Hey! We’re Not That Free!

 

shutterstock_212683828In a post below, member Mike Rapkoch writes:

Both the criminal and the civil law are ultimately controlled by private citizens who sit on juries and adjudicate cases without coercion.

I take issue with this. It’s a nice fairy tale, but it is not the way our system works, at least not any more. It may be the design, but it is no longer the reality. Very few cases actually get to a jury, and that is by design of the government. According to Conrad Black:

Eight to 10 percent of federal and state cases are dismissed because of a technical error or because a defendant chooses to cooperate, but of the rest, 97 percent of federal cases and about 95 percent of state cases are resolved by plea bargains, and, in practice, these are almost invariably dictated by the prosecutor.

Prosecutors throw the book at the accused, and by that I mean charge everything the evidence — real or imagined — makes even remotely conceivable. With the accused facing so many charges and potential consecutive sentences, it becomes an issue of rational self interest to plead out for a much reduced crime, regardless of guilt.

Consider also Charles Koch’s opinion on the matter:

A federal grand jury indicted his company on 97 felonies involving alleged environmental crimes at an oil refinery.

Prosecutors dropped all but one of the charges six years later, after the company spent tens of millions of dollars defending itself.

Ultimately, Koch Petroleum Group agreed to pay a $10 million settlement.

“It was a really, really torturous experience,” said Mark Holden, Koch’s chief counsel. “We learned first-hand what happens when anyone gets into the criminal justice system.”

Holden said Charles Koch wondered afterward “how the little guy who doesn’t have Koch’s resources deals with prosecutions like that.” (emphasis added)

Leftists have a point when they whine and moan about the justice system being rigged. They come to the wrong solution — more government is not the correction for too powerful a government — but the problem they identify is real.

With the absurd proliferation of criminal statutes being drafted by legislatures at every level, it’s only a matter of crossing the wrong government official before one finds himself in the state’s crosshairs. If an agent of the government wants to take you, they can. They will find something. Once they do, they will exert the whole leverage of the government to bend you to their will. You can stand against them and win, but they will break you financially, socially, emotionally, and — possibly — even spiritually. Or, you can plead out.

Either way the government wins. Living with that hanging over your head is not freedom.

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  1. user_428379 Thatcher
    user_428379
    @AlSparks

    Mark Steyn has the same argument.  He asserts that the U.S. courts are much worse than the other English speaking countries, and he’s litigated in Canada and Australia as well as the U.S.

    • #1
  2. user_554634 Moderator
    user_554634
    @MikeRapkoch

    I have tried criminal cases in the Federal Courts, as well as state courts. While the Fedralization of the criminal law is a problem, from my experience the people who are “forced” to plea bargain are in that position because they are guilty.

    I handled a bunch of Lacey Act claims, one of the statutes to which Mr. Silverman points. These cases are almost never prosecuted against one time offenders. For example, when a hunter poaches one deer and takes it across state lines, he is subject to a Lacey Act charge, but the feds almost always leave it to states to deal with under their own fish and game laws. The targets of federal charges tend to be repeat offenders, most of whom are in the business of helping individuals get away with such crimes.

    Do prosecutors charge crimes they cannot prove, or engage in political harassment? Sure. But such matters are subject to ethical and practical limitations.

    Regardless of how one feels about requirements that the state provide counsel to the indigent, no accused person must defend himself.

    Look, I’m not saying that things are hunky dorey. But come on. Few of us live with a heavy yoke around our necks. Most importantly we can fight back.

    Most of us go about our days without a single thought about what the government might do. That, to me, is a blessing for which we ought to be thankful. We could, I suppose, walk around in a pall. But I do not see the virtue in that.

    • #2
  3. The King Prawn Inactive
    The King Prawn
    @TheKingPrawn

    Mike Rapkoch: Most of us go about our days without a single thought about what the government might do. That, to me, is a blessing for which we ought to be thankful.

    There is great wisdom in this. However, it only takes one go-round with the law to make such gratitude a Herculean feat. After a trip to that particular circus it becomes near impossible to go a day without a single thought about what government might do.

    Locke wrote:

    TO understand political power right, and derive it from its original, we must consider, what state all men are naturally in, and that is, a state of perfect freedom to order their actions, and dispose of their possessions and persons, as they think fit, within the bounds of the law of nature, without asking leave, or depending upon the will of any other man.

    I think we’ve come too far from this understanding of liberty. We must ask leave and depend on the will of far too many arbitrary (and often capricious) government functionaries. Of course, that is an entirely separate matter from the criminal/civil justice systems.

