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PERRIN LOVETT

~ Fiction, Freedom, and The West

PERRIN LOVETT

Tag Archives: John Adams

Trial By Combat

27 Wednesday May 2015

Posted by perrinlovett in Legal/Political Columns

≈ Comments Off on Trial By Combat

Tags

accused, Alexander Hamilton, America, ancient law, Athens, Boston Bombing, Boston Massacre, Boston Tea Party, Britain, Congress, Courts, crime, death penalty, Dzhokhar Tsarnaev, English common law, Fingoldin, freedom, Germany, John Adams, jury, King, law, Melkor, Natural Law, Parliament, people, police, punishment, Rome, Trial by Combat

Not too long ago I wrote about my experiences with the American Jury system in the 21st Century.  It is broken.  End of story.  Any acquittal you read about is an anomaly – a celebration of truth and luck in a world gone wrong.  Juries are no longer the last check against tyranny they were intended to be in ancient Rome or Athens.

Most people plead guilty to criminal offenses.  Most of the rest elect to the convicted (not just tried) by a state appointed and employed Judge.  The small few who make it before a jury – not of their peers – are usually found guilty.  Everything goes the state’s way. Many celebrate this fact. I do not.  We were supposed to have due process and equality under the law.  This is especially important to the little person facing the endless resources of the government.  It is also, now, a fiction.  We have none of it.  Just convictions.

united-states-courthouse

(Temple of doom.  Google.)

The defendant in the Boston Bombing trial, Dzhokhar Tsarnaev, was convicted and sentenced to death.  His was one of the oddest trials I have ever heard of.  It lacked even the plausible credibility of some Soviet-era show trials.  In June Tsarnaev learns whether the judge will condemn him to die.  He surely will be executed.

If, indeed, he did commit the alleged terror attack, Tsarnaev deserves to die.  However, as I have noted before, there is amble evidence to suggest a government link to the plot. If the government is involved in any way, there is usually a plot participation.  This might not excuse Tsarvaev but it would implicate others.  It won’t though.  There was absolutely no mention or murmur of this in court on Tsarnaev’s account.  Alarmingly, there was no murmur at all from the defendant.  There was no defense whatsoever.

In a way the defense strategy made some sense.  They knew, as do I, there is no hope for honest truth or justice in an American court.  Accordingly, they adopted an approach which plead Tsarnaev guilty while attempting to shift the blame to the defendant’s dead brother.  The ultimate attempt was not to evade a conviction (a given) but, rather, to avoid the death penalty.  The approach did not work.

The government opened with a sympathetic case – no-one likes terror attacks on innocent people.  The defense then opened by acknowledging the crime and the defendant’s participation therein.  “Yeah, he did it. But…”  They closed the same way.

Then, the government called witnesses.  These were victims who had survived the attack.  They told the jury and court of their terrible injuries.  Terrible as they are, they do not establish, at all, any criminal culpability.  No mind – Tsarnaev had already admitted guilt. In most cases these statements of victims come at the very end of the trial – after guilt has been adjudicated.  They are usually used to determine what level of punishment is deserved of the convicted.  This case saw all phases conveniently wrapped into one show.  No challenge or examination at all was conducted on behalf of the accused.

I, as a defense attorney, could have lessened the blow of these witnesses but asking them if they had ever seen (in person) my client before.  None of them had.  They had no way to link Tsarnaev to the crime scene.

That tenuous link came from a video and pictorial collage presented by the government. Cameras are everywhere these days and there were numerous shots of the Tsarnaev brothers at the Marathon.  Nothing showed them setting off or planting the bombs. Then again, the defendant had already admitted his guilt.

No challenge came to this presentation.  There was equal evidence of former government employees – current “security” contractors at the event – with the same backpacks and in the same places as the accused.  The difference was that several (not presented) photos showed the brothers leaving with laden backpacks while the agents walk away unencumbered.  Nevermind.  Guilt admitted, remember.

The government presented weak findings as to how the alleged bombs were made.  A good munitions expert could have dissected these as ridiculous.  None did.  All evidence was submitted without protest.  There was then the matter of an alleged admission written on the walls of a hideout boat.  No objections.

Given what they were presented with the jury rightly found the defendant guilty.  He lost his gamble as to the jury’s recommendation of death.  That should have come as no surprise.  To the open-eyed and open-minded it should come as an alarm as to where the system has settled.

This is no system in which to place any faith of fairness.  The prosecution will get whatever it seeks in most cases.  Nothing will change.  There are efforts to reform the game but it is too far gone.  There is no public support for such efforts.  Thus, any alternative seems logical, if it be at all feasible.

Before I go further let me state that everyone is entitled to a defense at trial in cases of alleged criminal offense.  Ages ago several British soldiers were tried and acquitted in the Boston Massacre.  Their attorney believed in justice, no matter how unpopular the accused.  His name was John Adams.  You may have heard of him, he served as our second President.

