Why Is a British-Recognized Esquire Asking Questions in an American Court?

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141 Responses

  1. Paul E. "Marbux" Merrell says:

    Esquire (Wikipedia)

  2. Lizard says:

    I have got to find a way to host the KOTH clip I extracted, so that you can link to it at times like this.

  3. G. Filotto says:

    Well… I can't say that I know what he was going on about, and deranged he may well be, and absolutely, I 100% agree about the damn hippie hair and clothing, in fact on those hippy facts alone there may be grounds for hanging him; however, that said, and his possible mental imbalance notwithstanding, I have to respect his integrity. Deranged or not, he did carry himself in an honourable fashion. I still wish he'd shave, cut his damn hair and dress like someone from the 21st century though.

  4. Ryan says:

    Not one of these natural law / freemen / detaxers / sovereign citizens / whatever has ever been successful using those tactics. You have to wonder why the hell they keep trying.

  5. SPQR says:

    Utter loons. Hilarious as heck when you are not the one trying to get a judgment against them.

  6. Carl says:

    Being an anti establishment American isn't always easy.

  7. Cat says:

    Huh. Appealing to natural law probably is not the best idea. As far as I've ever been able to figure out, I have to agree with Heinlein that there is but one natural law. You are born only with the right to attempt to survive in the face of a world that wants you to prove your fitness to live and breed. All else is social construct created by humanity in its own interest. Appeal to Natural Law as one is attacked by wolves, bears, or is drowning in a storm wracked ocean – Nature is deaf to your arguments.

  8. jdgalt says:

    You have to wonder why the hell they keep trying.

    Because (1) they're true believers in some religion or other, or (2) they're loonies.

    Possibly the same thing.

  9. nlp says:

    And all this about fishing without a license.

  10. En Passant says:

    The link in the youtube video goes to a background story on the case.

    tl;dr: a jury found him guilty of misdemeanor obstruction and resisting, from an incident that involved fishing without a license. He was fined $150. At trial he was not permitted to cross-examine witnesses. The news report is not clear on whether he eventually had appointed trial counsel.

    My murky and not well calibrated crystal ball senses that a decently argued appeal could conceivably succeed, on a real 6th Amendment issue of being denied to cross examine witnesses, or denied assistance of counsel, not some issue about his name in all caps on the complaint. But facts matter, and the TV news story was shy on some relevant facts.

    ETA: I didn't watch the entire video. Too tedious. So I probably missed some facts not in the text at the TV station link.

  11. James Pollock says:

    My murky and not well calibrated crystal ball senses that a decently argued appeal could conceivably succeed, on a real 6th Amendment issue of being denied to cross examine witnesses, or denied assistance of counsel

    I'd guess that the principle of waiver will operate to prevent any appeal from succeeding. In other words, if you decline to take part in the proceedings, you don't get to complain later that you were denied the opportunity to exercise your rights. Use 'em or lose 'em. Ken talked about a similar case only a little while ago; the blogger who pissed away his ability to appeal an order by not participating in the hearing where it was set.

  12. En Passant says:

    I'd guess that the principle of waiver will operate to prevent any appeal from succeeding.

    Maybe so. But as I recall the blogger case you refer to was a civil proceeding where counsel is not a constitutional right.

    Any court can order a criminal defendant silent within courtroom, isolate him if necessary, and appoint counsel to represent him. Counsel should be permitted to cross examine witnesses. It's not clear to me from news reports (and the tedious video I've now watched) whether that happened or not.

  13. DELVAN NEVILLE says:

    I cannot in good faith make a comment regarding that video on this website at this time, given that this website insists on referring to me, as above this, by a name written in all caps letters that is not, by oath and bond, my name under natural law.

    I now submit myself to the wolves as a failed competitor in natural selection.

  14. MCB says:

    I doubt he would win on appeal. The judge gave him every opportunity to STFU and let the prosecutor present his case. After that he could have made his all caps argument to the jury all he wanted to. But he declined that.

    This particular guy does seem like a harmless nut though.

    Also, Clark, is there any government you acknowledge the legitimacy of? Past or present has a legitimate government ever existed from your perspective?

  15. G Thompson says:

    @Ryan: Not one of these natural law / freemen / detaxers / sovereign citizens / whatever has ever been successful using those tactics. You have to wonder why the hell they keep trying.

    I refer you to the absolute definition of Insanity that Einstein (though this is disputed) stated:
    Insanity is doing the same thing over and over again and expecting different results.

    G Thompson Esq.

  16. Doctor X says:

    He should have moved to have the case heard in Common Law Court.

    What?

  17. Doctor X says:

    You have to wonder why the hell they keep trying.

    To add to jdgalt's observations, "True Believers" interpret opposition as validation of the belief: the more opposition, the more valid and "threatening" their belief.

    –J.D.

  18. Dismoun says:

    I wonder how accurate the follow-up article was with the 'was not able to cross examine witnesses' claim. Having seen several of these bozos attempt to represent themselves in court, they frequently ask improper or irrelevant questions, forcing the judge to order them to return to the actual issues at hand. When the judge orders them to return to relevant issues, they tend to get huffy and refuse to proceed.

    Up here in Canuckistan, the associate chief justice of the Alberta court of appeals took the opportunity of ruling on a 'freeman-on-the-land' motion in a divorce case to issue a massive thesis about the movement as a whole, and did a very thorough dissection of their claims, origin and methods.

    I was particularly taken with his comparing their phrases and words to magic incantations, their gurus teach them that if they just memorize and spout the right phrase to the court, somehow they will magically achieve their desired result. It never works, but it's always damn funny.

    The decision I mentioned is here: http://www.canlii.org/en/ab/abqb/doc/2012/2012abqb571/2012abqb571.html

  19. Ryan says:

    @Dismoun

    *thumbs up*

    Rooke's reasons are an utterly fantastic read, and yeah, I did read the entire thing shortly after they were finally released on CanLii. Anyone interested further in these loons should read his comprehensive take (even if some of our American friends may trip a bit on the way the Canadian courts report judgements; the writing and structure is somewhat different from what they'll be used to).

    As an aside, after Rooke's reasons were released he's been cited quite a number of times across the country in the few short years since, and a few legislatures are actually contemplating changes in provincial law, in addition to courts which are changing their own procedures, to help identify and deal with these nuts before they cause havoc in the judicial system and cost everyone else a lot of money.

  20. Lizard says:

    @Ryan: No one has ever accomplished anything via prayer, either, but people keep praying. Any way, the assorted freemen and militias and whatever they call themselves are far less anti-government than the rest of us. They believe government works, that there are laws and principles that guide it, and these laws are universal and morally binding. The believe there can exist a government notably different from a gang of thugs with guns, that "government" means more than "The biggest boss on the block." The rest of us — well, me, at any rate — recognize the government ignores every law it can, and changes the laws it can't ignore, and works to make sure the lives of the vast majority remain at "quiet desperation", sufficient that the potential gain from outright revolution dies not outweigh the probable loss. (The well justified fear that the Who has the right of it and all that we will accomplish to create a new boss who is the same as the old boss serves as an effective control mechanism, as well.) I am disinclined to risk the comforts and conveniences I do have for a better than 99% chance that, if successful, I will have fewer comforts, but will have replaced President Tweedle Dee with Prime Minister Tweedle Dum. And the parting on the left… is now the parting on the right….

    Ultimately, Mr. Spooner's well-reasoned justifications for rejectimg the state are philosophical streamers of tissue paper compared to the guns & goons providing justificiation for the state. In the battle between Spooner and Coreleone, Corleone wins.

  21. En Passant says:

    DELVAN NEVILLE Nov 29, 2013 @10:33 pm:

    I now submit myself to the wolves as a failed competitor in natural selection.

