So, Anon # 2 in comments to the last post accused me of having a "narrow view" about our system. I tell you what. I will immediately retire from the practice of law and sign over everything I own to the first person who can point to the word "victim" in the Bill of Rights. It is not there. Granted, it is nonsensically included in the Alaska Constitution. There is an inherent conflict between the the presumption of innocence and "victims" having the same rights as an accused. That issue has yet to be hashed out in the Alaska Courts. The men that sat in this building (Independence Hall) when they wrote the Constitution were not concerned with "victims" or the fact that not all cops are bullies and thugs (although most are...I think it is about time to dedicate a post again to cops killing and abusing again...soon). Indeed the whole system is supposed to protect those accused of crime against the power of the Government. Who do you think the "people" are in the 4th Amendment? Who does search and seizure apply to? Who does "held to answer" apply to in the Fifth Amendment? What about double jeopardy? Not being compelled to be a witness? Due Process? In the Sixth Amendment who does a speedy and public trial right belong to? The right to an impartial jury? To be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense? In the Eighth Amendment what about the right to bail nor can cruel and unusual punishments be inflicted? Go even further. Look at the presumption of innocence and the requirement of proof beyond a reasonable doubt that have been read into the Constitution. Who does that protect? The point is that my "narrow view" is the correct view at law. I am often frustrated about the fact that I am usually the only one in the courtroom who remembers that. Let's face it: only in a very, very, very small percentage of my cases is there a "victim". But in every one of my cases there is a poor person who is facing the might of the Government. Narrow view indeed. Anon #2 you would be wise to study the history of this country and the Constitution before you accuse me of having a narrow view.

P.S. We had a 6.1 earthquake this morning. It was fun being shaken out of bed!

Comments

Anonymous said…
Great piece by Garrison Keillor
on the new prez, "It was the most genuine, spontaneous, universal moment of the day. It was like watching the ice go out on the river."

As someone that waits for breakup the ice out is fortelling.

http://www.salon.com/opinion/keillor/2009/01/21/inauguration/
josh said…
http://gigapan.org/viewGigapanFullscreen.php?auth=033ef14483ee899496648c2b4b06233c
Anonymous said…
you live in a delusion. A rancid delusion. It's OK though, you provide a needed service for this country.
Anonymous said…
Only because you are in Kenai where the DAs are too zelous do you have this narrow view. You even once considered working for the state remember?! {WHAT - why would you ever even think to work for the evil "man"] And then you could strive to uphold justice, fairness and equality for all as a DA just like you do now. Anywhere else, where DAs do their job - you would realize that most PD clients are guilty as hell, no ifs ands or butts. And no amount of flag waiving, history preaching rants will change that. I know my history just like you do, but you have to at least tip the hat a little to the other side of the balance. True believers on either side get nowhere.
josh said…
Ben knows that most of his clients are guilty. But, it's not as easy as following your gut, and sometimes the state takes shortcuts to achieve what their gut tells them is the just result.

We all know the rules (hat tip Alan Dershowitz):

THE CRIMINAL JUSTICE GAME

BASIC FACT-Eyewitnesses make mistakes.

BASIC FACT-Snitches lie.

BASIC FACT-Confessions are coerced and fabricated.

BASIC FACT-Sometimes defense lawyers sleep during trials.

BASIC FACT-Class, income and race matter.

BUT THERE ARE RULES OF THE CRIMINAL JUSTICE GAME

And here they are.

Rule 1. Almost all criminal defendants are, in fact, guilty.

Rule 2. All criminal defense lawyers, prosecutors, and judges understand, believe, and agree that almost all criminal defendants are, in fact, guilty

Rule 3. It is easier to convict guilty defendants by violating the Constitution than by complying with it, and in some cases, it is impossible to convict guilty defendants without violating the Constitution.

Rule 4. Almost all police lie about whether they violated the Constitution in order to convict defendants they believe to be guilty.

Rule 5. Many prosecutors implicitly encourage police obey Rule 4.

Rule 6. All prosecutors, judges, and defense lawyers are aware of Rule 4 and Rule 5.

Rule 7. All trial judges are aware of Rules 6 and 5 and 4.

Rule 8. Most trial judges pretend to believe police officers they know are, in fact, lying, in order to convict defendants they think may be guilty.

Rule 9. Most trial judges pretend to disbelieve defendants about whether their constitutional rights have been violated, even when the judges are, in fact, convinced that the defendants, whom they believe to be guilty, are telling the truth.

Rule 10. All appellate judges are aware of Rules 9 and 8.

Rule 11. Most appellate judges pretend to believe trial judges who pretended to believe lying police officers and who pretended to disbelieve truthful defendants.

Rule 12. Most judges and prosecutors would not knowingly convict a defendant who they believe to be innocent of the crime charged.

Rule 13. Rule 12 does not apply to child molesters, gang bangers, organized crime members, drug dealers, career criminals, potential informants or now “terrorists.”

Rule 14. Some appellate judges start with a “smell” test. If their nose suggests an innocent person might have been convicted, they lean over backward to find a technical reason for reversal. But if their nose persuades them that the defendant is guilty, they will stretch the law, distort the facts, and do legal contortions to affirm the conviction—usually on the ground that any error was "harmless." The judge’s nose is usually keener for persons with whom they share the same color and class of nose, especially for police.

Rule 15. Some judges convict everyone and sort it out at sentencing.

Rule 16. Few want justice.

Rule 17. Even fewer care whether justice is done.