There is an older, if more archaic, alternative to the jury system in criminal or civil cases.  You have never heard of it.  No American lawyers understand it nor would they encourage it.  The Courts will surely be averse to it though it has never been stricken from the codified law (like that matters anymore).  No law school will teach it.  No agent of the state would wish to face it.  No right-minded person would assert the alternative. But, it is there.

There is (or was) a thing called Trial by Combat.

Trial by combat (also wager of battle, trial by battle or judicial duel) was a method of Germanic law to settle accusations in the absence of witnesses or a confession in which two parties in dispute fought in single combat; the winner of the fight was proclaimed to be right. In essence, it was a judicially sanctioned duel. It remained in use throughout the European Middle Ages, gradually disappearing in the course of the 16th century.

Wikipedia (May 27, 2015).

trial-by-combat-granger

(Fighting it out.  Google.)

Wikipedia says this was a Germanic legal tradition, which is true.  However, the custom was known to many other ancient cultures.  Also, it continued into the somewhat modern age.

The defense continued in regular practice into the Seventeenth and even Eighteenth Centuries.  The accused or defendant would assert or demand his right. The prosecutor or plaintiff or a chosen champion would then join the accused in singular combat.  This was to the death or to a submission – usually death.  I cannot imagine too many district attorneys, police officers, or offended ex-wives going along, willingly, with such strategy. Then again, I cannot see most fat, lazy Americans demanding such a right let alone conducting such as trial.

In 1774 an attempt was made in Parliament, partly in response to the Boston Tea Party, to abolish the practice.  This and all other reform efforts failed.  No bill or law has ever rescinded the ancient right.  The right was in place, part of the English Common Law, when the American colonies declared independence from the King.  Thus, the right remained available to Americans.  Mostly, such spectacles took form in gentlemanly duels – outside of the courts.  Alexander Hamilton participated in one of these with fatal consequences.

Still, no state or Congress has ever formally repealed the practice.  The courts have not definitively ruled on it either.  This is the case in old England as well as in America.

As recently as 2002 a demand for trial by combat was made in Britain.  In Suffolk a man made the demand as his defense in an administrative hearing concerning the local DMV. The magistrates in charge, deeming, him deranged at best, ignored him and fined him a small sum for failing to register (or de-register) his motorcycle.  No appeal was made.

You would likely never assert this right as a defense or alternative course of trial.  Nor would I.  However, if facing severe criminal charges and punishment, trial by combat might mean the difference between prison and a mental hospital.  Which seems better to you?

If, though, you should succeed in joining a wager of arms, you may count yourself among the fortunate, even mythical, few.  In a federal criminal matter you may consider yourself Fingolfin doing battle with Melkor himself.  May the honor and victory be yours.

Legal “Education”

12 Tuesday Mar 2013

Posted by perrinlovett in Legal/Political Columns

≈ 6 Comments

Tags

ABA, bar exam, case-law, changing the world, Constitution, education, Gospel, John Adams, judges, law, law school, lawyer jokes, lies, LSAT, Max Tucker, Muddling Through College, Natural Law, Neal Boortz, profession, racket, Scotland, Thomas Jefferson, trade, U.S. News and World Report, unprepared

This post follows Muddling Through College.  It is intended as a truthful assessment of what life in law school is like and the relationship between legal education and the practice of law and society in general.  As with my undergraduate article, I realize that my experience is dated by a good decade.  Actually, it’s been a pretty bad decade – especially for the legal industry.  Therefore, again, I have tried to incorporate “modern” materials herein as well.

I once heard attorney-turned radio talk show host, Neal Boortz state that when he began practice law in the early 1970s, the law was still a profession.  He then said when he left the law in the early 1990s to pursue radio full-time, the law had degenerated into a trade.  Several times I recall him saying the happiest day of his life was the day he put his status with the Georgia State Bar in the inactive category.  I will update his cycle now – the law has further degenerated into a racket.

The average attorney is greeted by society with all the warmth and affection people normally reserve for a visiting termite.  I hear lawyer jokes every week.  Most are pretty damn funny.  I am one of the few attorneys not offended by these jokes.  Most attorneys do get offended even if they don’t show it.  The reason is that most know the jokes have a great basis in truth and they don’t want to admit the facts.

Mr. Boortz once said, speaking of attorneys, “No other group has done more to help and to damage our society.”  He’s right.  Lawyers were behind the Revolution, the Declaration of Independence, The Constitution, the civil rights movement, and numerous other causes for freedom.  You never hear lawyer jokes in a criminal court.  In a jail holding area or cell block, we are greeted like rock stars.  However, pick any oppressive, illegal, dishonest, or otherwise unsavory law, business, or relationship and you’ll find lawyer DNA all over it.  As a judge I once clerked for said, “It’s amazing how bad most attorneys are.”

The bad begins in law school.  There are about 200 law schools in America which have received the ABA’s seal of approval.  There are more which operate by special rules within their respective states.  U.S. News and World Report ranks and categorizes law schools every year based on a set of semi-relevant criteria.  Schools fight hard to place high on the list.  I don’t see the point.  Judging by the performance of their graduates, all the schools seem equally bad.

prof law

(This cat never practiced law and won’t teach you anything.  Google Images.)

