal ticket, the prosecutor. I know from one of the commenters here that they are friends. They get together after cases and drink to the stupidity of the public, he once told me.

Posted by: Supremacy Claus | Mar 12, 2012 1:24:09 AM

i've said this same thing for YEARS if only 10% or so stood up and said KISS OFF! Take me to TRIAL and i'm NOT waiving TIME or anything else.... The THUD of the u.s justice sytem hitting the floor would be the new SHOT heard around the world!

Posted by: rodsmith | Mar 12, 2012 1:48:17 AM

Speed and efficiency have replaced the purposes of the criminal law, as the lawyer has taken it over. So says this former prosecutor in his historical review.

http://www.amazon.com/exec/obidos/ASIN/0195374681/thevolocons0d-20/

Posted by: Supremacy Claus | Mar 12, 2012 5:15:02 AM

The thing is it might be in the collective interest of all criminals to do so but it is in the individual interest of very few. And under those circumstances it seems like it would be very difficult to convince someone who likely already thinks of self first and foremost to potentially take one for the team.

I would also have strong reservations about whether attorney discipline boards would see such advice as actually being in the best interest of each individual client. And that is what the lawyer is required to represent, not the interests of all criminal defendants as a whole, the lawyer is supposed to do what is best for the client in front of them right now and to the hell with any possible future clients.

Posted by: Soronel Haetir | Mar 12, 2012 7:20:31 AM

Sure, "crashing the system" will be of great benefit to all. Explain to me how the the guy who "stands up" and his driving on suspended license case gets dismissed benefits when the child molestor and murderer (who are, let's say for argument, absolutely unquestionably guilty) get the same windfall and walk free with him. Maybe they even decide to follow him home to his family..... yeah, great solution. Same genius would consider it logical to protest nuclear plants by blowing them up.

Posted by: Rich Mantei | Mar 12, 2012 8:10:00 AM

http://en.wikipedia.org/wiki/Prisoner's_dilemma

Soronel gets it right, both in game theory terms and attorney ethics [represent clients, not causes.]

Posted by: Robert Barnhart | Mar 12, 2012 8:49:56 AM

The system -- of, by and for tyrannical prosecutors, hack politicians and prison-industries stakeholders -- has lost its way and deserves to be crashed.

But, yes, it's difficult to see how such an altogether desirable thing might actually happen.

Posted by: John K | Mar 12, 2012 9:16:13 AM

Not very unique. Go read "One Just Man" (1974) by James Mills. Here is a review:

James Mills' novel, ONE JUST MAN, is the story of New York City Legal Aid criminal attorney Al Dori, who becomes increasingly unhappy with the way justice is practiced in overburdened New York criminal courts. The only way to keep the court and prison machinery moving is to deal in plea bargains for the majority of the criminal cases. The result is that the guilty, and especially the professional criminals, receive low sentences in exchange for their pleas, while the truly innocent poor who refuse to plead and instead go to trial, spend months or years in jail awaiting that trail and are subject to appalling physical and mental degradation. So Dori decides to change the way justice is practiced in New York with his ultimate goal of having millions of dollars more designated for the city's criminal justice system to allow it to function according to Dori's vision, nobly and correctly.

His first move - understood and approved by his regularly assigned assistant prosecutor - is to refuse to accept pleas as soon as his client refuses one, rather than to try more than once to convince the client that the plea is probably in his best interest. His Legal Aid colleagues get on board, as do many of the younger prosecutors. The decreasing number of plea-bargains begins to slow down the system, but Dori isn't finished. He meets with a tough and feared leader in New York's Tombs prison and convinces him, along with his boys, to essentially organize the prisoners, who Dori believes, should gain better living and medical conditions, and most importantly the right to a fair system of justice which would afford the innocent the ability to request trial without damaging themselves by doing so.

Dori has seriously misjudged the consequences of what amounts to his strike.

The prisoners begin beating anyone who accepts a plea bargain. The prison guards, many of whom are sympathetic with the prisoner's complaints about their intolerable conditions, walk out in sympathy, leaving no one to get them food or medicine or to perform the basic mechanics of running the jail; but as the cops are still arresting, men start living four to a one man cell. Violence is endemic resulting in a prison riot. The police and jail commissioners then order the release of the non-violent prisoners and order the police not to arrest anyone for crimes other than murder, first-degree assault, robbery, and rape. The police find themselves not only overwhelmed by the newly increased number of released prisoners but also irate about the orders to ignore vast parts of the law. They go on strike. Eventually they are joined by the fire fighters and sanitations workers, not out of ideology, but because the streets have become too dangerous for them to work.

Dori, with noble intentions but single-mindedly myopic, had foreseen none of this. He flees a chaotic, crime filled, and completely non-functioning New York where he correctly fears getting killed. But he is instead arrested and jailed. The establishment decides that Dori, who is visited occasionally in jail by a psychiatrist, is insane. Dori says he is as sane as he could be. The finale of this segment is essentially the climax of the plot and, having probably already detailed too much plot as it is, I will not give it away.

Posted by: ? | Mar 12, 2012 9:20:21 AM

In 1978, AZ instituted the executive-branch-sentencing system we have nationally today. The Pima County Attorney and the Public Defender refused to plea-bargain for a four-year period; this was before the USSG and the mirroring of state-federal crimes. We saw: If the appointed defenders (PDs, gov-contract, and Panel) try cases, the 6amen retained-counsel right is revitalized. Defendants do spend the money if it pays them to do so. Prosecutors do give plea bargains to retained lawyers with more time than they to devote to that case going to trial. Appointed defenders do tire, and so rotate out of the bureaucratic-lifer-status to private practice, civil as often as not. Judges and prosecutors do stay, and multiply. IMHO, a criminal defense lawyer.