    • #3
  4. skipsul Inactive
    skipsul
    @skipsul

    You ought to try litigating in the patent realm.  The patent office has granted patents on an absurd number of things lately, challenging them is expensive and arbitrary.  We fought and won to overturn a competitor’s patent on its merits and won the initial inquiry, won the appeal, won the appeal of the appeal, then had the whole thing tossed out without comment and barring us from any further appeals, comments, findings, etc.  Almost like someone got paid off.  All this for a patent where we could prove that prior art existed in abundance.

    • #4
  5. Byron Horatio Inactive
    Byron Horatio
    @ByronHoratio

    As an avid shooter, collector, and someone who has carried a sidearm as a private citizen for four years, the past year has really made me consider spending a small amount of money for self-defense insurance in case I were ever were compelled to use my gun in self-defense.

    Even when someone who is completely justified under the law in using lethal force, an over zealous prosecutor or a hostile media (if you defend against the “wrong” kind of person) can break people financially. There are completely innocent, decent citizens who are broke and unemployed because they exercised perfectly legal and judicious force in self-defense.

    As Mark Steyn says, “the process is the punishment.” Even if you’re as sinless as a saint, a lengthy trial will destroy your family and virtually everything you’ve worked for.

    • #5
  6. The King Prawn Inactive
    The King Prawn
    @TheKingPrawn

    Byron Horatio: As Mark Steyn says, “the process is the punishment.” Even if you’re as sinless as a saint, a lengthy trial will destroy your family and virtually everything you’ve worked for.

    Just so. Only by the grace of God is my family whole and my life restored to some semblance of normalcy after the last year.

    • #6
  7. Devereaux Inactive
    Devereaux
    @Devereaux

    KP – good on you! I totally agree with your stand. I find Mike to be wholly optomistic, a sense I do not share. I have personally watched a couple of my friends destroyed by the government. They were “investigated” – and it simply was left hanging over their head with no resolution, primarily because there was nothing there. Yet the government refused to close the investigation. In the end they both could not stand it any longer and plea bargained it to conclusion, just to get out. And I KNOW they were innocent.

    If you want a functional definition of torture, consider having a government agency begin an investigation on groundless points. Government, like cops, simply REFUSE to “lose”. Doesn’t matter if they are right or wrong, they will not lose – ever.

    There was, and still is, a mechanism for correction of this. Jury nullification. It was designed as a means of the people having the ultimate control over government. Back in the founding times, courts routinely tossed out crown arrests on what were considered bogus laws. So, had Eric Garner gone to one such jury, it would have found the whole tax system onerous and found him Not Guilty. But SCOTUS decided that judges no longer needed to inform juries of this right. The right never went away – it was only not talked about by the government. And in the 30 or 40 years since that case, the whole concept has almost disappeared, to surface only as some “far right idiocy”. But it is the right of juries. And with its disappearance a little more of our freedom has disappeared. We become more and more dependent on “lawyers” as the volume of law increases exponentially. Laws now are of such complexity that the average citizen hardly knows what it is, nor what he needs to do to avoid it. Meanwhile government keeps taking more and more “exceptions” – all in the name of our “safety” (such as the TSA – who in 13 years have found no better way to secure airline passengers than to disarm regular citizens and trample our 4th amendment rights because, well, because they are too stupid to figure out a better way).

    • #7
  8. Fake John Galt Coolidge
    Fake John Galt
    @FakeJohnJaneGalt

    I am sorry, my experience with the legal system especially the criminal aspect has lead me to believe it is a total joke. It cares nothing about right, or truth or justice and lives only to feed itself and the careers of those that work in it. If you have the money you can either buy the result you want or influence the verdict to your favor so there is little difference. It chews up people’s lives, and only enriches those that work for it. The sooner people understand that the better chance they have to survive contact with it.

    • #8
  9. Byron Horatio Inactive
    Byron Horatio
    @ByronHoratio

    KP,

    Have you had a chance to ever read Kafka’s “The Trial”?

    • #9
  10. The King Prawn Inactive
    The King Prawn
    @TheKingPrawn

    Byron Horatio:KP,

    Have you had a chance to ever read Kafka’s “The Trial”?

    I have not. I may have to look into it.

    Devereaux: We become more and more dependent on “lawyers” as the volume of law increases exponentially. Laws now are of such complexity that the average citizen hardly knows what it is, nor what he needs to do to avoid it.