Rule 18. “Thank you, your Honor" is a monstrous and necessary lie that confirms the speaker's comprehension of these rules.
Josh: I was about to launch into it and then I saw what you wrote. I can't say it any better of course. Yeah Anon. After 10 years of practice I think that most of my clients are "innocent". THAT is why I do this job. And it has nothing to do with Kenai. I have practiced in B.C. I have practiced in California. I know, or have spoken to, criminal defense lawyers from all over the place. We all do the job for the same reason...and it is not because we think that our clients are "innocent". If it is a "rancid delusion" that the Bill of Rights was set up to protect the accused from the Government, than I am as rotten as hell.
Anonymous said…
WhOA,

Aren't you a Canadian? What's with all the hate for the regular people that ARE VICTIMS? What do you mean a very small percent of your cases have victims??? What kind of cases do you represent? I'm shocked that anyone in the proffession you are in only sees one side. It is very hard to take someone seriously who cannot even acknowledge another's viewpoint. Both sides perform a valuable and neccessary service and it is too easy for both to blame the other for being a bully or thug as you put it. What about the other view that defense attorneys are all slimy and will be completely unethical in order to win at all costs? Both are stereotypes correct. And there are reasons that both stereotypes exist, also true.

A couple of lines:
I will support the Constitution of the United States AND THE CONSTITUTION OF THE STATE OF ALASKA:

I will adhere to the rules of professional conduct in my dealings...WITH ALL OTHER PERSONS:

I will be truthful and HONORABLE in the causes...and will NEVER seek to mislead the judge or jury...:

I will be candid, fair and COURTEOUS before the court...and will advance no fact prejudicial to the honor or reputation of a party or witness unless I am required...

You took this oath right???
Anonymous said…
Your life must really be a bitter struggle...
A bitter struggle? Of course it is. Because people say things like defense lawyers should look at both sides. In analyzing a case that IS appropriate. But I am an advocate and I am required to be zealous. I can't say that I have any sympathy for many so called "victims". In maybe one case in a hundred, if that, there is a true innocent victim that deserves sympathy. I understand that DA's have their jobs. But am I really the last one left who could live with less cops? Am I the last one left who sees most cops as bullies and thugs? Thankfully, no. But yes of course it is a bitter struggle. This country, like most, is filled with morons.
P.S. the fact that is is "hard to take me seriously" becasue I refuse to bow down and admit that government and the cops are a good thing, shows how little you understand about being a defense lawyer. As far as I'm concerned, cops should stay in their station unless there is a missing kid or a dead body or something of that magnitude.
And finally, what kind of cases do I do? Well let's see. Drug possession is huge (and was even bigger in CA). Nope, no victims. DUI. Nope, no victim. The few cases I have had where an innocent driver was killed qualifies as a case with a true victim. I don't include a passenger who was drinking and KNEW the driver was too as a 'true' victim. Property crimes. Yes, there is a victim there. However, most of those crimes are relatively petty and many are against business. Do I have sympathy for Fred Meyer when a junkie steals $40 worth of meat? Well it doesn't keep me up at night. Assaults are big. You would think there is a victim there. Not true. Many, if not most of my cases, involve a complicit 'victim'. Many, if not most, involve intoxicated people and the person who either gets the worst of it or gets to the phone first is the 'victim'. I'd say that pretty much covers 98% of my cases. I think people watch the news and think that all I represent are child killers and serial rapists. I guess my definition of victim only includes a truly innocent person who was hurt. Thankfully, that is, as I've said, a very, very small percentage of my cases and always has been.
Anonymous said…
You kind of make me want to steal your boat or rhino since you say you won't call the cops anyway... And of course you'll zealously represent me if they catch me!
Anonymous said…
My buddies win the bet that said you'd threaten to kill me!! You are pretty predictable :( My money was on that you'd say the cops would be in on the theft or somthing like that....
Anonymous said…
I beleive in AK that you are not authorized to use deadly force to protect a property interest. The evil cops may come and get you for that! (of course that's if they ever found the body etc. etc. right?)

Did you come here from Canada to live with all the morons as you put it or for the less restrictive gun rights?
Nah, I don't think all cops are on the take. In fact I bet very few are. Predictable? Thanks. When you threaten my property you SHOULD expect a shotgun in your face. Actually Anon, using deadly force to defend property may be allowed, depending on the facts. That assumes of course that it was necessary to pull the trigger and not just use the shotgun to detain the person. For example, I could use deadly force to prevent a burglary of an occupied building. So if Anon tried to get the keys, well, kaboom. As well AS 11.81.350would allow me to use deadly force to prevent a 'carjacking'. So if I was in the Rhino and Anon tried to steal it, well then poof! His head would be red mist. Or if Kadee was in it and he tried to take it. Poof. Once again, the dogs would be licking him up. All in all it changes nothing. Love the cops all you want. But don't expect me to. I came to the US for a number of reasons. There are probably just as many morons in Canada. I just seem to be attracting a lot to the blog lately.
Dan said…
I hate victims too.

I don't think the Victims' Rights Act and its accompanying State Constitutional Amendment are valid for nearly identical reasons as you do.

Does this make you feel better, Ben?

WE HAVE COMMON GROUND.
fdr said…
Ben, I have to agree w/ the assesment that you have a narrow view. I agree w/ alot of your rhetoric about the danger of govnt. But their is an opposite extreme to fear as well....anarchy. Do you really think that if there wasn't that "thin blue line," your family would be safe when you were not around to protect them? Law enforcement is simply the people banding together to protect themselves from those who would harm the defenseless.

I spent 20 years in the Buffalo Police Dept., and though of course I knew some rogue cops, 95% of the ones I worked with, would treat your family as they would want their own to be treated.

Dude, its pretty silly to make a straw man out of someone, and pretend that they are the devil incarnate just becauuse they are on the opposite side of the courtroom from you. C'mon, you're smarter than that.

Freedom vs. security is a balance that mankind has had to struggle w/ since the dawn of civilization. You want both like the rest of us do....

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