Posted by: TucsonBarry | Mar 12, 2012 9:26:47 AM

Thanks for the suggestion, ?.

Posted by: Robert Barnhart | Mar 12, 2012 9:27:38 AM

Soronel, helping "all criminals" isn't the reason the system should be crashed. It should be crashed to protect citizens who've been wrongfully accused of crimes.

Posted by: John K | Mar 12, 2012 9:33:45 AM

Has anyone thought about what the results would if there was a system crash?

Posted by: John Neff | Mar 12, 2012 10:03:19 AM

Apparently, James Mills did.

Posted by: C | Mar 12, 2012 10:36:55 AM

As an AUSA, I didn't like plea bargaining and preferred trials. I was virtually alone in this, both among my colleagues and the defense bar.

Here's how it actually works: Settling a case is quicker and cheaper FOR COUNSEL than trying it. This is the reason the huge majority of criminal AND CIVIL cases get settled. Private counsel can take more cases, and thus get more fees, by settling than by going to trial.

As to criminal cases, the article is based on a Marxist fantasy the the criminal justice system exists to suppress the lower class, especially blacks. What it actually exists for is the protection of everyone, blacks included, from the depredations of thugs, crooks and strongarms, whom the article laughably pretends to not exist.

It also, and even more laughably, pretends that masses of innocent defendants are hustled into pleading guilty. The truth is that there is no such thing as "masses" of innocent defendants, and the actual reason defendants plead guilty is that the evidence has them dead to rights, and they'd prefer that the whole messy thing not be spread out in a trial.

Talk to any honest criminal defense lawyer, as I have many times, and they will tell you that actually innocent defendants are scarce as hen's teeth. If Michelle Alexander doesn't know this, it's only because she doesn't WANT to know it.

Posted by: Bill Otis | Mar 12, 2012 10:44:08 AM

yes, Bill, innocent people are scarce as hen's teeth . . . . but they are there, and the pressure for them to cave is immense. Also, think of the people arrested for things like videotaping cops . . . .

I understand that we will never satisfy certain lefties, but there is enough unfairness in the criminal justice system that we should work to improve it. The noble work of thousands upon thousands of honest cops, prosecutors etc. is undermined by the petty tyrannies that pop up enough times to cause a hard core guy like me to worry. I just wish our friends on the left were honest enough to admit when they are in the wrong.

Posted by: federalist | Mar 12, 2012 10:58:10 AM

Federalist. Well said.

Posted by: Michael R. Levine | Mar 12, 2012 12:01:31 PM

sorry bill but i have to give federalist this one! the numbers i saw said 10% of everyone convicted EVERY YEAR were factualy innocent.
That is more than enough to bring thing down around the ears of the twits who runit!

As for it not being allowed by lawyer ethics.... guess the fist question would be WHAT ethics? considering the large number of faulse imprisonments by underhanded and ILLEGAL tricks by DA's and Judges you would be hard put to find an average american who would think a lawyer had any!

We don't need lawyers help in this area. We have the WEB!

Posted by: rodsmith | Mar 12, 2012 12:23:59 PM

Federalist, Bill:

That is what I have been saying for the past year. I am not against the DP, but everytime I say that this human, imperfect system should be made better, (at least try), I am accused of being a leftist or libertarian. I am more conservative than Bill. I just want to see LE, DAs, judges and politicians (i.e., BIG GOVERNMENT) held ACCOUNTABLE for their ACTIONS and demand that the USSC actually read the constitution and stop pandering. I have no respect for the judiciary, they think it is a Country Club.

Posted by: albeed | Mar 12, 2012 1:54:46 PM

federalist --

I disagree with very little of what you say. There are badge-heavy cops, just as there are gavel-heavy judges, and prosecutors in love with their power.

The question is one of emphasis. Michelle Alexander emphasizes a small part of the system to paint the entire country as a cauldron of racist, capitalist hate. That is a false picture, and it breeds a false and damaging contempt for institutions that, while not flawless (no institution is), have served us well, particularly over the last two decades as crime has plunged.

The question is also one of trade-off's. We can re-arrange the rules so that there is an even better chance than the enormous likelihood that exists now that the innocent will be freed. But in doing so, we will perforce expand the chance that the guilty will be freed as well. This has actual and substantial costs. Tomorrow's victims of a wrongly acquitted thug are not less real, and not less deserving of the law's protection, for the fact that their names are not known today.

This is what people like Michelle Alexander miss. They miss it because they intentionally ignore it. And they ignore it because they don't care.

Posted by: Bill Otis | Mar 12, 2012 2:01:50 PM

Yep. The problem, I think, with most lefties is that they think that society only has a right to protect itself if it is perfect. But no human system is perfect. However, when the system proves itself impervious to correcting manifest injustices, e.g., arresting people for videotaping cops in public, those of us on the law enforcement side of the debate cannot succumb to the lefty picking and choosing of victims. The lefty doesn't care about the nameless victims; often, the law enforcement supporter cares less than he or she should (not counting you in this company, Bill) about hapless victims caught in the maw of the system and out of control cops/prosecutors. These horror stories (and some of them truly are horror stories) undermine public safety by weakening the resolve to be tough on crime, and they often appear to be an appalling waste of resources. It's one thing for a cop on the beat to arrest someone for videotaping them, but what does it say when the state's attorney doubles down and actually files charges in the face of the requirement that people have a legitimate expectation of privacy? (How can one have a "legitimate expectation of privacy when one is in public?) How are these people to be trusted with any power? That's what's at stake here.

Posted by: federalist | Mar 12, 2012 2:18:05 PM

Bill,

Sorry, I have to disagree with your claim that the innocent have a good chance of being cleared eventually. That may well be true for those few who draw death sentences (they get resources far out of proportion to the merits of their claims) but is ever more unlikely as the severity sentence goes down. By the time someone is facing less than 20 20 years or so they might as well forget about it.