Max “I Hope They Serve Beer in Hell” Tucker wrote an awesome article, http://lewrockwell.com/orig14/max-t1.1.1.html, on reasons NOT to attend law school.  Read it!  I agree with every single thing he said.  By the way, I fell under the Want To Change the World category.  I learned its damn near impossible to change a neighborhood, let alone the world.  And, most people don’t want any change – they enjoy their serfdom.

After four (or 6, 8, etc.) years in college one must score decently on the LSAT and submit a rigorous application in order to gain entry into even the lowest ranking law school.  Once there, one is suddenly trust into an environment that eerily resembles high school.  That’s the law school effect, everyone reverts to teenager-ish behavior and attitudes.  Nothing is actually taught in law school except how to look up information and fill out forms.  You can learn a thing or two in a specialized elective class but nothing therein will appear on the dreaded bar exam of any state.  Given the sad state of the profession, dependant on the exam’s function as a brutal hazing to enter the fraternity, you would think law professors would concentrate on the subjects covered by the bar and the methodology employed for the tests (Byzantine).  They do not.  In fact, after graduating you MUST take a private prep course in order to have any chance of passing the test.  I theorize that any well-educated person could take such a class and pass the bar.  I was not supposed to tell you that.

The majority of instructional time is instead devoted to instilling reverence for the system.  Courts, judges, and their opinions (case-law) are sold as the Gospel.  Rebels like me are interested in core concepts behind the law and the betterment of humanity.  The average student simply accepts the drivel and becomes a system cog.  As I have stated elsewhere, the average lawyer does not know and does not care why we have law or where the law comes from.  Natural Law may as well be officially forbidden by the ABA.

Once one passes the bar and gets that first legal job another enormous short-coming becomes alarmingly clear.  Law schools do not prepare anyone to practice law.  A friend of mine, a Federal Magistrate Judge once asked me, “Remember when you got out, and knew nothing?”  New attorneys are thrown to the wolves.  Half can’t hack it; I think 50% is the current percentage who leave the law sooner than later.  The other 50% live in a nightmarish state, dreaming of getting out. 

In the old days, and in a few foreign countries (Scotland comes to mind), students of the law would apprentice with an existing attorney or law firm for a number of years in order to prepare for actually practicing law.  They would simultaneously “read the law” on their own to gain a full understanding of core concepts.  After satisfying their mentors, the apprentices would be admitted as attorneys, with or without examination.  That’s how Thomas Jefferson, John Adams, Abradamn Lincoln and Cicero did it.  Today, only California, Maine, Vermont, Virginia, and Washington still allow “reading” and I imagine it is discouraged.  This process denies law schools reason to exist and deprives budding young lawyers of their $100,000+ school loan debts.  Students might also emerge ready to practice if allowed to study under a competent attorney.  I’m not supposed to tell you any of this.

I have applied for several positions, academic and administrative, at a variety of law schools of late.  I am hoping my experience will give me an advantage.  One would think it was.  I make a particular point to explain that I want to help as many young people as possible actually prepare for the racket….er…profession.  Oddly, many law professors have never practiced law a day in their lives, many aren’t even members of a bar.  It makes sense, in a way, as law school has absolutely nothing to do with practicing.  That evil bar exam (truly a horror worthy to justify the myths) has nothing to do with school or practice either.  Like the schooling, it’s just there – an unavoidable obstacle to tackle.

Law students become attorneys disillusioned, in debt, unprepared, and in today’s market, with slim job prospects.  Most new attorneys today, who can find a job, earn less than $60,000 per year.  The big bucks go to the elite few who land jobs with major law firms.  At those firms, newbies (with all the problems I mentioned) can start at $150,000 or better.  For that pay, they have to “bill” 2500 hours a year.  Billing 2500 means working 4000; that means working 80-100 hour weeks, every week, for about $30-$40 per hour.  Tucker gives examples of jobs that pay that well, don’t require all the time and hassle, and don’t necessitate wasting 3 years in law school.  Remember, those are the best of the best jobs.  Most big firm associates wash out quickly or else end up in mental institutions or under bridges.

lawyer

(Welcome aboard, young associate.  Google Images.)

Ponder what I have written here if you think you want to join the lawyer club.  Some people are meant to be attorneys and will do well at their chosen work.  Most will drudge on miserably until the retire, die, or go nuts.  Some, like me get out.  Well, I’m trying to get out.  Leaving the law can be like leaving a street gang.  You have to walk a gauntlet to exit.  Please pray I make it.  As for you, avoid the whole racket if you can.

PS: I issue a challenge to all attorneys and law school faculties!  Change the system!  Concentrate on the theory and the practice of the law itself and dispense with the case worship, the obsolete mysteries, and the false illusions of nobility.  For you, read Alan Watson’s The Shame of American Legal Education, 2d ed. (Vandeplas Publishing, 2006).  Watson, of Scottish legal training, nails the problems of the American system.  Let’s change it.

Perrin Lovett

perrinlovett@gmail.com

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