    I'd rather go party at that joint ACJ Rooke noted (in the document linked by Dismoun @11:10 pm above): The Inner Temple of the City of London, a hostile foreign entity.

  22. Doctor X says:

    @Dismoun

    *double thumbs up*

  23. LabRat001 says:

    On British-Recognised Esquire compared to the American usage.

    Taken from Wikipedia.
    The breadth of Esquire (as Esq.) had become universal in the United Kingdom by the mid 20th century, with no distinction in status being perceived between Mr and Esquire. Esquire was used generally as the default title for all men who did not have a grander title when addressing correspondence, with letters addressed using the name in initial format (e.g., K.S. Smith, Esq.) but Mr being used as the form of address (e.g. Dear Mr Smith). In the 1970s, the use of Esq. started to decline, and by the end of the 20th century most people had stopped using it and changed to using Mr instead. Esq. is generally considered to be old-fashioned, but is still used by some individuals and organisations that wish to give the impression of being 'traditional'

  24. Cat says:

    @Lizard – I disagree. People have accomplished quite a lot via prayer. None of it was what they were actually praying for, mind you, but it has made a lot of people feel better about how much crap they were wading through at the time and reinforcing the self-delusions that prevent the human race from succumbing to dark ennui and Robert Smith songs if they realized exactly how wretched they are.
    (okay, okay, a small number of people know exactly how much everything sucks even at the best of time, and simply don't care.)

  25. Anony Mouse says:

    I think I've mentioned that I don't acknowledge the legitimacy of the US government for Spooner-like reasons

    …you have trouble keeping the beginnings of words in the proper order?

  26. Todd Knarr says:

    Any court can order a criminal defendant silent within courtroom, isolate him if necessary, and appoint counsel to represent him.

    The first two yes, but (and someone correct me if I'm wrong) the court can't arbitrarily appoint counsel for a criminal defendant. They're entitled to be represented by counsel, appointed and at no cost to them if they want it and can't afford it, but they're not required to have it. If the defendant wants to represent themselves, IIRC the court has to find that the defendant doesn't understand the proceedings or is otherwise incompetent before they can force counsel on the defendant. Merely being stupid and willfully wrong-headed isn't sufficient (although it's certainly persuasive evidence), which leaves a lot of room for you to dig a really big hole for yourself and the court's obliged to let you.

  27. Clark says:

    @DELVAN NEVILLE

    I cannot in good faith make a comment regarding that video on this website at this time, given that this website insists on referring to me, as above this, by a name written in all caps letters that is not, by oath and bond, my name under natural law.

    LOL!.

    Bonus points for signing your name in the comment in all caps letters.

  28. Clark says:

    @Lizard

    @Ryan: No one has ever accomplished anything via prayer, either,

    Asserted with out evidence.

    Not that evidence could, even in principle, be found … but if you're going to play that rationalist / materialist / more-logical-than-thou game, play it straight.

  29. Doctor X says:

    Your evidence for prayer working Clark?

    There is a Nobel Prize waiting for you should you ever provide it.

    On the other hand, lizard and others can demonstrate centuries of it not working.

    Or have you never visited a children's cancer ward?

    May seem harsh, but if you play the card, do not complain about the results of the game.

  30. Doctor X says:

    So no evidence then.

  31. Pickwick says:

    Clark, the Bible is rife with tales of people invoking prayer to immediately and obviously change the world around them in ways that would be damn near inexplicable except by reference to powers unseen. Even that doesn't necessarily indicate the supernatural, merely the unexplained (perhaps the really, really unexplained.)

    This does not happen today, and I think the most likely explanation is that though we're still a credulous, delusional species, we're also becoming more aware of our tendencies toward delusion, innate biases in interpretation, etc. As a result, fantastic stories are rightly regarded with a measure of skepticism.

    You are a Catholic; do you accept the Bible's word on prayer bringing about miracles as fact, historical or otherwise? How do you square its account with the wonderful-but-not-clearly-miraculous world we inhabit?

  32. Clark says:

    @Doctor X

    Your evidence for prayer working Clark?

    None. I did not assert that there was any, and explicitly said that evidence on the topic could not, even in principle, be found.

    On the other hand, lizard and others can demonstrate centuries of it not working.

    Sigh.

    Or have you never visited a children's cancer ward?

    May seem harsh, but if you play the card, do not complain about the results of the game.

    I don't. I only complain about the quality of my fellow players.

    @Doctor X

    So no evidence then.

    Oh, I'm sorry. I failed to respond to your comment between 3:56 am and 4:30 am. Yes, that's devestating proof that I'm an intellectual fraud.

  33. Clark says:

    @Pickwick

    Clark, the Bible is rife with tales of people invoking prayer to immediately and obviously change the world around them in ways that would be damn near inexplicable except by reference to powers unseen. Even that doesn't necessarily indicate the supernatural, merely the unexplained (perhaps the really, really unexplained.)

    This does not happen today,

    First, I'm not arguing in favor of miracles, frequent miracles, or large miracles. I'm merely arguing against the high-school level atheist debating tactics.

    Your second line quoted above is a perfect example: you have no evidence of X, therefore X does not exist.

    Or, shorter: argumentum ad ignorantiam.

    Graduate from high school level atheism to college level atheism, please: at the very least throw in a reference to Russel's Teapot.

  34. Doctor X says:

    @Clark

    None. I did not assert that there was any,

    Then you should not have admonished lizard for noting that.

    The children who have suffered tortures beyond your privileged imagination despite their devote prayers recognize the fatuousness of your "sigh."

    That, son, rather is that.

    –J.D.

  35. Doctor X says:

    @Clark:

    We will add "does not know what argumentum ad ignorantiam means to your deficiencies since you relied upon it.

    Your evidence?

    Anything?

    Nothing?

    Quod erat demonstrandum

    –J.D.

  36. Doctor X says:

    @Pickwick notice how he tries to duck the burden of proof. He proposes a supernatural, then demands others disprove the supernatural to his satisfaction.

    As I indicated–kindly–to him, this is not meant as a remonstration. However, if he remonstrates others for refusing to share in his personal fairy tale, he cannot complain–as he does–when others remonstrate him for his belief in his own despite evidence to the contrary.

    You mention "The Bible." The Bible is not a monolithic entity–I write this for Clark's benefit for I am kind–but a collection of texts which are, themselves fascinating combinations of texts redacted over time. One passage does not agree with another, nor should it be expected to. Nevertheless, the texts describe the Earth as flat, as having been created before the Sun, Moon, and stars, with plants also being created before the Sun, Moon, and stars, all the way to the world ending prior to 200 C.E.

    Now Clark is free to believe what he wants in 'merica–USA!USA!USA–as is anyone else. What becomes hypocritical is when he denounces others for correcting his beliefs against reality.

    But . . . I believe I can fly . . . gravity is just a matter of opinion.

  37. Doctor X says:

    "And that is all I have to say."

  38. Burnside says:

    Doctor, you seem to be trying to win an argument that no one else is participating in. Much like the posted video to my amusment.

    Clark was essentially saying that not everyone believes as Lizard does, then you yelled "DEAD BABIES!"

  39. David says:

    Ignore the troll.

    @Clark,
    Do you continue to enjoy the benefits of residency in this country, with the concomitant services and protections, while declaiming its illegitimacy? If so, by what rationale do you refrain from high-tailin' it outta here and staking your claim somewhere outside King John's demesne?

  40. Dr X says:

    Seems there has been a bit of confusion. For those who know Dr X from elsewhere, Doctor X in this thread is not me.

  41. barry says:

    If you believe something hard enough, you can eventually make yourself think it is true. And who wouldn't like to believe in a general purpose legal loophole for all laws that they didn't like and didn't think should apply to them?

    I've chatted with someone who claimed to believe that American laws only applied to American citizens. It was not a long conversation and I was glad to get away. This seems a variation of that.