Posted by: Soronel Haetir | Mar 12, 2012 2:54:37 PM

sorry bill but you are wrong here!

"The question is also one of trade-off's. We can re-arrange the rules so that there is an even better chance than the enormous likelihood that exists now that the innocent will be freed. But in doing so, we will perforce expand the chance that the guilty will be freed as well. This has actual and substantial costs. Tomorrow's victims of a wrongly acquitted thug are not less real, and not less deserving of the law's protection, for the fact that their names are not known today.

This is what people like Michelle Alexander miss. They miss it because they intentionally ignore it. And they ignore it because they don't care."

It's not that we don't care. BUT we are of the belief that what was part of the fabric of our society that made us great! was as ability to look beyond that. Especially in our justice sytem where in the begining the ideal was that better 10 GUILTY go free than ONE innocent man go to jail. These days the hate in our society has taken it 360 degrees the other way. Better 10 innocent go free than we miss hammering that ONE guility EVEN IF the only thing they MAY be guilty of is CONTEMPT OF COP!

sorry these days there is a lot reasons for society to have a LOT of contempt for cops and most of the rest of the system!

Posted by: rodsmith | Mar 12, 2012 3:54:10 PM

would you like to expand on this bit of baloney!

"Tomorrow's victims of a wrongly acquitted thug are not less real, and not less deserving of the law's protection, for the fact that their names are not known today."

Just HOW is it possible to be WRONGLY aquitted! IF the state can't get it's act togther and take someone to TRIAL and then during that trial get a conviction BEYOND A REASONABLE DOUBT!

Just how the hell is it WRONGLY AQUITTED?

sorry i must have overlooked that page of the new abridged constution that says "Aquitted = GUILTY"

Posted by: rodsmith | Mar 12, 2012 3:56:43 PM

What is a bigger threat to the perceived legitimacy of our legal system?
Wrongful convictions?
Wrongful acquittals?
Our use of the reasonable doubt pardigm means we want lesser wrongful convictions as opposed to lesser wrongful acquittals.

Posted by: ? | Mar 12, 2012 4:25:17 PM

Soronel --

"Sorry, I have to disagree with your claim that the innocent have a good chance of being cleared eventually."

The innocent have a good chance -- indeed an overwhelming chance -- of never being charged at all; or if they are charged, of getting the charges dismissed; or if they are not dismissed, of being acquitted.

It's not like prosecutor's offices are out there looking for business. They are suffering from the same budget squeeze as everyone else. And it's not like there's no crime, or a dearth of criminals.

The idea that prosecutors are beating the hustings to round up innocent people to indict for phony, non-existent crimes is thoroughly mistaken. They have an overflow of stuff to do with the 100% guilty.

Posted by: Bill Otis | Mar 12, 2012 4:44:17 PM

rodsmith --

"Just HOW is it possible to be WRONGLY aquitted!"

When the defendant did it, and was of sound mind and knew what he was doing, but gets off anyway, that is a wrongful acquittal.

Everyone on this board know that juries sometimes simply make mistakes. Sometimes those mistakes are in convicting people who didn't do it, and sometimes they are in acquitting people who did it, and were proved to have done it, see, e.g., OJ, Casey Anthony, but the jury just blows it. It happens.

Posted by: Bill Otis | Mar 12, 2012 4:50:47 PM

Bill, I agree in part...Guilty pleas are done to avoid the mess of a trial...In federal court overwhelmingly, guilty pleas are done to receive the 3 level drop and the significant drop in sentence...secondary is the mess.. People faceing life or a very long sentence, often are the ones that go to trial...What the heck, nothing to loose or they have money and play a better defense game.....

Posted by: Midwest Guy | Mar 12, 2012 4:55:26 PM

? --

"What is a bigger threat to the perceived legitimacy of our legal system?
Wrongful convictions?
Wrongful acquittals?"

The most potent threat to the perceived legitimacy of our legal system is when it fails to allow ordinary people to live in peace and safety, and is oblivious to the injury, pain and loss that are inflicted on such people by criminals.

The system was widely and correctly held in disrepute in the sixties and seventies because crime was rampant. Now crime is less than half what it was 20 years ago. It is for precisely this reason that -- unlike, say, 1968 -- crime and criminal law issues are not even on the radar screen as issues in this campaign, a fact Doug Berman has often lamented.

A "legitimate" system is one that effectively protects the public within Constitutional bounds. We have made huge strides in doing that since the criminal heyday of the sixties and seventies, and it is no time to go back.

Posted by: Bill Otis | Mar 12, 2012 5:00:59 PM

Bill:

Adding my .02, for what that's worth, I do not believe that this is really just a question of guilt or innocence. I absolutely believe what you say regarding the scarcity of truly innocent defendants (though I disagree with your estimation of the likelihood of eventual exoneration for those individuals, even overlooking the costs in time and dollars in getting that exoneration -- I've done a lot of work with the Innocence Project in my state, and while exonerated defendants are rare, the ones who are most likely innocent but never exonerated for dead witnesses and destroyed evidence are depressingly common).

Take the example from the article. Maybe the woman who pled to a felony drug offense was guilty, and maybe not. But even for my purposes, assume that she was guilty of that felony offense. The point is not to ask the question of guilt or innocence, but to ask the question of fundamental fairness. I know that I'm coming from the other side of the thin blue line, but it seems to me that things like what happened to the mother in the piece just is not fair.

I know for sure that there are competing considerations -- because punishment is a part of justice both for society and for the victims of crime. But I believe there's a tipping line beyond which is becomes harder and harder to say that the results are just. I think that we see a lot of that in our justice system, especially in the tough-on-crime era.

