The Parable of the Knife

With the President claiming, and Congress going out of its way to affirm, the executive’s authority to detain and even kill U.S. citizens without due process, it’s difficult to imagine what more is needed to convince those who doubt that tyranny is a real danger in America.

Theoretically, the courts might stand in the way of despotism, but the courts don’t have the power either of the purse or of the gun, and a justice or two can be disappeared if necessary.

Theoretically, an America in which the President can order executions and unlimited detentions is different than a dictatorship because we elect the President. But our connection to the choosing of the President is tenuous at best, and none of us can say with any authority that his vote has even been counted. Besides, the process of electing a President is quaint and antiquated, and can be eliminated in the interest of security. Changes will be made after the Reichstag burns. 

(Has there ever been a republic that has fallen into despotism without some argument that it is necessary to “save” the republic?)

Some people trust the President to do the right thing. These people are not students of history, either recent or distant. Not only has the present administration lied to us and trampled our rights in the name of safety, but its predecessor did as well; moreover, the Founders recognized that the tendency of government is to seize more power at the expense of liberty. The Constitution was designed as a leash on this tendency, but the Founders didn’t contemplate that the Constitution would work forever, and they have been proven correct: we are less free, the Bill of Rights means less, every year.

This post is not for those who think that an American dictatorship is an impossibility; nor is it for those who think that an America dictatorship is an impossibility in our lifetime.

This post is not for those who think that American citizens don’t have the responsibility to try to prevent that happening; nor is it for those who think that violence is not an appropriate response to tyranny.

This post is for those who recognize that there is some threat (however small) of an American dictatorship in our lifetime, that it is the responsibility of the People to try to prevent that, and that violence may be appropriate to do so, but who fear that the sort of weapons still legally available to us would not be up to the task.

Here is what I mean by “not up to the task” (not that Evan and Scott agree with the proposition that violence in defense of liberty might be necessary):

Here is The Parable of the Knife:

A martial-arts instructor was training a mixed class of students. One was a large man who had fought competitively. Another was a new student, a petite woman who wanted an introduction to self defense.

With the rest of the class watching, the master gave the two students their instructions: he was to try to take control of her and she was to resist. The man nodded and rushed at the woman. She swung at him, but he overpowered her, locked his arms around her, and picked her up off the ground. With her arms pinioned, she kicked at him and tried to headbutt him, but he ducked his head and ignored her kicks.

“Very good,” said the master, and the man put the woman down.

From his pocket the master produced a small folding knife. He snapped the short blade open, and handed the knife to the woman.

“Now again,” said the master.

The large man shook his head. “No sir,” he said.

Jason Howard: Are You E-X-P-E-R-I-E-N-C-E-D?

Seventeen years ago, when I started representing people accused of crimes, former prosecutors didn't have to explain to potential clients why they should hire former prosecutors: the clients just knew that former prosecutors had connections in the DA's Office that would help the clients get favorable resolutions.

I never saw a criminal-defense lawyer advertising himself as "never a prosecutor" before I started doing so; when I would point out to a potential client that he was more likely to suffer than benefit as a result of the long-term relationships between a former prosecutor and him (if he has to choose between maintaining those relationships and burning bridges on your behalf, which do you think he'll pick?) his eyes would get wide. His checkbook would come out.

Jason H. Howard has no reason to remember the practice of law in those days because he was a freshman in high school, fighting acne and maybe hoping to get to second base.

Much has changed since then. Clients are now much less likely to see prosecutorial experience as a positive. Young Jason needs to work to convince the potential clients that his prosecutorial experience has value. For this former prosecutor, the benefit he provides his clients is E-X-P-E-R-I-E-N-C-E

Now, if I were a prosecutor who'd been a criminal-defense lawyer for less than a year, I probably wouldn't be focusing on E-X-P-E-R-I-E-N-C-E. It's borderline deceptive, and doesn't stand up to scrutiny. Since Young Jason doesn't have any experience to speak of as a criminal-defense lawyer, the E-X-P-E-R-I-E-N-C-E he focuses on is E-X-P-E-R-I-E-N-C-E as a prosecutor, and more specifically the ability to "think like a prosecutor." (At least he doesn't overtly play the "relationships" card.)

Experience as a prosecutor is arguably more relevant to the art and science of defending people than is, say, experience as a marine biologist. When I say that it something is arguably so, of course I mean that it is arguably not so.

Suppose that there's a lawyer who, like Young Jason, was first licensed to practice law in 2006; instead of suckling at the government teat she started her own practice. For the last six years she's been defending human beings in trouble. She's worked with a hundred different prosecutors on hundreds of different cases. She has a bank of motions that she has written herself. She has been the underdog; she has won some cases and lost more, and she knows why. She has discovered what works and what doesn't. Does she "think like a prosecutor"? Probably not in the sense that Young Jason means: she understands her adversaries, but she hasn't internalized their thinking.

What she has internalized is how to think like a criminal-defense lawyer. This is something that Young Jason will have to, if he is to be honest, concede that he doesn't know (because his definition of "thinking like" requires E-X-P-E-R-I-E-N-C-E A-S, and he doesn't yet have appreciable experience as a criminal-defense lawyer).

An example of Young Jason's fixation with the prosecutorial point of view:

Because our system generates agreements based on what both sides feel would likely happen at a jury trial on any given case, it’s important that your attorney have the capability of seeing a likely trial from both sides.

No criminal-defense lawyer that I know would ever speak of the system "generating agreements." When I hire a criminal-defense lawyer, I don't want her to work with the prosecutor to generate an agreement. I don't want anything the system might generate. I want her to fight like hell and win. I recognize that she might not win, so I want her to accurately evaluate our chances of winning at trial or on appeal.

(An evaluation our chances of winning at trial or on appeal requires an ability to step into the shoes of someone else, but that "someone else" isn't the prosecutor: it's a jury. The prosecutor's opinion is of little importance.)

I want my lawyer to accurately evaluate the odds, and I want her to convince the prosecutor both a) that our chances are even better than that; and b) that a trial would be a pain in the ass.

To convince the prosecutor of those two things, which do you think is more helpful: that the lawyer used to work in the DA's Office and so evaluates the case pretty much the same as the prosecutor does; or that the lawyer is a bomb-throwing true believer who might pull a crazy defense out of thin air and believe it enough to sell it to a jury?

The great defense lawyers who are former prosecutors are great not because they learned to think like prosecutors but despite that fact—they have set aside their ingrained ways and learned to think anew, this time like criminal-defense lawyers.

The argument that former prosecutors make good defense lawyers because they can "think like prosecutors" is one I'll never buy. Young Jason's idea that thinking like a prosecutor helps him defend people is an obstacle to setting aside those prosecutorial thought patterns, and so may be an obstacle to his being a great criminal-defense lawyer.

(The post says "posted by Brandon W. Barnett," but I'm holding Young Jason responsible because a) as a JAG lawyer, Barnett has some defense experience; b) the post also says "Text copyrighted by Jason H. Howard"; and c) the post is tagged "Jason Howard.")

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