  42. C. S. P. Schofield says:

    Ryan;

    They keep trying for exactly the same reasons that Western Intellectual Twit Socialists keep trying their tripe, in spite of the long history of socialism A) not working as advertised and B) when taken to extremes resulting in the liquidation of the intellectual twit population. Following their delusional star makes them at least in their own minds, important and superior. And that is more important to them, on an emotional level, than being useful or actually getting anywhere.

  43. En Passant says:

    Whatever one thinks of Mr. Tertelgte's absurd legal theories, a local Montana newspaper, the Belgrade News does report as fact some events that raise questions about actual 6th Amendment rights in his trial. If he was sentenced only to a fine, those rights do not apply, under Scott v. Illinois, 440 U.S. 367 (1979). But if he was imprisoned awaiting trial, and his sentence included time served awaiting trial as well as a fine, they may.

    My personal opinion is that Scott v. Illinois was wrongly decided. I do agree with Brennan's dissent that authorized or potential imprisonment, not just actual imprisonment, should trigger the right to counsel. But my view is that right to counsel should apply even if only a fine is authorized by the criminal statute. I simply do not want the state to have any opportunity to deny counsel.

    The power of the state to hold a person prisoner awaiting trial, then fine him into further poverty, then imprison him for failure to pay the fine, all without benefit of counsel, is terrifying, and frankly totalitarian. But few hold my opinion.

    Some Belgrade News excerpts [emphases and bracketed notes mine]:

    Once terTelgte was transported to a separate room, Riley [the prosecutor] continued to talk to the six-member jury panel about its duty to remain impartial during court proceedings.

    Since terTelgte was representing himself and was held in contempt of court, he was not allowed to question potential jurors to narrow down the pool to six.

    After the jurors were sworn in, Riley called his first witness, Montana Fish Wildlife and Parks Warden Adam Pankratz. …

    and

    When Metcalf [the arresting officer] finished his testimony, terTelgte was not given the opportunity to introduce witnesses in court or cross-examine the prosecution’s witnesses.

    After 15 minutes of deliberation, the jury returned their verdict. TerTelgte was found guilty of both counts of obstructing a peace officer and resisting arrest. All jail time was deferred. He will have to pay the fines associated with the misdemeanor charges.

    Here's the Belgrade News link.

    What is still not clear from that account is whether Mr. terTelgte had appointed counsel, and whether his counsel was permitted to question prospective jurors, or to cross-examine witnesses, or introduce witnesses.

    I don't think that holding a defendant in contempt, and consequently refusing to permit him or appointed counsel to question prospective jurors, cross-examine witnesses, or introduce witnesses, should pass 6th Amendment muster regardless of actual sentence. Such abuse is almost the definition of a kangaroo court.

    But all the facts of the proceedings are still not clear, even from the Belgrade News report.

    ETA: I do not know what the Belgrade News report that "All jail time was deferred" actually means. Was he sentenced to a fine plus time served, or not?

  44. cpast says:

    These people actually show incredible faith in the legal system. They think that by making the right arguments and saying the right words, the courts will just exempt them from the laws. Under Clark's views (i.e. that the government is an organized band of thugs who will do whatever they please), the ultimate response to any argument they make is "Oh, you think you don't have to pay us money? Cute. We have guns. Pay up."

    @En Passant: Is there some way to allow defendants to cross-examine if they are being disruptive during trial? Maybe put them in a separate room with a two-way A/V feed, and turn off their microphone when they aren't allowed to talk?

  45. En Passant says:

    @En Passant: Is there some way to allow defendants to cross-examine if they are being disruptive during trial?

    1. Appoint counsel, and let counsel cross-examine.

    2. If defendant insists on acting as counsel, rule improper questions improper upon proper objection by prosecutor.

    3. If defendant's behavior continues to be purely disruptive, see (1).

    But don't just haul defendant away and conduct trial with no counsel for defendant.

    That slope is just too slippery.

  46. Shane says:

    @Doctor X

    As a former atheist I see where you are coming from as having merits. However, you are allowing your emotions to cloud your arguments. You will probably view what I am saying as an insult but it is not intended to be. When someone has flipped the emotion switch for w/e reason it is hard to point out that they have done that (though the snickers commercials do poke fun at it in a rather hilarious manner, if only the solution were as simple as handing someone a bar of chocolaty goodness). I would advise that you go back and read carefully what Clark has posted, you might find that you may have misread something because I am unsure what you responding to.

  47. Clark says:

    @Dr X

    It's a costume party you can be whoever you want to be here.

  48. Robin Bobcat says:

    I believe that Russel's Teapot is actually filled with hot cocoa, but nobody can tell, because it is inside the teapot.

  49. David says:

    Outside of a teapot, a volume of Russell is a logical atomist's best friend; inside of a teapot, it's too dark to read.

  50. Robin Bobcat says:

    And what is, exactly, the volume of Russel? Is Russel measured in quarts, cubic centimeters, or pink-haired troll dolls? Since the teapot is full of liquid (which may be hot cocoa – see above) should we instead be measuring displacement, and use nautical tonnage?

  51. CJColucci says:

    I don't acknowledge the legitimacy of the US government for Spooner-like reasons

    Nevertheless, it acknowledges yours.

  52. Ryan says:

    @Clark

    Technically, DoctorX's argument here is not argumentum ad ignorantiam.

    What he's saying is a strictly scientific rationalist argument based in the simplest version of the scientific experimental method: if there is insufficient evidence to support an experimental hypothesis, it is rejected and the null is instead accepted. Held to that standard, an experimental hypothesis that prayer "accomplishes something" is not supportable; a null that the experimental is false has to be accepted.

    This simplest form of the experimental scientific method accounts for options 3 and 4 (unknown at present / unknowable) as part of the null because it is an ongoing test. Therefore, argumentum ad ignorantiam does not apply to arguments based from it – there either is enough evidence to support the experimental at the moment of claim, or there is not. Acceptance of a null does not mean it is true, however; merely that there is not enough evidence to support the experimental. Used properly, hypothesis testing is perfectly valid and one need only consider experimental versus null because you can constantly reformulate new experimentals.

    That said, the reason why most people don't use the experimental method in religious debate is because its clearly unsuited to it. Any grade school student sufficiently versed in the scientific method can easily demonstrate that no religious precepts will survive hypothesis testing. It makes no sense to base a philosophical argument on an experimental test, so I don't know quite why DoctorX is going on at such length about it.

  53. Wayne Borean says:

    Never heard a Low Earth Orbitcalled a thug before…

    Wayne

  54. AlphaCentauri says:

    Whatever your personal religious beliefs, people who believe that prayer accomplishes things are not continuing a behavior despite it never having positive results. It's just a question of whether there is a causal connection between the prayer and the positive results. If you say that God would never allow children to die if someone were praying for them to live, the fact that children do die doesn't disprove the existence of a deity, only that the straw-man deity who takes orders for miracles like a giant Santa Claus in the sky doesn't exist. Few religious people believe in that type of deity, either.

    There are also cases where alternative explanations for cures have not been identified scientifically. Obviously, there aren't as many of those now as in the past, but they still occur, otherwise there could never be any new Roman Catholic saints:
    http://articles.philly.com/1999-10-08/news/25505528_1_robert-gutherman-mother-katharine-katharine-drexel

  55. Rhonda Lea Kirk Fries says:

    …so I don't know quite why DoctorX is going on at such length about it.

    I've never quite understood why some atheists make as much of a religion of their disbelief as the devout make of their belief. But they do.

    I wouldn't argue religion for all the chocolate in Russell's pot. I don't inflict my spiritual inclinations (or lack thereof) on others, and it makes no difference at all to me what they believe until they attempt to foist their belief on me.

    Just look at the pixels spent on this stupid thread hijack. Yeesh. What a waste of conversation.