I see crashing the system as a way for people who are largely disenfranchised by virtue of their felony convictions as a way to petition the government for redress or, in Michelle Alexander's words, would be to force a conversation that to date we have happily avoided having. In essence, as a class, it's the only real power that members of the criminal class such as myself have to force the government to take notice -- it's to start making noise.

I, for one, think it's far past time we had that collective conversation.

Cheers.

Posted by: Guy | Mar 12, 2012 5:03:30 PM

'Everyone on this board knows that juries sometimes simply make mistakes.'

No, the mistakes are made by the judges, prosecutors and lawyers. The juries can only follow the instructions given using testimony to come to a conclusion.

Posted by: lax | Mar 12, 2012 5:21:27 PM

Guy --

For the moment, I'll just say that Doug's work in maintaining this board is an important part of the collective conversation you seek. We are already having it. There is a similar converstation, albeit from a different perspective, going on at Crime and Consequences, and, I'm sure, on many other blogs.

The conversation is heartily welcome. But it should not, in my view, start out with the utterly false assumption that the system is a malovolent machine, bent on devouring blacks and the poor. Nor should it start out oblivious to the huge successes we have had over the last thirty years or so. In that time, protections for criminal defendants have increased, and crime has dramatically decreased. This is no small achievement, and should be applauded, not attacked.

Finally, I am grateful for the honesty and sincerity of your comments, here and before. You have contributed to making this thread what it should be, namely, an ad hominem-free thoughtful exchange of ideas. Thank you.

Posted by: Bill Otis | Mar 12, 2012 5:30:41 PM

I know very little about law, so I have to ask what may be a very stupid question.
Isn't crashing the system on purpose a crime? Isn't there some sort of "Conspiracy to obstruct Justice" charge that someone could be charged with if they talked about this in a serious nature?

Posted by: JS | Mar 12, 2012 5:41:36 PM

lax --

Juries are no less fallible than the other actors in the system. They sometimes see things that are not there, and sometimes miss things that ARE there. They can also misinterpret instructions or err in applying them.

Of course it's asymmetrical. When a jury makes a mistake that results in a conviction, the defendant can seek relief in the appellate court. When it makes a mistake that results in a conviction, that's it.

I agree that this is the imbalance the Framers chose, as would I if it were up to me. But it's still an imbalance, and juries still make mistakes.

Posted by: Bill Otis | Mar 12, 2012 6:15:30 PM

hmm

"When the defendant did it, and was of sound mind and knew what he was doing, but gets off anyway, that is a wrongful acquittal."

Ahh but ISN'T THAT the whole reason for the jury trial....LEGALLY they DIDNT' DO IT! till AFTER THAT TRIAL! that's the way our system is suposed to work and your ideal is a big part of why we have a problem with it now! I say again how IS BEING AQUITED by a LEGALLY EMPANLED JURY a wrongful acquittal"

as for this!

"Everyone on this board know that juries sometimes simply make mistakes. Sometimes those mistakes are in convicting people who didn't do it, and sometimes they are in acquitting people who did it, and were proved to have done it, see, e.g., OJ, Casey Anthony, but the jury just blows it. It happens."

they were not FOUND GUILTY for those crimes so you can't say there was any mistake. Legally they are INNOCENT! now in cases where DNA shows diff i would give you that ...but sorry not in the 80% of cases that are nothing but guesses and more guesses on top of conjecture and wishful thinkiing!

Posted by: rodsmith | Mar 12, 2012 9:22:02 PM

hmm

"I know very little about law, so I have to ask what may be a very stupid question.
Isn't crashing the system on purpose a crime? Isn't there some sort of "Conspiracy to obstruct Justice" charge that someone could be charged with if they talked about this in a serious nature?

Posted by: JS | Mar 12, 2012 5:41:36 PM"

In this case NO since all they are talking about is requiring the court to give them EACH and EVERY RIGHT they are due! It's not their fault the court has become a RUBBER-STAMP MACHINE where 90% of all criminal convictions is never taken where it's suppoed to LEGALY GO.....BEFORE A JURY OF THEIR PEERS!

Posted by: rodsmith | Mar 12, 2012 9:23:43 PM

Bill:

Don't get me wrong, I am certainly grateful for *any* conversation that occurs on the topic. But people like you and I already think about these things, and would whether or not Berman's blog or other outlets existed. Most people don't give it a second thought. Most people see the broadcast about the drug sweep or read the story about the conviction made in their county's court and it passes from their consciousness as quickly as it entered. I'm not saying that's bad or evil or that people are stupid, or, if they are, then I was just as bad and evil and stupid as everyone else because I was the *exact* same way before I was arrested. Then, I got to think about the criminal justice system whether or not I wanted to.

The conversation needs to happen amongst people who don't read Berman's blog. It needs to happen amongst people that don't have tremendous occasion to giver consideration to the criminal justice system. It needs to happen on a society-wide level, and I don't know of any easy way to make that happen. Crashing the system seems like it would do it, though -- impossible and potentially disastrous as that may actually be.

I agree with you that the system is not and should not be regarded as malevolent or worthless. Just the other day I was reading about how Mexico is just now getting around to giving defendants the right to appear before a judge to plead their case. In India, you can spend *years* in pre-trial detention before your case is ever heard. Comparatively speaking, our system of justice is miles ahead of that.

But that fact does not make the injustice inherent in our system any less real. It doesn't make the needless suffering of defendants, of Americans, of people any less real. It does not mean that malevolence does not exist within our system, and, importantly, it does not mean that we should not work to change that.

I appreciate your kind words. We may disagree, but you are not my enemy. As I said before, I respect you and what you do. I know we come from different ends of the justice system, maybe about as far apart as you can get, but I really do believe that we want the same things. We want less crime, fewer victims, fewer addicts, fewer deaths. We don't want a justice system that produces career-criminals or, if it is not producing them, stops the cycle in some meaningful way and that, for those who refuse to be stopped, that the collateral damage doesn't spill over onto those who do want to live a different life.