    My experience is that the lawyers, both prosecution and defense, are part of a machine, a system without heart, mind, or soul. It is designed to as efficiently and effectively as possible destroy those caught in its grasp. The lawyers themselves can be great people. We have many fine examples right here. But, it’s the system as the government has deformed it, not the system created by our founders, that keeps lawyer jokes a socially acceptable bigotry. For many like us who love the rule of law, the idea of justice, the system created by our founders to adjudicate charges rightly and fairly…the system we have today is enough to create despair. We look at it and loathe what it has become. Then we look at the vast majority of those caught up in it and know that our society has devolved to the point that we need this system as it is to deal with those we have created.

    • #10
  11. Devereaux Inactive
    Devereaux
    @Devereaux

    The King Prawn:

    Byron Horatio:KP,

    Have you had a chance to ever read Kafka’s “The Trial”?

    I have not. I may have to look into it.

    Devereaux: We become more and more dependent on “lawyers” as the volume of law increases exponentially. Laws now are of such complexity that the average citizen hardly knows what it is, nor what he needs to do to avoid it.

    My experience is that the lawyers, both prosecution and defense, are part of a machine, a system without heart, mind, or soul. It is designed to as efficiently and effectively as possible destroy those caught in its grasp. The lawyers themselves can be great people. We have many fine examples right here. But, it’s the system as the government has deformed it, not the system created by our founders, that keeps lawyer jokes a socially acceptable bigotry. For many like us who love the rule of law, the idea of justice, the system created by our founders to adjudicate charges rightly and fairly…the system we have today is enough to create despair. We look at it and loathe what it has become. Then we look at the vast majority of those caught up in it and know that our society has devolved to the point that we need this system as it is to deal with those we have created.

    Perhaps. But I wonder how the people would react to having the older system put back in place. There the guilty were punished, and no one looked back. Yes, on occasion, on rare occasion, the innocent were punished. But the laws were far simpler and clearer that whether or not you had committed a crime was far easier to determine. So it was easier to find guilt/innocence. AND it was much simpler to know when the government had exceeded its “brief” so to speak and find against it.

    15+ years ago I ended up serving as the foreman of a federal jury for a case on extortion. We followed the judge’s directions and found the defendant guilty. But one of my lasting sorrows was that I didn’t know enough to fight some of the obvious injustice of the case. I don’t believe the judge was either biased or of liberal tendency. But the jury as a whole came to the obvious conclusion that THE LEAST involved was the one being tried while the “government witnesses” were the real culprits. The defendant was merely not real bright and didn’t have a lot of exposure to the criminal “justice” system. Indeed, the judge came to speak with us afterward and as foreman I did manage to convey to her the jury’s overall sense that the defendant was really not that guilty, and that the other two should have been the ones tried. Hopefully she took that into account when she sentenced him later. I believe today I would have managed the jury’s deliberation better.

    • #11
  12. skipsul Inactive
    skipsul
    @skipsul

    The King Prawn: The King Prawn Byron Horatio:KP, Have you had a chance to ever read Kafka’s “The Trial”? I have not. I may have to look into it.

    You’ve already lived the synopsis of it.

    • #12
  13. skipsul Inactive
    skipsul
    @skipsul

    If anyone here, in running their own business, has fallen afoul of a government agency, you will understand how your freedom hangs by so many delicate threads.  2 cases come to mind from my father’s experience:

    1.  OSHA – a rogue inspector, working with a disgruntled employee, sprung a series of “surprise” inspections on his business.  The “complaint” each time turned out to be invalid, but the inspector then always “found” something else – each time he left having levied a huge fine.  Eventually this OSHA office was taken to court and the judge demanded OSHA name the complaining employee, OSHA not only refused, but continued to insist it had the right to instigate surprise inspections (they do NOT).  Took years to resolve.

    2.  The company started offering a 401k plan to employees.  This comes under heavy government oversight.  The company got dinged $50k a month for not filing some document or other, but nowhere in the regulations at the time was this form ever mentioned.  18 months just to get these fines waived, govt. refused to reimburse legal expenses.

    I’ve got lots of other horror stories, both personal and business related, and this doesn’t even touch the criminal law process.

    • #13
  14. civil westman Inactive
    civil westman
    @user_646399

    “The use of violence and intimidation in pursuit of political aims” is the definition of terrorism. Unfortunately, this definition applies in significant measure to the current ethos of governance of this, the former land of the free. It has become anything but, “with the consent of the governed.” Investigated = ruined. Don’t stand out in exercising your illusory freedom.