  56. Dismoun says:

    AlphaCentauri, the Roman Catholics don't care about mundane explanations. If a particularly favored nun happens to touch a child being treated for a known treated cancer, and that child should happen to get better at the conclusion of treatment, the church is more than willing to attribute that 'miracle' to the sainted nun.

  57. Robin Bobcat says:

    In any case, BACK TO THE ORIGINAL TOPIC.
    I once had the displeasure of being the subject of one such sovereign citizen's ire. He had posted a long, incoherent rant on a convention forum about how horrible they were for demanding government-issued ID, and not accepting his 'Citizen of California' status on his say-so, blah blah blah.
    I hang out on another forum which occasionally deals with conspiracy nuts, and so I reposted it for the edification and amusment of my fellow forumites. The nutbar in question was apparently googling himself and followed me to the forum to give me a piece of his mind (not sure he could spare it..) and berate me for violating 'copyright'…
    Fun times there.

  58. Lizard says:

    Leaving aside beating the usual horses so dead not even Orcus could animate them, I'd like to bring up what might be a more interesting point, something I'd mentioned on another thread.

    Radicals of the left have their self-identity heavily tied into BEING radicals: They oppose The Man and everything he stands for (and their solution is to create an even bigger, badder, Man, who controls even *more* of everything, but that's another thread[1]). Thus, they take great pride in breaking the law, because the law is the product of the corrupt capitalist patriarchial yadda yadda whatever. Patriotism, nationalism, etc., are dirty words and downright insulting.

    Radicals of the Right, however, love Authority and Tradition and Order and The Way Things Ought To Be.[2] Their self-identity is heavily tied to being a "Good Citizen", to nationalism, to love of God And Country (which are usually one and the same thing). Yet, they find themselves continually opposed to the actual government of the actual country they live. Thus, they establish a form of cognitive dissonance, whereby they assert they are the only ones ACTUALLY obeying the laws, they are being good, honest, loyal and patriotic citizens — it's just that the entire country has been taken over by Commie Mutant Traitors. Thus, despite being as actually opposed to the law as it is, and the nation as it is, as anyone Occupying anything, their self-image as a Solid Upright Patriotic God-Fearing American remains intact.

    At least, that's my explanation, based on my in-depth studies of sociology and psychology, and by "in-depth", I mean, "I think I read half a Wikipedia article when I was bored a few years ago."

    Thoughts?

    [1]I never fail to find it hilarious that if I want to learn of every devious, despicable, cruel, evil, tyrannical, and heinous act committed by Uncle Sam, all I need to so is pick up, say, anything by Noam Chomsky or Harold Zinn… but ask them their solution to any problem, and their answer is always "Give Uncle Sam EVEN MORE POWER!". It's bind-moggling. "Power corrupts, but absolute power purifies absolutely."

    [2]Often confused with some imagined "The Way Things Used To Be", which was never The Way Things Actually Were. See [1] above.

  59. Doctor X says:

    @Shane:

    As a former atheist I see where you are coming from as having merits.

    If an unkind man I would inquire as to which god do you now believe in?

    However, you are allowing your emotions to cloud your arguments.

    Mistress Pot? Allow me the signal honour of introducing you to Master Kettle.

    On the contrary, I responded to the emotional outburst of Clark against another poster. No more, no less.

    It is really very simple: either he has evidence he admonished the poster for ignoring or he does not. It appears that he, and others who have subsequently groused at this revelation, does not.

    That rather is that.

    @Clark:

    It's a costume party you can be whoever you want to be here.

    I will confess the motley suits you very well. . . .

    @Rhonda Lea Kirk Fries

    I've never quite understood why some atheists make as much of a religion of their disbelief as the devout make of their belief. But they do.

    Do you still beat your wife? [She has no wife.--Ed.] Hush! I am parsing her fallacy!

    If an unkind man–see above–I would turn it around and demand to know why "some theist make so much of their belief as . . . blah . . . blah . . . THE ONE TRUE HEIR TO THE THRONE!"

    Rather this is what Clark did: he reacted emotionally against an observation. One should not do that. Emotions do not change observations nor reality. Nor do emotional appeals. Nor do fallacies.

    I will note, en passant, you should not declare others "atheist" or "theist" or any "ist" without actual knowledge. It is most unseemly.

    @Ryan:

    It makes no sense to base a philosophical argument on an experimental test,

    Actually, it makes a lot of sense to base philosophical arguments on experimental testing–see physics. I may not "like" the results of the Two Slit Experiment and all of that, but my "philosophy" better not contradict it.

    My "philosophy" may be like the Topic Person who wishes to "believe" the law in the US is what he wants it to be. Experimental evidence demonstrates quite otherwise. There are those who claim the US Constitution makes the IRS "t3h illegalz!!11"–how they vocalize the "11s" I can never understand.

    Experimental results–reality–indicate otherwise.

    And that is that. As Phillip K. Dick has been endlessly paraphrased: "reality is that which when you cease believing in it, will not go away."

    Despite the beliefs and prayers, the cancers "will not go away."

    –J.D.

  60. Doctor X says:

    . . . just as experimental results demonstrate I cannot figure out the quote function :(

  61. Robin Bobcat says:

    There are those who claim the US Constitution makes the IRS "t3h illegalz!!11"–how they vocalize the "11s" I can never understand.

    Back of the throat. Pretend you're a Speak'n'Spell.

  62. Christenson says:

    Hey guys—
    How come the claims and counterclaims in every US lawsuit end in a prayer for relief, and the judge usually grants just that to one or more parties if they don't settle by stipulation?

    Isn't that a form of prayer that often works?

    My Buddhist friends, of course, would tell you that the usual sort of prayer we discuss above works to the extent it is meditation that allows the mind to relax and concentrate upon achieving good things, possibly including that which is prayed for. Prayers aloud, of course, can be overheard and spur someone else to action.

  63. Matthew Cline says:

    it's just that the entire country has been taken over by Commie Mutant Traitors.

    And not only are they Commie Mutant Traitors, but they don't even have the decency to report to the nearest Termination Booth.

  64. Rhonda Lea Kirk Fries says:

    @Lizard

    Just want to mention that I find you vastly entertaining…and educational, besides.

    @Doctor X

    We do indeed have rupture. Your reply indicates that you either did not read or did not understand what I wrote. Rinse and repeat for every other commenter who has replied to you.

    That aside… Clark? Emotional? Ye gods. I'll admit that I've seen him appear to react emotionally in a single thread, but I've since come to the conclusion that the whole thing was probably a big old troll.

    It is a mistake to confuse the emphatic and resolute for the emotional. You'll never know what hit you.

    Also, re the quotes, see here:

    http://www.popehat.com/2013/10/02/blockquote-tags/

  65. James says:

    @En Passant  

    "Whatever one thinks of Mr. Tertelgte's absurd legal theories, a local Montana newspaper, the Belgrade News does report as fact some events that raise questions
    about actual 6th Amendment rights in his trial. If he was sentenced only to a fine, those rights do not apply, under Scott v. Illinois, 440 U.S. 367 (1979).
    But if he was imprisoned awaiting trial, and his sentence included time served awaiting trial as well as a fine, they may.

    My personal opinion is that Scott v. Illinois was wrongly decided. I do agree with Brennan's dissent that authorized or potential imprisonment, not just
    actual imprisonment, should trigger the right to counsel. But my view is that right to counsel should apply even if only a fine is authorized by the criminal
    statute. I simply do not want the state to have any opportunity to deny counsel."

    You might read Alabama v. Shelton. Shelton was decided after Scott:

    "…The question presented is whether the Sixth Amendment right to appointed counsel, as delineated in Argersinger
    and Scott, applies to a defendant in Shelton's situation. We hold that a suspended sentence that may "end up in the actual deprivation of a person's liberty"
    may not be imposed unless the defendant was accorded "the guiding hand of counsel" in the prosecution for the crime charged."