But I think it's going to take all of us to figure it out. I don't want the system tilted too far in either direction, and so that means everyone has to be a part of it. If it's just the cops and the politicians, then it's so easy to be tough-on-crime and forget that defendants, even the scary, terrible ones, are human beings as well. If it's just the lefties and the defendants like me, then victims don't get their due, and that's unacceptable to me, as well.

So, in short, I'm glad we can talk about it, if even here. It's a start, at least.

Cheers.

Posted by: Guy | Mar 12, 2012 11:47:38 PM

JS,

In order to bring successful conspiracy charges the government would have to prove at least one unlawful act that was agreed to by the various parties. It can't be a criminal conspiracy to so long as each of the overt acts is legal. And here each and every defendant has the very definite and individual right to demand trial and that the government prove each charge beyond reasonable doubt.

If the discussion were crashing the system by blowing stuff up or burning down the courthouse, or possibly even chaining people together in the courtroom to be a disruption you might well be able to prove a criminal conspiracy (certainly the first two cases if you can show that two or more people acted in concert). But the right to demand the government meet its burden of proof in each and every case is so fundamental, at a constitutional level, that I see no way that upheld convictions could result from such a demand. That isn't to say some highly unethical prosecutor would not bring such charges and even not saying that they would not result in conviction upon initial trial, which might well be more than enough to satisfy that unethical prosecutor since they have total personal immunity for such a choice.

Posted by: Soronel Haetir | Mar 13, 2012 12:53:26 AM

i agree with everything you just said guy!

plus i would point out that at least here we can STILL talk about the problems facing this country and not just in the courts! Many parts of the world it would bring you a PRISON sentence at a minimum!

Posted by: rodsmith | Mar 13, 2012 1:11:20 AM

I was convicted by a jury of criminal evasion by means of filing false tax a returns. But the indictment did not allege the returns were false. Thus, I was convicted for a federal offense that did not exist at law.

I was incarcerated at Lompoc Federal Prison Camp for about 4 yrs.

During my time I encountered countless victims of the plea bargin process. The plea bargin results from 'government" imposed power, allowed by the feredal courts, to imprison the non-cooperating victim with a much longer prison sentence that that offerred by the plea. In the context of any other situtation this is legally defined as 'extortion'.

The prosecutors explain there is almost a 95% chance that the governemnt will obtain a jury verdict against the 'victim'.

What most people do not understand who have never been 'indicted' by the 'United States' that you are most certainly going to plea or be convicted by a jury. Thus, the problem exists at the 'grand jury" level.

Once the goverment decides to seek an indictment it will almost certainly obtain the 'indictment' as shown in my case where the 'grand jury' granted an indictment against me which did not allege a federal offense. As is often asserted in legal circles, "the US can indict a ham sandwhich". Once that indictment is issued against the victim, whether that person had 'intent to commit a federal offense' is no longer relevant. That person will be convicted or will plea to protect his family from financial devastation and long prison time.

As for exoneration I have filed, pro se, a habeas 2255 motion to obtain a Certificate of Applealability to overturn my wrongful conviction for over a year now with the Ninth Circuit, with no answer. I was sentenced to 63 months in prison about Decemeber 2006 for a crime I did not commit, was not charged with and which was barred by the criminal statute of limitations even if I had filed false tax returns for tax year 1995 and 1996, which I did not not as verified by a Tax Court judgment for 1995 and 1996.

The 'law' is now whatever the federal courts and the Supreme Court say it is and citizens should be aware of the unlimited power of selective indictment by US attorneys for their own career advancement.

That is why about 95% of indicted citizens accept the US attorney's 'BARGIN'. Who can blame them!

Posted by: Charles J. Sigerseth | Mar 13, 2012 11:06:22 AM

Mr. Sigerseth, I know, like you from experience, exactly what you mean. Mr. Otis and others, do not and in their ignorance ( innocent or not) will despairage you and your claims. Those who have not faced indictment for non-crimes or crimes of which they were not guilty cannot, repeat: cannot, understand. Rather like the condition of actual combat veterans vs. arm-chair or rear area commandos.
Keep trying. Who knows, perhaps you will come before a judge who actually applies the law.

Posted by: tim rudisill | Mar 13, 2012 12:14:59 PM

1) Conviction rate at trial is around 70%, not 95%. That 70% fraction is roughly equivalent to the standard of "beyond a reasonable doubt."

2) Take death penalty cases, the ultimate in carefulness, cost, and certainty. For every 5 executions a year, there is one exoneration. The 3000 people on death row have not all been tested with DNA. However 20% should a rough order of magnitude estimate of the error rate. Among the exonerated, a quarter have confessed, likely due to incompetent interrogation. Imagine an error rate of 20% in the auto mechanic or medical field. There would be arrests all around.

3) This level of horrible incompetence has a remedy. End all self-dealt immunities of prosecutors and judges. An amendment will be necessary to deter these incompetents when their carelessness harms the innocent defendant.

Posted by: Supremacy Claus | Mar 13, 2012 3:18:31 PM

tim rudisill --

1. I appreciate your using your real name and (in the past) having told your story.

2. You are wrong in claiming that I am ignorant of the system; I have a great deal of experience with it.

3. You are correct in stating that I do not personally know what it feels like to be indicted (of course neither do the huge majority of people who comment here). The reason I have never been indicted is predominantly that I don't steal stuff, don't use violence to settle disputes, and don't try razzle-dazzle swindles. Those who do any of these things assume the risk.

4. Because I respect your candor, I will say only that the perspective of those who have been convicted and served time is understandably one-sided, and one-sided accounts miss the broader perspective needed to see things more realistically.