    • #14
  15. Byron Horatio Inactive
    Byron Horatio
    @ByronHoratio

    OSHA used to stake out the occasional job site I worked in college as a painter. The company was once fined a considerable amount for falling afoul of some regulation about having to be tied into a roof we were working on. The solution apparently being to hammer anchor points into a customer’s roof. The OSHA inspector in her wisdom assured our boss that we only had to do it on roofs more than 5 feet off the ground. He responded that that we’d be limited to only climbing on doghouses and birdhouses.

    There was such a swaggering arrogance with those dweebs. They’d park in a non-descript vehicle and secretly video tape infractions on the the job sites. All part of the poisonous fetishization where ever government employee imagined themselves to be a cop. On one occasion where I spotted them spying on us, I brought out all the workers on the job site and we stood across the street in turn video taping them video taping us.

    Since I’ve left, the company doesn’t have its employees wear identifying work shirts or have any information on the vehicles. All part of a plausible deniability of being affiliated with the company that’s in violation of some Byzantine regulation.

    • #15
  16. Z in MT Member
    Z in MT
    @ZinMT

    skipsul,
    Did you bring the patent case, or did the other party? If you did, why would you ever do that? Patents are just a license to sue, you would have been better off just infringing on the patent and waiting for the lawsuit that may have never come. Then the other party would have to prove that you are infringing rather than you proving the patent invalid.

    • #16
  17. skipsul Inactive
    skipsul
    @skipsul

    Z in MT:skipsul, Did you bring the patent case, or did the other party? If you did, why would you ever do that? Patents are just a license to sue, you would have been better off just infringing on the patent and waiting for the lawsuit that may have never come. Then the other party would have to prove that you are infringing rather than you proving the patent invalid.

    They sued us pre-emptively for a product we had not sold yet, at that point we challenged the validity of the product.  Here are the issues involved:

    1.  Damages for patent violations are treble – meaning we would have had to pay $3.00 for every $1.00 in sales (plus legal expenses) had we gone ahead with the product then lost in court.  Unacceptable financial exposure.

    2.  We only challenged the patent after they refused to drop a lawsuit for a product we had never actually sold.  We build a lengthy dossier (thousands of pages) of prior art.

    3.  The competition was based in California, and because we have California customers they picked CA as their venue.  No sane company would ever adjudicate anything in California.

    4.  We found ways around their patent anyway and undercut the heck out of their pricing.

    • #17
  18. Bryan G. Stephens Thatcher
    Bryan G. Stephens
    @BryanGStephens

    And yet, there are thugs roaming the streets that need to be locked up for good.

    We are, in the posts above, conflating civil and criminal cases as well. I think those systems need to be looked at differently.

    • #18
  19. The King Prawn Inactive
    The King Prawn
    @TheKingPrawn

    We are, in the posts above, conflating civil and criminal cases as well. I think those systems need to be looked at differently.

    Both are means by which government exerts extraordinary pressure on the liberty of individual citizens and any associations they may form. We remain free so long as we avert our eyes, keep our heads down, and dare not meet the gaze of those watching over us. Should “the eye” focus in our direction then liberty evaporates instantly in its heat.

    Our system rights itself in the end. However, between the moment one is suspected and the conclusion of the affair is where the ruin occurs, regardless of the outcome.

    • #19
  20. user_1938 Inactive
    user_1938
    @AaronMiller

    Avram: He is right and he is right? They can’t both be right.

    Tevye: And you are also right.

    I agree with both Mike and Prawn.

    In many ways, modern Americans are less free in their daily lives than 18th-century peasants. Every product in your home and office had to be approved by government before it reached you. Every transaction is taxed more than once. Odds are, your income has been taxed at least twice because of corporate taxes, before other taxes come into play. Mark Steyn, Kevin Williamson, and others provide many more examples in their books.

    It’s a bit misleading to claim that Americans generally ignore government in their daily lives. Rather, we heed regulations and complain about political problems without directly thinking of them as such. Politicians decide what kinds of light bulbs we are allowed, but we forget about it. They decide what “public” lands we may roam; but that’s normal, right? We ignore government by accepting its intrusions.

    Still, life is better for most citizens than they would experience in most other countries. People still flee to America. As the fiction of the American dollar is propped up by the absence of alternative currencies, so the standard of American freedom remains attractive because our political mistakes are repeated elsewhere in the world.

    Perhaps the most accurate statement would be that America is still free for most. Our government can enact any violation so long as it does so to only a few citizens at a time. We remain “a free nation” because our politicians and bureaucrats cannot openly abuse whomever and whenever they wish, but they do destroy scattered individuals every single day.

    (That’s bleaker and less balanced than I intended, but I don’t have time to edit now. Maybe later.)