    As I read Shelton, authorized imprisonment therefore triggers the Sixth Amendment — even though activating the prison sentence is never attempted.

  66. HandOfGod137 says:

    @Rhonda Lea Kirk Fries

    I've never quite understood why some atheists make as much of a religion of their disbelief as the devout make of their belief. But they do.

    By this I assume you mean "why do atheists make such a big deal about it", which is a little disingenuous (we're not the people with huge buildings in every land and a bloke in a dress as our leader in his own country, just to take the catholics as an example). By any reasonable standard, the religious get more airtime.

    I can't speak for other atheists, but my personal concern with religion is that otherwise intelligent people are prepared to let the principles of empirical evidence and logical conjecture go out the window when they consider their deity of choice, which makes me wonder how trustworthy their other decision making processes are (or whether they should be allowed to use scissors, if the truth be told).

  67. James Pollock says:

    an experimental hypothesis that prayer "accomplishes something" is not supportable; a null that the experimental is false has to be accepted.

    Or it should be rejected outright, as not being factually accurate. Prayer does "do something", it brings comfort to troubled minds. There is a measurable difference in outcomes between medical patients who maintain good spirits throughout treatment, and those who do not. (I have a number of hypotheses why this might be true: Here's just one. People who maintain positive outlook are more pleasant to be around, meaning that the medical staff are more likely to spend time with the patient and thus are more likely to notice things that affect treatment rather than rushing through.)

    Thus, since prayer DOES measurably affect cancer patient treatment, all this talk about unknowable, unseeable effects does not apply.

  68. James Pollock says:

    "I can't speak for other atheists, but my personal concern with religion is that otherwise intelligent people are prepared to let the principles of empirical evidence and logical conjecture go out the window when they consider their deity of choice"

    By definition, faith works where empirical knowledge does not. Granted, the shepherds in the fields had a much smaller supply of empirical knowledge about the world, so faith expanded quite a bit to fill the void, and our modern understanding vastly expands the sphere of empirical knowledge. So know we know that, for example, trichinosis comes from undercooked pork, and not because God told us not to eat the cloven-hoofed beasts, and it turns out that bacon cheeseburgers are safe to eat after all (see your cardiologist, and offer void for Orthodox Jews and Muslims, one of the few things they agree on.)
    However, even with our vastly expanded (and continually expanding) body of empirical knowledge, there remain questions for which empirical knowledge does not exist, and faith fills in the gap for us. Some people fill in with faith that a supernatural deity explains things, some with belief that extraterrestrial intelligence(s) do, and some have faith that "there is a logical explanation for this", even if it isn't yet known. All rest on an equal basis of empirical knowledge, which is to say none, and are equally manifestations of faith (just of different flavors).
    At the risk of oversimplification, consider the difference between a postulate and a theorem in classical geometry. Postulates are accepted on faith, while theorems demand proof. You can build an inexhaustable supply of theorems, but those stubborn postulates are still required to make the whole thing work. By this model, there will always be a place for faith even in an otherwise rational, empirical system of proven facts.
    Science and the scientific method have faith built into them… a few things that are neither proven nor provable, but are required to make the scientific method work. Many do not recognize them unless they are pointed out.
    1. There are rules that govern the operation of the Universe.
    2. Those rules do not change.
    3. Human minds can discover and understand all the rules.

    So, circling around to the point of the quote I'm responding to: Suppose I offer a construction where the deity of my choice is responsible for implementing rules 1-3 above, but reserves the right to change or suspend them at His Own discretion. Discuss.

  69. En Passant says:

    James Dec 1, 2013 @3:33 am:

    As I read Shelton, authorized imprisonment therefore triggers the Sixth Amendment — even though activating the prison sentence is never attempted.

    I don't think so. As I understand Scott, by "authorized" Brennan meant "authorized by the statute under which defendant is charged", distinct from "by the sentence as imposed".

    In Shelton[1] a sentence of imprisonment was imposed, but suspended depending on compliance with terms of probation. Shelton could catch a VOP and go to the slammer.

    So my humble opinion remains about Scott.

    The Belgrade News article and video are also both ambiguous about whether Mr. Tertelgte[2] actually did have appointed counsel.[3]

    FN 1: Shelton came down after I stopped practicing anyhow. So, you kids get off my lawn![4]

    FN 2: Which I still can't pronounce.

    FN 3: Which is why much of this whole discussion is based on conjecture about facts.

    FN 4: If I had a lawn.

  70. Ben says:

    Just thought I would note on the whole science of prayer tangent. A rhetorical fallacy should not be confounded with a term of science or logic. The whole point of rhetoric is to convince, it is adversarial by nature. Despite the most thorough efforts of modern academics to infuse ego and drama into mathematics and science, they are still exploratory and collaborative. We're all seeking a more accurate model.

  71. TomB says:

    I can't speak for other atheists, but my personal concern with religion is that otherwise intelligent people are prepared to let the principles of empirical evidence and logical conjecture go out the window when they consider their deity of choice, which makes me wonder how trustworthy their other decision making processes are (or whether they should be allowed to use scissors, if the truth be told).

    It makes one wonder how any science was actually accomplished prior to the past century or so when atheism became something you were free to admit without penalty. And so many scientists were also religious believers.

  72. Ben says:

    Err… am I the troll, david? I see my comment didn't clear the autoblocker that time.

  73. Ben says:

    I know and respect the work of some scientist (and a mathematician) who happen to be fairly devout theists.

    If I happened to believe that ancient Celtic mythology is in fact the correct theological model for the universe, would the analysis algorithms/products I create become less accurate?

    The self evident (I hope) answer to this is no. If I am unnecessarily coupling between the existence or non existence of entities, the analysis will be flawed from the beginning. Similarly so, incorporating the existence or non existence of any extraneous entity into a hypothesis demonstrably weakens that hypothesis.

    Oh and David; my apologies, I didn't see my comment because my 'smart' phone truncated the comments page. Your note about trolls was where it seemed like mine had 'been' in the conversation… My bad. (Not that my question necessarily even registered).

  74. Noscitur a sociis says:

    1. Appoint counsel, and let counsel cross-examine.

    A court cannot appoint counsel if a defendant has competently exercised his right to represent himself, as this defendant presumably did.

    2. If defendant insists on acting as counsel, rule improper questions improper upon proper objection by prosecutor.

    3. If defendant's behavior continues to be purely disruptive, see (1).

    When a defendant makes it clear that he will attempt to be disruptive is he is allowed in the courtroom, a judge is not required to keep him there. See Davis v. Grant, 532 F.3d 132 (2d Cir. 2008); Clark v. Perez, 510 F.3d 382 (2d Cir. 2008); Torres v. U.S., 140 F.3d 392 (2d Cir. 1998). If the defendant had made it clear that he was willing to behave himself, then he should of course have been allowed back, but I think it's unlikely that A.) he would have been willing to do so, in light of his conduct in the video and B.) he would have had much chance to change his mind, in light of the short duration of the trial.

  75. Rhonda Lea Kirk Fries says:

    @HandOfGod137

    By this I assume you mean "why do atheists make such a big deal about it"…

    I knew it was a mistake to avoid the use of "proselytize" in my reply.

    No, really, I did not mean that atheists should not make a big deal about it. Someone has to take issue with the exclusionary presupposition that we, as a country, take for granted–"In God We Trust," indeed–and who better to do so than those who do not trust in God even a little bit?

    But the very reasonable demand to make room for those with alternate worldviews is not the same as haranguing believers to demonstrate the illogic of their belief.

    …my personal concern with religion is that otherwise intelligent people are prepared to let the principles of empirical evidence and logical conjecture go out the window when they consider their deity of choice, which makes me wonder how trustworthy their other decision making processes are…

    I trust in the decision making processes of those who recognize that the River of Normal is wide and that it takes all kinds to make a world.