Posted by: Bill Otis | Mar 13, 2012 4:16:26 PM


'those who have been convicted and served time is understandably one-sided, and one-sided accounts miss the broader perspective needed to see things more realistically.'

and to be fair to those who have been there, I feel you occasionally fail to see the opposing viewpoint and possibly also suffer from this quite human ailment as many do, including myself

Posted by: lax | Mar 13, 2012 6:51:02 PM

i have to agree here lax. You are so wrong here bill!

just like you are on the outside looking in they are on the INSIDE looking out. sorry but they have a hell of a lot better UPCLOSE look at the justice sytem of america then you do.

Posted by: rodsmith | Mar 13, 2012 8:07:23 PM

rodsmith --

Just about everyone in prison says he's innocent.

What percentage of them do you think actually ARE innocent -- i.e., didn't do it?

Posted by: Bill Otis | Mar 13, 2012 11:12:26 PM

lol according to an doj study i saw years ago 10% minimum! and that was BEFORE we went crime nuts taking some people to trial 5-6 or more TIMES before MANAGING TO GET A CONVICTION!

out of what even 2 million people that's a hell of a lot of innocent people who have now had a upclose and personal experience with what we calla justice system!

and you still missed the point!

just becasue they have been CONVICTED does not mean they DON'T HAVE A POINT on how messed up the sytem has become.

They are in fact and in LAW still AMERICAN CITIZENS. They have a RIGHT to have their view heard and not just disreguarded by ANYONE. All that means is they may HAVE TO bring the damn system down around the ears of those to stuck up to listen. If that means 1,000 murderers and 10,0000 pedophiiles go free! well like you said that's just the cost of doing business! A COST those who refuse to listen have required not the ones who paid it!

Posted by: rodsmith | Mar 14, 2012 12:17:00 AM

It seems to me that those who are currently indicted may have a lot to lose by going to trial.
It also seems that if one were to consider crashing the system the best way would be for people NOT under indictment to find a law that will ensure a trial but has little chance of significant time in prison. Groups of people would then break that law and demand a trial.
Unfortunately, accoring to Soronel, that would probably bring on the Conspiracy charge.

Posted by: JS | Mar 14, 2012 1:51:35 AM

Dear Mr. Otis, Your civility is appreciated. Yes, I know that for most there is a decided lack of knowledge of "the other side". However, I did a lot of "jail house lawyering" while "down" and many years before had studied law and been involved in fugitive apprehension . I have, perhaps, a wider knowledge base than most.Though I have never been, nor desired to be, a prosecutor and thus lack that experience set. I do say, and believe, that there are many persons incarcerated for crimes they did not commit, i.e., took a plea to one crime and may have committed some other or none.
The "greatest offenders", among the statutes, imo, are the conspiracy statutes. 371 ( general conspiracy), drug conspiracy, ( 946) and money laundering conspiracy (1956 (h) and 1957 (h)). These are " the fair-haired child of the modern prosecutors nursery" , as a great jurist once warned. and I have seen and experienced what can be done with them. They do , as the jurist warned, constitute a net into which many innocent persons have been and will be gathered.
Further, I have seen and know of a number of persons who took pleas only because their parents, grandparents, wives, et alia were threatened with indictment or trial unless they did.
Forgive me if I express a certain distrust of AUSA's and the courts in general...it comes from experience. I love the law and what it is supposed to be and do. It is my deepest desire that we might enjoy the protection of law but also the protection afforded by real and trust worthy AUSA's who believed that unlike any other attorney they are the attorney for the people and even when they lose a case, they have won because the law and justice have been served.
This was what I believed the case to be , at the Federal level, before my experiences with it in the un-real real-world.
Again, my thanks for your courtesy and I say that I will simply have to continue, for reasons sufficient to me, to disagree with you on a number of points.

Posted by: tim rudisill | Mar 14, 2012 10:24:58 AM

Simple reform proposal.

Appellate reviews are conducted by experienced investigators, not by know nothing lawyers appointed to the bench from political connections. A 20% innocence rate is intolerable, as would be even a 10%. So reviewers should be seeking to eliminate this false positive. We know there is a 90% false negative rate for serious, real crimes, the FBI Index felonies, 20 million a year, with 2 million prosecutions. That can only be solved by public self-help, and mandatory arming of law abiding citizens, with all criminals being shot at the scene, preferably dead.

Posted by: Supremacy Claus | Mar 14, 2012 12:13:31 PM

To those of you who think innocent people are rarely accused and convicted...let me give you the perspective of one such person. I was assaulted by an investigator in the DAs office in front of the DA. I was tackled and arrested for some things I said to the DA (I agree, I shouldn't have said the things I said, but..) I was initially arrested for disorderly conduct but within a few hours a story was concocted that I assaulted the investigator. The investigator, with full knowledge of the DA, filed a blatantly false affidavit. There's more to the story but this is the basics. The fact is, I was innocent. I did not assault anyone. I was actually the victim of an assault. So, the investigator was the real criminal. He assaulted me, which is a crime, then he committed perjury. By no coincidence, my case ended up in the court of a judge who was the former DA and still beleives himself to be a prosecutor. I plead guilty in response to a deal to reduce the charge from a felony to a misdemeanor. Had I not done so I would have been convicted of a felony based on completely perjured testimony. You tell me, how was I supposed to be acquitted when it was my word against theirs in a county where jurors notoriously believe every word prosecutors say? Now, you tell me, how do I prove my innocence now? Someone said we don't want to go back to the days when crime was out of control. Maybe that's right. But, on the other hand, do we want to continue to allow criminals to run the system?

Posted by: mls | Mar 14, 2012 3:56:18 PM

"The innocent have a good chance -- indeed an overwhelming chance -- of never being charged at all; or if they are charged, of getting the charges dismissed; or if they are not dismissed, of being acquitted.

