Philip Rosmarin

I’m just a plainspoken Colorado criminal defense lawyer, but the way I see it…

Alex Kozinski is a judge (and former chief judge) of the United States Court of Appeals for the Ninth Circuit. If a constitutional issue crops up in the Northern Mariana Islands, he’s your go-to guy. The fact that ten other state and territorial jurisdictions lie in his purview make his (and his twenty-eight colleagues’) impact of perhaps greater moment.

The fact that California is one of those states has prompted some critics to declaim something peculiar going on with that court.

Call me irresponsible, but I’ve always seen a particular charm in the peculiar. So, over the next little while, I’d like to examine some of this jurist’s views.

Not long ago Judge Kozinski examined some of the presumptions in our criminal justice system that, when confronted, blow a huge hole through which reasonable doubt may enter into our trials. There are twelve of them, which he outlined in a preface he wrote for the Georgetown Law Journal’s Annual Review of Criminal Procedure. Their titles are as Judge Kozinski presented them; the comments following are mine.

1. Eyewitnesses are highly reliable. This is the bedrock of trial testimony; everything else is circumstantial. But to a white man, every black man is Denzel Washington. In a crime involving a gun, is the victim looking at the gunman, or at the gun? In any high-stress event, are we Cool Hand Luke, or Barney Fife? Judge Kozinski says that more than a third of wrongful conviction cases involve mistaken eyewitness testimony.

2. Fingerprint evidence is foolproof. There are a lot of fools out there who have proven it otherwise. Prints residing in a national database and partial, blurry and stacked prints at a crime scene are such different things that far more guessing is involved than most fingerprint “experts” care to admit.

3. Other types of forensic evidence are scientifically proven and therefore infallible. Only on TV. Judge Kozinski cites error rates as high as sixty-three percent on voice identification; forty percent on average and up to almost one hundred percent on handwriting; up to sixty-four percent on bite marks; twelve percent on hair comparison. These are rates we send people to prison for, send them to their deaths. Men and women have been sentenced to countless years of prison, he writes, convicted on evidence by arson experts “later shown to be little better than witch doctors.”

4. DNA evidence is infallible. That would be true (maybe) if the trained professionals who collect and analyze the evidence were honest, properly trained and, incidentally, robots. The scandals involving FBI labs, local police labs — labs, in fact, in my home state — are plentiful. DNA evidence is pretty good — when it isn’t planted, tainted, or otherwise mishandled.

5. Human memories are reliable. What did you say? Why are we always the heroes of our own stories? Ever wonder why prosecutors like to prep witnesses they then advise never to talk with the defense?

6. Confessions are infallible because innocent people never confess. My own clients have confessed to the police based on information the cops claimed to possess, or on how the “facts” were presented to them — then later, after telling me what happened, learned that what they were about to plead guilty to did not fit what they actually had done. In some cases, no crimes were committed at all, but still they would have confessed. No wonder a person who represents himself is considered to have a fool for an attorney. And that doesn’t even begin to consider innocent people who confess under harsh interrogation, emotional or mental impairment, or just a pathetic desire to get it over with.

7. Juries follow instructions. No one can follow instructions he or she can’t understand, and that a judge can’t explain. Even the reasonable doubt instruction: what the hell is that? And because jury rooms are sacrosanct, we don’t even know if the instructions lawyers fight over are even read except by the judge, much less deliberated.

8. Prosecutors play fair. Please.

9. The prosecution is at a substantial disadvantage because it must prove its case beyond a reasonable doubt. That must explain why prosecutors convict eighty-five percent of the people they indict. Not because presumption of innocence is a high-flown concept that flies high out the window as soon as a prosecutor asks his first question. Not because the prosecutor gets both the first and last words in a trial. Not because the prosecutor has the authority and financial power of the state at her call. Those poor babies.

10. Police are objective in their investigations. I have rarely — so rarely that I seek them out afterward if they have not done this, to thank them — heard a police officer who did not lie at trial, under oath, in front of God or anything at all they consider holy. They are even more rarely simply evil people; they are men and women who believe the defendant is guilty, and want to make sure the jurors believe it too. To this end they will, as Judge Kozinski writes, manufacture evidence, destroy evidence, influence witnesses, and extract false confessions. Did O.J. Simpson murder his wife and her friend? Absolutely. Did the cops frame an innocent man? No, they framed a guilty man, and the jurors saw through that. The criminal trial that acquitted him and the civil trial that condemned him both were proper results.

11. Guilty pleas are conclusive proof of guilt. They are rather, in many cases, conclusive proof prosecutors care more for convictions than for justice. Guilty pleas are coerced by overcharging so that terrified defendants are bullied into taking a lesser plea to avoid the risk of prison. Many clients will “take the deal” because their own lawyers are telling them it’s safer than rolling the dice at trial. Sometimes the price is trivial; sometimes it is devastating; always it has nothing to do with justice.

12. Long sentences deter crime. They deter further crime by the people who are serving those long sentences, until they get out and many discover how difficult it is to rejoin their communities after so long behind bars, and commit crime again. I suspect that few if any persons who have time to contemplate an upcoming crime first consult Google about their likely sentences if caught. I know they don’t call me.

I’m just a plainspoken Colorado criminal defense lawyer, but the way I see it…

It was barely a week ago that I was sitting in a Montreal café, a week after the first Presidential debate, thinking about the numbers of Americans considering moving to Canada if things don’t turn out the way they’d like in November.

Now, just two days after the second Presidential debate, the headlines are about Americans going to Mars.

I can’t wait for the third debate.

