What Is Criminal Law?

If war is the continuation of politics by other means, then civil litigation is the continuation of business by other means. “Getting to yes” means confrontation, struggle, damage awards and attorneys’ fees. In civil litigation, businesses use litigation as a weapon to gain market advantage, protect a patent or process, or simply to hobble a competitor. I had my start in business litigation, there being few opportunities for me at the time in criminal law. Businesses resort to litigation when they perceive it to be in their best interests despite the costs and the disruption of their principal activity, making profits.

In my experience, however, when businesses have at each other, usually each side has some rational goal it is pursuing and the decision makers are relatively unemotional about the process, even when the stresses and strains crack their composure. And there is an element of freedom of choice: in most cases even though litigation is initiated, a business can retreat, settle, attack, or appeal.

Criminal defense bears little similarity to business litigation. The accused is not at the bar because he or she has made a quasi rational choice to be there. Often the accused is incarcerated pending trial for something he may or may not have done. He is led from the jail to the courthouse in chains and returned by the same means. The whole force of the state is being brought to bear against him in a setting that has little to do with rationality.

The whole apparatus of criminal law rests on a structure that is intentionally repressive, often in irrational ways. A man arrested for beating his wife may or may not have struck her but the system cares little about whether he did or not. The accusation is usually enough; if the accused attempts to defend himself, he will be told that he is in denial.

Aside from the many irrational rules that govern life in a jail or even in prison, in at least 90% of the cases the fate of the accused is decided by plea bargaining, a system of negotiation that is stacked against the accused. You are accused of assault but you believe you were acting in self defense. Without witnesses or an admission on the part of the victim you have a hard way to go. Someone’s nose was broken, his vision may be affected, you could go to county jail for 12 months or state prison for a longer time. Could go, that’s the catch. You almost certainly won’t serve that much time but there is no guarantee that if you go to trial and lose you won’t get the max.

So the DA says he’ll accept a guilty plea and 30 days in the county jail: what are you going to do? The rational choice, if this were a piece of business litigation, is to limit your losses and do the 30 days. Doing the 30 days, however may impact your job, your future career, your immigration status, your choice of a profession, so the choice is heavier than 30 days as against one year. But still will you take the risk and go to trial?

In the end you do the rational thing and take the 30 days even if you are innocent. It’s the safe choice. Guilt or innocence, crime and punishment, have little to do with your outcome. In reality the whole apparatus exists to repress certain racial groups or to force acceptance of certain social policies. All your protestations are wasted energy. You stand accused; you’re going to get a disposition, and you will pay regardless of the facts that accuse you.

Your lawyer can help, although often his role will be limited to telling you when to accept a plea. If the stakes are high, a good defense lawyer may take you through trial and win your case for you. But a criminal trial in which you are rolling the dice against 25 years of your life is high anxiety, maybe the highest.

Everyone has the jackboot of the state poised above their heads anyway. Criminal law is when the jackboot of the state is brought down upon you with crippling force. It is the extension of class struggle by other means.

Back to Jack

Jack is 34, Irish by birth, passionate and depressive at the same time. He married a 22 year old woman who calls the police every time they have an argument. She has had Jack arrested 3 times and confined to a psychiatric facility once. What drives Jack crazy is that every time she puts him in lock-up, she relents, writes retractions to the DA and Judge and then reconciles with Jack. A real dance away lover.

She’s now got a domestic violence restraining order against Jack. Domestic violence or DV is sanitized talk for wife beating. Either spouse can get one but very few men seek restraining orders against their wives. Of course opposing spousal abuse is PC; you can’t really take the opposite position. Jack’s restraining order is a no contact order which means he can’t phone her or even send her an e-mail. How she got the order is beyond me except she did say Jack slapped her once, an allegation he denies.

But he’s so obsessed with her he can’t stop calling and sending e-mails. The last time she had him arrested it was for a package of e-mails in which he talked a great deal about God and how their marriage was ordained in heaven. As it turns out talking about your relationship with God is not PC and the DA wants him to be examined by a psychologist to see whether he is sane or not. The judge didn’t blink an eye. Order granted.

Take notice: it may be illegal to admit that you pray in Santa Clara County. The DA said that if there were no God talk he’d recommend 30 days in jail. “But this God stuff makes me wonder if he’s all right in his head.” Wow. In God we trust. One nation under God….Makes you wonder.

So Jack’s going to have his head examined tomorrow. Once the state gets into your head it’s far worse than 30 days in jail. You have to read Orwell to understand.

Where's Jack?

My client was arrested in Fresno and taken to San Jose so first I must find him before I can help. The cop who answers the phone at the jail is friendly enough. He calls me "guy." He tells me my client has been "transported" (his word) to the Santa Clara County jail; I call there. Transfered from one automated phone message to another. Finally, miraculously, I get a deputy, who tells me my client just arrived.

I think about the drive from SF to San Jose which has the fifth largest jail in the US. It's a dreary hour on the road to get there but go I must. The county complex in San Jose consists of three tall buildings: county administration, the main jail, and the courthouse (criminal cases only). You can see it from 101 but you have to take some twists and turns to land in the right spot.

It's not so easy to get inside the jail although the deputies are more helpful with attorneys than the public generally. If you know the prisoner's birthdate they can tell you which part of the jail he's in. I didn't know. Never thought to bring it with me. Prisoners also have a booking number eight digits long. That'll call up his case and location. He or she will also have a number assigned by the district attorney and finally a docket number which is the number of their case. After some gruff complaining the deputy looks up my client's name and is able to place him in the system.

"Shit," he says. "He's in the old jail."

"Where's that?"

"Follow the corridor to the elevators. Take the elevator to the basement. No buttons. Use hand signals in front of camera to indicate floor." He gives me a few signals. "When you get to the basement each time the corridor turns ask someone which way to go."

So you have to walk under the main jail to get to the old jail. It's strange following this endless twisting corridor. At one point I try to open a door and a voice over the loud speaker shouts "Wrong way, you are going the wrong way." Eventually I get to the old jail where I have to take an elevator up to my client's dormitory. When I finally get to see him he is a droopy sad looking fellow, smaller than I expected, not at all dangerous looking. There are handcuffs attached to chains embedded in the floor but the guards don't use them.We talk. Jack mainly wants out. They all do at first. Fear of incarceration. After a few days they settle down, make a friend or two, get used to it. They still want out but they don't display the panic fear of the first 2 or 3 days.

I try to figure out when he's being arraigned so I can be there. No one knows or no one's saying. Finally a deputy tells me there's a transportation order for my client tomorrow at noon. That's cop talk for he's being moved to a court room for his hearing. There's a lot of cop talk in the jail. The prisoners are called the in custodies, not prisoners. There are more rules than you'll find in Kafka. In the courtroom the in custodies sit in the jury box. You can't speak to an in custody if you're a friend or relative. That includes signals, any signs of recognition. The in custodies are a droll sight in the jury box in their orange jail uniforms and chains. They sit as if they are putting the system on trial--that's the visual anyway.

As a lawyer I can talk to my client. The deputy puts 2 chairs by the custodies, unchains my client and calls him down to sit by me. The deputy says to me "Watch your back," and I guess he's right but the custodies act as if they'd been drugged or just waked up from sleep.Each case gets a few moments. At arraignment the judge reads the custody his rights and takes a plea. If he can't make bail he stays in custody. My man can't. When we are done he looks at me wistfully from the jury box as I leave the courtroom. I get to go home; he doesn't. What a world of difference.