    I don't care what your beliefs are as long as you have the good judgment to forego inflicting them on those who lack interest in what you have to say. The people I distrust are instead the ones who are so convinced of their own correctness that the self-control to put a lid on it is lost to them.

  76. Rhonda Lea Kirk Fries says:

    @En Passant

    FN 2: Which I still can't pronounce.

    tur TELL toe

    How you get that from "Tertelgte" is beyond me, but it's how he says his name.

  77. @Dismoun: thanks for the link.

    I was particularly impressed by this observation: "Sometimes an OPCA document may be so disjointed that the OPCA fingerprint motifs are only evidence that the author is *not* suffering from mental or cognitive disturbance."

    @Rhonda: for the record, and for what little it's worth, if you re-read the thread you'll see that it was actually Clark that started the argument, by disputing Lizard's matter-of-fact assumption that prayer has no effect. (It seems clear that Lizard wasn't trying to prove this, or to convince anyone of it, it was simply something that he takes for granted and which provided a relevant example of the matter at hand. As such, Clark's demand for evidence was gratuitous.)

    Which isn't to say that Doctor. X's hyperbolic response or the resulting mush was helpful, but FWIW.

    @Lizard re "Radicals of the Left" and "Radicals of the Right": LOL, excellent. Mind if I quote you?

  78. En Passant says:

    Noscitur a sociis Dec 1, 2013 @4:41 pm:

    A court cannot appoint counsel if a defendant has competently exercised his right to represent himself, as this defendant presumably did.

    A court can appoint advisory counsel, who will be available if defendant chooses to use him. All I've added is that courts should permit advisory counsel to examine witnesses if defendant is removed from the courtroom due to his own misbehavior.

    My view is normative, that is, I think that is what should be, not what actually is. I realize it isn't the position of the courts.

    I've read Davis and Clark, and I disagree with them on simple human moral decency grounds, not legal grounds. Legally the reasoning is, "SCOTUS hasn't ruled that we must or that we can't. So we won't, even though we agree it would be just, and we could if we chose to do so."

    As a legal issue, they're right. Just as nobody is required to prevent a stranger from stepping into traffic, so no court is required to do something gratuitously decent if doing nothing isn't contrary to SCOTUS precedent.

  79. En Passant says:

    Rhonda Lea Kirk Fries Dec 1, 2013 @5:43 pm:

    tur TELL toe

    How you get that from "Tertelgte" is beyond me, but it's how he says his name.

    Thanks! And my name is Ghoti, pronounced "Fish".

  80. @En Passant: don't you mean throat-wobbler mangrove? :-)

    That opens a whole bunch of other (probably trivial) questions. For example, does it make any difference whether the defendant was in fact able to competently defend himself? What if the defendant could have competently defended himself but chose not to due to a mistaken belief about the state of law, i.e., OPCA?

  81. Rhonda Lea Kirk Fries says:

    @En Passant

    I ate a ghoughpteighbteau for lunch.

    @Harry Johnston

    My interpretation of the exchange between Lizard and Clark differs from yours, but it's not relevant. My replies were made with respect to Doctor X's pretence to misunderstanding Clark's response and his subsequent temper tantrum.

    I get that way when my blood glucose goes low, so I'm wondering if perhaps he missed his dinner.

  82. Robin Bobcat says:

    EP:
    "No no… It's spelled 'Raymond Luxury Yacht'. It's pronounced 'Throat Wobbler Mangrove'."

    Oh nutbunnies. Someone beat me to it. *shakes fist*

  83. Noscitur a sociis says:

    As a legal issue, they're right. Just as nobody is required to prevent a stranger from stepping into traffic, so no court is required to do something gratuitously decent if doing nothing isn't contrary to SCOTUS precedent.

    It is undoubtedly true that in most cases a public defender or appointed counsel will do a better job of representing a criminal defendant than the defendant would be able to do proceeding pro se. Nevertheless, the Constitution gives defendants the right to not have lawyers appear on their behalf — even though, in almost every case, that is a poor decision, and even in cases where the defendants plan to object to the proceedings on political grounds rather than participating in the trial. Appointing a lawyer under those circumstances would be "decent" in the sense that it would probably generate better results for the defendants, but it would also be unconstitutional. (Note that in Davis, the defendant equivocated between objecting to and requesting appointed counsel — I strongly suspect that this defendant would have strenuously objected had the court attempted to appoint a lawyer on his behalf.)

  84. HandOfGod137 says:

    @Rhonda Lea Kirk Fries

    But the very reasonable demand to make room for those with alternate worldviews is not the same as haranguing believers to demonstrate the illogic of their belief.

    But does this actually happen to any great extent? (NB: I'm British, so there may be cultural differences I'm unaware of). To the best of my knowledge, rationalists generally only are seen as haranguing believers when educational standards are under attack (q.v. creationism) or when the separation of church and state is threatened. For the large part, I think we share the common view that as long as they don't try and impose their views on me, I won't take issue with how daft those views appear to be. Evangelism does appear to be a religious practice, however.

  85. En Passant says:

    Noscitur a sociis Dec 1, 2013 @9:38 pm:

    … the Constitution gives defendants the right to not have lawyers appear on their behalf …

    Note that I wrote "advisory counsel". I don't think the constitution bars appointment of advisory or standby counsel, even against defendant's wish not to be represented by counsel. Advisory counsel can be a potted plant sitting at the defense table, or elsewhere in the courtroom if defendant chooses.

    (Note that in Davis, the defendant equivocated between objecting to and requesting appointed counsel — I strongly suspect that this defendant would have strenuously objected had the court attempted to appoint a lawyer on his behalf.)

    If defendant is to be removed from the courtroom, then whether advisory counsel can then represent him in his absence should be the decision of the defendant, not the court. I don't think the constitution bars that either. The constitution simply does not mandate it.

    The legal reasoning of the cases you cited was not that the constitution bars these things, but that SCOTUS has not ruled that the constitution mandates them. Prohibition and absence of a mandate are two different things. The latter is permissive.

    I don't like even the appearance of kangaroo courts or railroad trials. The normative rules I've described are not constitutionally prohibited, just not constitutionally mandated. I think they would eliminate much appearance of unfairness, as well as actual unfairness, in issues of appointed counsel and pro se defendants.

  86. princessartemis says:

    @HandOfGod137, Do a little Googling for atheist good news. You might be surprised at how much evangelism your compatriots get up to.

  87. @Rhonda: well, being both from a different culture and lacking knowledge of any relevant prior debate between the protagonists, I could easily have misread their intent. In any case I agree there's no point in debating it, and that it isn't particularly relevant to your main point.

    @HandOfGod137: I may be mistaken, but it appears to me that US atheists are significantly more "evangelistic" (for lack of a better word) than elsewhere.

    I think this is partly due to cultural differences and partly due to the fact that US atheists are a minority group with a sense of oppression which may not be unjustified. (While not, of course, being so oppressed that evangelism would be as personally dangerous as it might be in some other parts of the world.)

    (See, for example, More Americans would rather their daughter marry a Muslim than an Atheist. Found in a Google search while looking for something else, results not guaranteed.)

  88. James Pollock says:

    "courts should permit advisory counsel to examine witnesses if defendant is removed from the courtroom due to his own misbehavior."

    On the other hand, if people are removed from the courtroom due to their own misbehavior, we could see that as waiving a right to participate in one's own defense, seeing as how misbehavior is a voluntary act.

    (Ah, you say, but what if the person hasn't misbehaved in fact, but only because the judge says so? Well, that would be an abuse of discretion, which is appeal-able. Winning that appeal gets you a new trial, with a different judge, and full opportunity to participate.)