I’m just a plainspoken Colorado criminal defense lawyer, but the way I see it…

Like most lawyers, I get more than my fair share of email messages. Like most lawyers (like most everyone), I ignore as many as I can.

One I get every month, and am sorry to have ignored for so long, is from an organization called Rights4Girls, whose website link you just glanced at eleven words ago.

Rights4Girls is a human rights organization working to end sex trafficking and gender-based violence in the U.S. Those folks have the temerity to believe every girl has the right to be safe, to live her life free of violence, free of exploitation, free of even the remotest possibility she may someday grow up to be one of Donald Trump’s wives.

The organization’s current campaign is to persuade the public and the government uniformly to treat girls involved in the sex trade in the United States as victims rather than perpetrators. Perhaps also customers of that trade might be given their money back to fund personal prison commissary accounts.

I mention this because today is Girls Justice Day, and they mentioned it to me, in an email I didn’t ignore. Thank heaven — for little girls, sure, and for the people who watch out for them.

I’m just a plainspoken Colorado criminal defense lawyer, but the way I see it…

I’ve been accused (frequently) of saying things others wished they had said, but had the good sense not to say it out loud.

I guess that’s the thing about plain-speaking: the thing has to be spoken, out loud. I’m not saying that’s a good thing, but it’s a thing.

When I heard about the death of a law school classmate and former law partner, I admit a survivor’s frisson. “Frisson” is a French word — and a timely one, as I write these words from French Canada — which literal meaning is “shiver or thrill.” So a shiver at the shade of this dead guy who for all I know could be standing at my shoulder frowning even now. And a thrill because I was thrilled it wasn’t me I heard about.

Though I saw him five days a week the entirety of law school, and though Colorado grows fairly cold in winter, I never knew he owned a pair of long pants until he opened his law practice. Because he wanted a criminal defense arm (leg? arm and leg?) as a revenue stream, but didn’t want to get too close to anyone who might be an actual criminal, he brought me in for a brief time. Brief, because we had different ideas about what things were ethical and what things were not.

His language was colorful — particularly so when speaking about women — but not nearly so colorful as the plumage on the gigantic parrot he kept uncaged in his office. A wonderful creature, whose only defect was shitting on the occasional client who hadn’t already been shat upon.

Like nearly everyone born into a country that economically profited by enslaving another race, he suffered the affliction of bigotry. He was perhaps more sorely afflicted than some. There were people who loved him, people who hated him. He was lonely and embittered by many of his relationships with his own species, and sublimated his hurt and anger into a remarkable affection and commitment to less judgmental animals.

A few years on, he further diversified his law practice and opened a used car lot catering to people whose bankruptcies he’d just handled. Your credit was always good with him, because who knew better what your credit was. I learned of the new business venture a couple years after we’d parted ways, in a bubbly pre-recorded telephone sales call; he’d forgotten to take me off his suckers list.

All this is to say this may be the last time I write anything here, for good or ill. Plain-speaking is fine and all, but hubris almost always gets you.

I’m just a plainspoken Colorado criminal defense lawyer, but the way I see it…

Cass Sunstein is the most cited law professor in the explored universe, an expert in Constitutional law, the set of rules that bothers folks who set foot in the United States or any of its territories.

He’s also got a thing for Star Wars, which sets him in some conflict with people who have a thing for Star Trek.

He’s written a book — “The World According to Star Wars” — which manages to join his professional and fictional interests. If Yoda had been a criminal defense or human rights lawyer, he might have come up with some of the same observations Sunstein does.

The scholar claims that when he traveled to Taiwan last year, people wanted to talk about human rights, sure, but also about Star Wars.

For some reason, he Googled “Star Wars” and came up with about seven hundred twenty-eight million results — more than the Beatles, Shakespeare, Abraham Lincoln, and Taylor Swift put together. “Rosmarin Law” returns a paltry one hundred eighty thousand results, which I’m trying to pick my way through a few at a time.

Sunstein came late to Star Wars. I watched it, the first one, before almost anyone else. Because I was dating someone involved with someone involved with the production, I saw a rough cut, before it was scored, and confidently pronounced it a bust. This was almost as brilliant as my prediction ten years earlier that, in ten years (about the time Star Wars came out), nobody would remember the Beatles (the ones with one hundred seven million Google hits in the first half-second).

Sunstein forgives me, though, pointing out the studio had no faith in their little film either; the actors thought it ridiculous; George Lucas feared it was almost as catastrophic as his beard.

Yet it has endured, in no small part because it deals with the choice between light and dark, the focus of our criminal justice, geopolitical, and human rights systems. The choice between criminalizing human behavior and accommodating differences in moral themes. The choice between seeing an unarmed human being and firing as many bullets as you can into his big black body.

A few now, of those observations:

• …freedom is good, oppression is bad, and public officials shouldn’t torture or choke people. But let’s hope you didn’t need Star Wars to know that.

• On the nature and fate of rebellions: Some of the heroes of the Arab Spring have not turned out to be democracy’s friends. Thus Padmé: “What if the democracy we thought we were serving no longer exists, and the Republic has become the very evil we have been fighting to destroy?”

• Martin Luther King Jr. was a rebel, unquestionably a Skywalker, with a little Hans and more than a little Obi-Wan. Of the Montgomery Bus Boycott: “If we are wrong, the Supreme Court of the United States is wrong. If we are wrong, God Almighty is wrong. If we are wrong, justice is a lie.”

• As a rebellion gains steam, people become less likely to accept their own lowliness. That “down look” ceases to be a part of life. Instead it becomes a symbol of oppression. A word to emperors of all kinds: beware.”

• In law, even Jedi masters sometimes get it wrong.