It's not like prosecutor's offices are out there looking for business. They are suffering from the same budget squeeze as everyone else. And it's not like there's no crime, or a dearth of criminals.

The idea that prosecutors are beating the hustings to round up innocent people to indict for phony, non-existent crimes is thoroughly mistaken. They have an overflow of stuff to do with the 100% guilty."

Actually, I think there is ample evidence that some prosecutors do want as much business as they can get, regardless of guilt or innocence. I'm thinking of one county in particular, it is home to a smaller city, so its not really rural county, but not the big city, either. The most powerful people in town are the folks that run the criminal justice system. The way they see things is that the more people they arrest and prosecute, the bigger their kingdom is. It has little do with justice, protecting society, guilt or innocence. It is all about power. So, yes, some prosecutors are out there looking for business. Why do you think they always support and often push for putting new criminal laws on the books. The answer is simple: more power.

Posted by: mls | Mar 14, 2012 4:04:27 PM

Anonymous, unverifiable accounts presenting (and omitting) selected details, and entirely unaccompanied by specifics, may be viewed for what they are worth.

Posted by: Bill Otis | Mar 14, 2012 4:31:13 PM

Bill, you just made my point. How do I prove my innocence? You just automatically assume I omitted information and that I'm guilty. I'd be happy to respond to any questions and give you the COMPLETE story if you'd like. But, to do that would take up considerable space here, so I tried to summarize. If you want me to write a few thousand words with every detail, I'd be happy to, just let me know. Of course, that still wouldn't prove my innocence because it comes down to my word agains their's and, I have no doubt, you will always beleive their's, even if you knew that this DAs office has a history of unethical conduct (if you want the verifcation I can send you dozens of sources). But, you would still believe them, because, while you may give lip service to the idea that a few innocent people are convicted, in your heart you believe that everyone that is accused is guilty, that prosecutors never lie, that defendants always lie, and that the guys in the white hats are always the good guys. So, just indulge me for a minute, put your biases aside, and assume I'm innocent. How do I prove it?

Posted by: mls | Mar 14, 2012 6:50:17 PM

Okay, Bill, here are the specifics (you asked for it): I'm a former CPS investigator and supervisor and former police officer. At the time this happened I was a business owner. I had never been arrested or been in any trouble. My mentally ill wife smothered my 2 year old son because she believed people were trying to break into the house and that she was protecting him from something worse than death. I had a home office and computers that I used for my business were taken to be examined for evidence. I was told I could get them back in a couple of weeks. My wife never used them and I knew there was no evidence on them but I understood why they took them. About a week later I called asking about when I could get the computers back. I was told it would be four months before the guy who examined them could even get to them. A few days later I tried to call the investigating officer a few times but he did not return my calls. I contacted an attorney but was told even if they filed something it still could take months to get them back. So, I went to the DAs office to ask for their assistance as my business was basically at a stand still without the computers (they had databases and software on them that I needed) and I still needed to make a living. Remember, this was about a week after my son's funeral. My life was a shambles, overwhelming grief, and I was trying to, somehow, pick up the pieces and keep going. The investigator came out into the lobby and took me back into the hallway. He left me standing there while he went to call the guy who had the computers. I happened to be standing near the DA's office and his door opened. I asked if I could talk to him and began to explain about my need for the computers. His response was "shut your mouth." So as not to "omit" anything - I admit I lost my temper and called him some very impolite names. The investigator reappeared and told me to leave. On my way out I was still yelling and saying things like I was going to the press, etc. I was grabbed from behind and told by the investigator I was going to jail. When I asked what for he said "disorderly conduct." Other investigators appeared and I was thrown to the floor with about six people on top of me. I was not even resisting. In fact, I remember looking at a lady sitting in the lobby and said "do you see what they are doing to me." This lady was a witness and my attorney did send an investigator to talk to her. She confirmed that I did not assault anyone. But, my attorney said that they would claim that she did not see everything, as the incident started inside the offices and they would claim the assault occurred there. Also, she had a criminal record and so the jury probably wouldn't beleive her over the people in the DA's office. I was taken to jail and placed in solitary confinement. They wouldn't even give me a book to read. All I could do was sit and grieve for my son. I spent five days in solitary confinement before bonding out. I was also denied medical treatment during that time. But, let's not leave any details out. So, I was arrested late afternoon. Later that evening I was informed that I was charged with assault on a public servant, resisting arrest, and criminal trespass. I had no clue where they came up with the idea that I assaulted anyone. And the criminal trespass made no sense because I was on my way out of the office and my full intent was to get on the elevator and leave. Later I learned that they claimed I elbowed the investigator attempting to get back in the office. THis was a complete lie. But, Bill, I know you don't believe that. Tell me, how do I prove it? But, there's more. This is in a county that has several district court judges. Bail is typically set by a justice of the peace in the jail. But, guess what, I was taken before Judge Jack Skeen about 8:00 the morning after my arrest. If you've never heard that name, well, he's rather infamous in Texas. He's the long time former DA who withheld all kinds of evidence in the Kerry Max Cook case. He has a well documented history of prosecutorial misconduct and, on the bench, has a blatant bias. In a recent case, the 14th court of appeals said that he made up ad hoc rules of evidence to help the prosecution win. It was no coincidence that I was standing before him having my bail set at $190,000. That's a lot of money for calling someone a few names, dont' ya think..oh, but Bill, I know you don't believe me. So, there I was, looking at going to trial, in a county with notoriously prosecutor friendly juries, with a biased, crooked judge who, my attorney told me probably would not even let the lady sitting in the lobby testify. My initial attorney was afraid to file a motion to recuse the judge, even though he was the alleged victims former supervisor. So, I hired another attorney - one that I knew they were afraid of (btw there aren't but maybe 3 or 4 attorneys in the county that they are afraid of). They then offered the deal to reduce the charge to a misdemeanor with a year of deferred adjudication probation. What would you do? Risk going to prison for somethign you didn't do? or take the deal? Factor into that the fact that I was still grieving the loss of my son, facing the possible trial of my wife's case...I honestly don't know if I could have handled, emotionally, going through a trial. So, I took the deal. Was it the right thing to do? I think it was the smart thing to do..but, I've regretted it every day since. I wish I had fought. But, if I had, I'd probably be in prison for something I didn't do. I know, Bill, you think I'm guilty and probably deserved to go to prison.