  89. Taliesyn says:

    But does this actually happen to any great extent? (NB: I'm British, so there may be cultural differences I'm unaware of). To the best of my knowledge, rationalists generally only are seen as haranguing believers when educational standards are under attack (q.v. creationism) or when the separation of church and state is threatened. For the large part, I think we share the common view that as long as they don't try and impose their views on me, I won't take issue with how daft those views appear to be. Evangelism does appear to be a religious practice, however.

    It happens more than you might think. There is a movement called New Atheism that strongly argues that religion does SO much damage that it absolutely MUST be abolished in all forms. If you want an example, go check out Why Evolution Is True. Professor Coyne argues that point CONSTANTLY.

    Disclaimer: I am not a New Athiest. My own tendencies lean mostly toward Christian Agnosticism or even Christian Atheism.

  90. Rhonda Lea Kirk Fries says:

    @HandOfGod137

    princessartemis and Harry Johnston beat me to it, but I want to give it a go anyway, if only to complete the threadjack.

    Evangelism does appear to be a religious practice, however.

    Which is why I wrote: "I've never quite understood why some atheists make as much of a religion of their disbelief as the devout make of their belief. But they do."

    This for example:

    http://www.alternet.org/story/150399/%22spreading_the_good_news_about_atheism%22%3A_why_we_need_atheist_ad_campaigns

    Note that not all those ad campaigns are objectionable to me–just the ones that want to argue with the faithful about their belief. Also note that such campaigns were not what I had in mind when I wrote that line.

    As often as I have been harangued by Christians–my mother is born-again, and we no longer speak for this reason–I have been harassed by atheist no-longer-friends. None of them has cared one whit what I actually believe–if I did not fit their preconceived notions, I was fair game for conversion.

    I don't mind if someone wants to tell me how he sees the world. But I strongly object when that someone tries to jam his glasses over my eyes. Makes me dizzy and nauseated, and I don't like it one little bit.

    As for it being a cultural difference…I'm not so sure. The worldwide denizens of alt.atheism used to cause quite a stir when the more rabid members ventured into other groups. Most particularly when they decided it was a good day to troll Christians.

  91. rsteinmetz70112 says:

    New Atheists might be more accurately be described as Anti-theists.

  92. En Passant says:

    James Pollock Dec 2, 2013 @4:10 am:

    On the other hand, if people are removed from the courtroom due to their own misbehavior, we could see that as waiving a right to participate in one's own defense, seeing as how misbehavior is a voluntary act.

    That courts are permitted to use that excuse for removing the right to representation altogether was the given condition upon which my point was based. Courts apparently do have discretion to do that.

    My point again, stated in small simple words: The fact that one can do something does not meant that actually doing it is the right thing to do. One can gratuitously behave like a douchebag with impunity in many situations. That fact does not make the behavior morally right, or decent.

    That is why I find judicial reasoning such as "SCOTUS hasn't said we must or must not, therefore we won't" to be morally objectionable when courts are asked to do what is decent and choose to be gratuitously evil. What is legally permissible is not always what is right.

    What one chooses to do when nobody will hold you accountable reflects far more upon one's own character than upon the character of whom you it unto.

  93. Nicholas Weaver says:

    Wow, but wow…

    For further descent down this rabbit hole, look at the first video here from where he (and his friends) were protesting outside the courtroom:
    http://excoplawstudent.wordpress.com/tag/ernie-tertelgte/

  94. stavro375 says:

    At risk of derailing this conversation about athiesm…
    If I had to create a list of behaviors that make me lose sympathy for a criminal or civil defendant, item number 1 would be saying "The person the plaintiff refers to isn't me, because [grammar nitpick]". After watching that video, item number 2 would be getting into a shouting match with the judge.

    When someone is authorized to throw one in jail for pissing them off, one is often morally obligated to piss them off as a form of protest. But when that person is a judge? And they can do so because you're in court of law? There's sticking to one's principles, and then there's being a complete moron.
    As Ken would say… SHUTUPSHUTUPSHUTUP

  95. James Pollock says:

    That courts are permitted to use that excuse for removing the right to representation altogether was the given condition upon which my point was based.

    You insist on seeing something being taken away here. I see something voluntarily released. (Call me an optimist, but I'd bet money that the court offered defendant the opportunity to NOT behave like a jackass, quite likely several such opportunities, before dropping the hammer.)

    My point again, stated in small simple words: The fact that one can do something does not meant that actually doing it is the right thing to do.

    No argument with this formulation, either. I just see how it would apply to the court; I don't see a wrong here. Defendant is enormously stupid to waive the right to participate in a trial that can separate you from your treasure and your freedom, but it's his treasure and his freedom to so risk.

    One can gratuitously behave like a douchebag with impunity in many situations.

    Court is not one of those situations.

  96. Personanongrata says:

    Ouch, that hurt.

  97. SPQR says:

    Going back and reviewing the videos in the post and supplied by Nicholas … how did Montana end up arresting Robin Hood?

  98. AlphaCentauri says:

    Wow, how about this comment from the link Nicholas provided: "Truly, they are EX-sane. For to be IN-sane, if you know anything, you know that to be insane means you stand in a condition of full saneness."

    We have folks like him preaching on the street corners in our cities, too. Can we call them "mountain men" and make our statistics on homelessness look better? ;)

  99. En Passant says:

    James Pollock Dec 2, 2013 @4:38 pm:

    One can gratuitously behave like a douchebag with impunity in many situations.

    Court is not one of those situations.

    If you are the judge, it apparently is.

    Even crazy mass murderers who disrupt court are not convicted without witnesses against them being cross-examined; and witnesses for their defense are not barred from testifying on their behalf.

    I'm no fan of crazy pro se litigants. But I hold sacred the right of criminal defendants to cross examine witnesses against them, and to present witnesses on their behalf.

  100. James Pollock says:

    Even crazy mass murderers who disrupt court are not convicted without witnesses against them being cross-examined; and witnesses for their defense are not barred from testifying on their behalf.

    I'm sure that comes as great comfort for Khalid Sheikh Muhammed.

    I hold sacred the right of criminal defendants to cross examine witnesses against them, and to present witnesses on their behalf.

    So every time a defendant elects not to cross-examine a witness, or chooses not to call a witness, they are blaspheming you?

    You're STILL confusing "having something taken away from you" and "choosing not to do something".

    What I consider important (not sacred) is the individual's right to choose his or her own actions, even when those actions are stupid, self-destructive, and/or contrary to their own interests. You would have the court strip away this right to suit your own sense of moral indignation.

    You don't have a right to cross-examine witnesses. You have a right to choose whether or not to cross-examine witnesses. Mr. Throat-Warbler Mangrove chose not to. I don't think he made good choices, but I think those choices are his, and his alone, to make.

  101. babaganusz says:

    And all this about fishing without a license.

    "parking offense, schmarking offense, m'lud – we must leave no stone unturned!"

  102. @James: "You have a right to choose whether or not to cross-examine witnesses. Mr. Throat-Warbler Mangrove chose not to."

    Under the circumstances, I'm not sure it would be reasonable to say that he chose not to. The evidence suggests that he was not expecting his actions to have that consequence, so while he may have made a choice, it was not an *informed* choice.

    Whether that matters under law I have no idea. As a matter of principle though it seems to me that it should.

  103. Robin Bobcat says:

    The mark of any good argument is when the Monty Python quotes start appearing.

    "No it isn't."

    Shut up.

  104. James Pollock says:

    Under the circumstances, I'm not sure it would be reasonable to say that he chose not to. The evidence suggests that he was not expecting his actions to have that consequence, so while he may have made a choice, it was not an *informed* choice.

    I was not there. However, as I noted previously, I would bet money that the guy got a warning, and probably several, before the hammer came down. If not, you have an abuse of discretion, which can be appealed.