    • #20
  21. Instugator Thatcher
    Instugator
    @Instugator

    How does one beat a Patent Troll – just go around.

    @Skipsul – Thank you for making my day by beating a Patent Troll.

    • #21
  22. Bryan G. Stephens Thatcher
    Bryan G. Stephens
    @BryanGStephens

    Government regulations on many things are something the voters want. Life is more complex in 2015 that it was in 1815.

    I know Libertarians want no government in the licensing of Doctors. I got to say, I am all for it. After all, I don’t want a trip to the Doctor to feel as bad as a trip to the auto repair place. I don’t know enough to know if someone is good or not. Used to be a lot of outright quacks.

    Now, is that a limit on my freedom? Yep. Do I want it? Yep. I think it increases the quality of my life.

    I do not think this stuff is easy, cut and dried, or measurable on a single scale of Not Free —————————————Free. There are many variables. In some areas, I think we are too far over.

    TKP, you have had a horrible grind that nearly destroyed your family. That was wrong. In 1915, someone that was molested would have no place to turn. That was wrong too. Politics are about where to draw the lines, and we tend to go one way or the other.

    As I have said before when “we are less free than in the past” comes up, it depends. I have a good friend who is a Black Man living in Atlanta, GA. In 2015, we can sit side by side at a bar, use the same bathrooms, and the same drinking fountains. I believe that he is more free in 2015 than his ancestors in 1950 Atlanta. Clearly, he is more free than any ancestors in 1815 Georgia. Come to think of it, as a white man, I am free to treat him like a full human being too. In fact, we are dangerously moving towards a world where I’d better, or I might get into trouble for “hate speech”. There is that swing again.

    I am clearly not happy about a number of things that happen in America in 2015. There are many things I am happy about. It is a mixed bag.

    But to say, we are not that free, I ask, in comparison to what people at what time?

    • #22
  23. user_554634 Moderator
    user_554634
    @MikeRapkoch

    Look, I would never say that things are all hunky dunky. In fact, I pointed out that we have a fight on our hands. But we are not yet bound and gagged. I live in a quiet neighborhood surrounded by people who just go about their lives without giving a moment of thought to the government.

    As for the legal system, there is no question that the explosion of federal law (and state too) isn’t a serious problem. But that can be rolled back if we have the will to do so. Please see my post where I note this.

    As for the jury system, as I explained in one of my responsive comments, it is far more efficient than is generally believed. I tried a case some years back in which the court submitted 175 jury instructions on about the same number of arcane issues. The jury was out for 2 days, and the verdict reflected that they had systematically analyzed the facts under the law. I was known as a guy who would take sure losers to trial–and I lost many. I take pride in my losses, and comfort in knowing that juries are not capricious. It’s a matter of perspective. A lot of my clients were angry at the verdicts, sure that the jury was out to get them. It was not true.

    The civil and criminal systems differ drastically. Juries, however, tend to do the right thing in both systems.

    My reasons for writing my post are many, but mostly because, after a rant I put up a few weeks ago, I had to pause and reflect on the fact that we are still blessed with enormous freedom. Charles Krauthammer wrote an article after the 2008 election entitled “Decline is a Choice.” That’s ultimately the issue. We still have a choice. That is not true in most of the world. Consider Europe and the European Union. That august body has weaseled its way into everything, and seems hell bent on destroying nations. It’s almost impossible to fight back. That, however, was a choice. We’re still free enough to choose otherwise.

    As a pessimist I often fall to quickly for my own rhetoric. Corrective action is often needed.

    • #23
  24. Devereaux Inactive
    Devereaux
    @Devereaux

    Mike #29 –

    Peerhaps it’s a choice – theoretically. ?But who do we have making the choices. ?Are these the Americans we knew. ?Do they actually have any serious sense of how much trouble they (and we) are in. Look at the 2012 election. But any rational measure Obama should have been handed his coat. Yet he not only won, but by a decent margin.

    ?And who did we have to choose among. Mitt has admitted that he really didn’t think he was going to win. Good of him to do us the favour of running. ?Who do we have to choose from now.

    When Lincoln was elected, there didn’t seem to be a way to keep the union together. But he was elected to solve a different problem – to resolve slavery’s spread. He did just that, and there was no doubt that would do that. To the degree that the South in a fit of pique left the union.

    So it’s nice to say, “if we have the will” but the reality is that there doesn’t seem to be much will about, and when there is (Obamacare for example), the ruling bureacracy simply disregards it. Even your courts.

    Balance is overvalued. “Cry ‘Havoc!’ and let slip the dogs of war!”

    • #24
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