Okay, Bill, did I give you enough specifics. I'll be happy to give you any more details you'd like. I'm sorry, I dont' remember what I was wearing that day, or what I had for breakfast, but anything I remember I'd be happy to tell you. So, now, you tell me, how do I prove my innocence?

Posted by: mls | Mar 14, 2012 7:16:53 PM

Bill:

Your vacuous defense of your gubermint speaks louder than the eloquent selection of your words by a wide margin.

Posted by: albeed | Mar 14, 2012 10:11:51 PM

"The most potent threat to the perceived legitimacy of our legal system is when it fails to allow ordinary people to live in peace and safety, and is oblivious to the injury, pain and loss that are inflicted on such people by criminals.

The system was widely and correctly held in disrepute in the sixties and seventies because crime was rampant. Now crime is less than half what it was 20 years ago. It is for precisely this reason that -- unlike, say, 1968 -- crime and criminal law issues are not even on the radar screen as issues in this campaign, a fact Doug Berman has often lamented.

A "legitimate" system is one that effectively protects the public within Constitutional bounds. We have made huge strides in doing that since the criminal heyday of the sixties and seventies, and it is no time to go back."

Bill, the "legitimacy" of the system is threatened by the fact that people are becoming increasingly aware of how truly flawed it is with the flood of DNA and other exonerations. I would take issue with you assertion that the system is currently operating "within Constitutional bounds. That depends on your interpretation of the Constitution. Unfortunately, the courts have watered down the Constitution so much that the framers wouldn't recognize it. Under your definition of "legitimacy," the criminal justice system of China is very "legitimate."

"The US incarcerates at a rate 4 to 7 times higher than other western nations such as the United Kingdom, France, Italy and Germany . . .." http://sentencing.typepad.com/sentencing_law_and_policy/2012/03/could-and-should-defendants-and-their-attorneys-seek-to-crash-justice-system-by-demanding-trials.html#comments

The United States has the highest documented incarceration rate in the world (743 per 100,000 population), Russia has the second highest rate (577 per 100,000), followed by Rwanda (561 per 100,000).[6] As of year-end 2009 the USA rate was 743 adults incarcerated in prisons and jails per 100,000 population.[4][6] At year-end 2007 the United States had less than 5% of the world's population[27] and 23.4% of the world's prison and jail population (adult inmates).[7]

By comparison the incarceration rate in England and Wales[clarification needed] in October 2011 was 155 people imprisoned per 100,000 residents;[28] the rate for Norway in May 2010 was 71 inmates per 100,000;[29] Netherlands in April 2010 was 94 per 100,000;[30] Australia in June 2010 was 133 per 100,000;[31] and New Zealand in October 2010 was 203 per 100,000.[32]http://en.wikipedia.org/wiki/Incarceration_in_the_United_States


You assert that the reduced crime rate is due to increased punishment rates, right? It doesn't appear that the citizens of these other countries, with much lower rates of incarceration, are cowering in their homes because violent crime is rampant in the streets. So, why is it that we have to lock up such a larger number of our citizens? Is it maybe something in American DNA that makes us so much more criminal than the rest of the world?

Maybe you should consider that there are other factors that contribute to the lower crime rate now than in decades past other than just locking everyone we can up for as long as we can. To attribute it all to incarceration is a narrow minded view, in my opinion. If that were true, the countries that have lower rates of incarceration would have higher crime rates, wouldn't they? But,that is not the case. I don't mean to be insulting, at all, but the ideas that prosecutors never lie or cheat, defendants always lie, only guilty people are convicted, etc. represent a simplistic, shallow, and naive perspective. Likewise, believing that by locking as many people up as we can for as long as we can is the only reason crime has decreased when that idea is not supported by comparisons with the rest of the world, is also a narrow, simplistic, and naive perspective. It would be nice if the world was as simple as you imagine it to be, but it ain't.

Posted by: mls | Mar 14, 2012 11:08:51 PM

MLS,

I don't see incarceration rates as having any bearing whatsoever on whether the criminal justice system is operating within constitutional bounds. I just fail to see how the items are at all related. It would be perfectly possible to have the entire population incarcerated or none and still have the system used to get there follow the few requirements of the constitution.

Posted by: Soronel Haetir | Mar 14, 2012 11:36:06 PM

give it up soronel! once the u.s supreme court ruled it was perfectly legal for cops to LIE. CHEAT, STEAL, whatever it took to get a conviction and that DA's and judges were also free to comit whatever crimes they want,,,fake evidence, purjured testimony and so on. The u.s justice systme lost whatever little remaining cloak of legality!

sorry when a TEXAS jury decided a DA has been so crooked and so out there that they not only FREE the individual but order at FOURTEEN MILLION DOLLAR DAMAGE AWARD! you know that you have one sleezebag son of a bitch for a DA who deserves NOTHING BUT A BULLET TO THE HEAD! and after said slimeball appeals...you know the the great retards on the USSC state.

TOUGH SHIT! award canned! poor guy should be lucky the little twits didn't order him BACK TO PRISON!

Posted by: rodsmith | Mar 14, 2012 11:48:23 PM

'mls'

Really appreciated the coherent dialog. Thanks for the effort expended in posting your thoughts.

Posted by: lax | Mar 15, 2012 8:15:22 PM

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