    Going further, it is true that people who go to court pro se may well make procedural errors that harm their own interests. But it is their choice to proceed pro se, and people have the choice to do things that are stupid and/or contrary to their interests. Countless people are doing that right now with regard to ignoring the advice of medical professionals. "I'd rather enjoy a bacon cheeseburger than uncongested arteries" is not all that different from "I'd rather make a point than very slightly improve my odds of winning a case". are not all that different, conceptually.

  105. James Pollock says:

    The mark of any good argument is when the Monty Python quotes start appearing.

    NOBODY expects the Spanish Inquisition!

  106. cpast says:

    @En Passant

    While the news article is unclear, he does say in the video that his duly appointed trial representative will appear on his behalf as he's being escorted out.

    Now, he MIGHT be talking about his bolo tie for all I know, but he's probably talking about some sort of lawyer.

    Also, the comments on that article are depressingly filled with people who believe the whole "you are immune to all laws because you say so" OPCA BS.

  107. En Passant says:

    James Pollock Dec 2, 2013 @9:07 pm:

    I'm sure that comes as great comfort for Khalid Sheikh Muhammed.

    I was unaware that Mr. Mohammed is being or has been tried. As far as I know he has only been charged.

    So every time a defendant elects not to cross-examine a witness, or chooses not to call a witness, they are blaspheming you?

    We don't disagree on the fact that the trial judge appointed advisory counsel.

    We don't disagree on the fact that the judge did not permit advisory counsel to examine witnesses on Mr Tertelgte's behalf when he was expelled from the courtroom.

    We don't disagree on the fact that the judge was within lawful discretion to permit, or not permit, advisory counsel to examine witnesses.

    I doubt that we disagree that Mr. Tertelgte is at best poorly informed about law; and that his behavior in court was less deferential than judges usually require of the parties before them.

    We only disagree on my opinion that the judge's discretionary choice to deny defendant's advisory counsel's examination of witnesses was simple douchebaggery; and that merely permitting him to examine witnesses would have avoided that appearance.

    Because we disagree on that point, you ask if I believe myself to be blasphemed by what you characterize as a defendant's informed choice.

    No, I am not a deity, nor do I think myself one, so nothing could possibly blaspheme me. You knew that when you asked.

    I do, however, recognize douchebaggery when I see it.

    I do not think that anything else I might say to you on the matter would be enlightening.

    I agree to simply disagree. I invite you to do the same.

  108. AlphaCentauri says:

    Was a jury present in the courtroom at that time? If so, the judge also has a concern with not allowing a mentally ill but harmless defendant do himself too much damage by prejudicing jury members unaccustomed to being in the same room with an unmedicated psychotic.

  109. Ken White says:

    I haven't done the reading and am completely unprepared and nothing I say should be taken to characterize the facts of this case, which I don't know.

    But FYI, there is a huge and detailed body of law about when and how and after what procedural safeguards a judge can remove a litigant from the courtroom and deny them various procedural rights as a result of their own in-court conduct.

  110. Ken White says:

    Also: in my experience, it's amazing how far you can get as a government official (whether judge or prosecutor) with a bit of formal courtesy and respect.

    I had a tax protestor defendant of the fringe-on-the-flag-makes-it-an-admiralty-court variety. I wrote him — through his attorney — a condolence note when his son died in a surfing accident. I didn't do so to achieve an effect, I just felt badly for him.

    He thanked me and after that he became willing to discuss the case with me and participated in the proceedings. As it turned out, he won — because he shrewdly chose a bench trial before a particular judge who believed that he didn't have the requisite intent under the Cheek standard.

    Yes, I lost to a tax protestor. But I lost because he decided to participate in the proceedings through counsel and testify and explain his views and state the sincerity of them, and the judge believed him enough to create a reasonable doubt. That might be a lesson for the you-have-no-jurisdiction-over-me types.

  111. @James: I would argue that the defendant was probably not able to fully understand the Judge's warnings. (Out of curiosity, what would have happened if the defendant was misbehaving because he was severely intellectually disabled? I don't think the situations are all that different in principle.)

    "I'd rather enjoy a bacon cheeseburger than uncongested arteries" is not all that different from "I'd rather make a point than very slightly improve my odds of winning a case". are not all that different, conceptually.

    I'm not sure I agree, because the consequences of eating a bacon cheeseburger are the result of inanimate forces, whereas the consequences of refusing the Judge's instructions are artificially imposed by the state. (My instincts say this makes a difference, but it may need more thought.)

    Also, your characterization of the defendants motives may be inaccurate; he probably wasn't trying to "make a point" but rather genuinely believed that his actions were the best way to win the case. For example, he may have believed that the Judge's instructions and warnings were lies intended to trick him into voluntarily conceding the case.

    Analogy: if a cult member wants medical treatment but is unwilling to enter a hospital or other medical practice, would it not be appropriate for a doctor to treat him somewhere else? (Assume for the sake of argument that this would not severely inconvenience the doctor or any third party.)

  112. From the link posted earlier:

    [633] Another alternative, albeit compounded by funding challenges, is to appoint an amicus curiae, as occurred in R. v. Martin, 2012 NSPC 73 (CanLII), 2012 NSPC 73 at para. 5. In that case the appointment was

    … not to represent [the Detaxer], but to assist the Court in ensuring that evidentiary, admissibility, Charter, general and specific defence issues, as well as other arguments that would promote the fair trial of Mr. Martin’s charges might be raised in Court at appropriate times. …

    (Of course that was under Canadian law.)

  113. James Pollock says:

    I'm not sure I agree, because the consequences of eating a bacon cheeseburger are the result of inanimate forces, whereas the consequences of refusing the Judge's instructions are artificially imposed by the state.

    I don't think "inanimate" means what you think it does, but I get your point.

    your characterization of the defendants motives may be inaccurate

    You certainly may be correct about this. Not only have I not done any diligent research on the subject, I haven't even done half-assed research. If only there were some kind of impartial observer there, on the scene, right in the courtroom, if possible, authorized to act based on direct observation of the defendant himself…

    For example, he may have believed that the Judge's instructions and warnings were lies intended to trick him into voluntarily conceding the case.

    There are different rules for persons who cannot understand the role of the court in their immediate future; such persons are deemed "incompetent" and not given control over their court proceedings. As Ken noted above, there are rules for this and those rules are both well-known and well-developed.

    Analogy: if a cult member wants medical treatment but is unwilling to enter a hospital or other medical practice, would it not be appropriate for a doctor to treat him somewhere else?

    Better Analogy: If a cult member declines medical treatment, but from our own perspective they would clearly benefit from it, may we substitute our own judgment for theirs on this subject, and deliver medical treatment to them?

    En Passant says yes, because he is offended when people go without medical treatment. I say no, because people are allowed to make their own choices, even when they choose poorly.

  114. @James: a helpful analogy; working out where it fails clarifies matters enormously. :-)

    Not providing medical treatment is an entirely passive choice, as is not cross-examining the witnesses. Continuing the trial was not. My argument is that if the trial was to continue without the defendant present, some measure should have been taken to mitigate the inherent impropriety of that action – such as allowing advisory council or an amicus curae to cross-examine.

    There is a critical distinction between representing the defendant and representing the interests of justice from a defendant's perspective. The latter does not, IMO, require the defendant's consent in order to be ethical, and it cannot (so far as I can see) cause the defendant's case any harm.

    For the record, though, I am not convinced that the defendant in this case should have been considered competent. I see no significant difference between being unable to make reasonable decisions because of a medical condition and being unable to make reasonable decisions because you've been brainwashed by an OPCA cult.

  115. cpast says:

    I do. The first one is actually being *incapable* of understanding what's happening. That's the standard for competency. It's not a question of whether you're making reasonable decisions, it's a question of whether you are even mentally capable of comprehending the situation.

    If you believe OPCA theories, there's a voluntary aspect – you chose to listen to them. I can listen to them and dismiss them as utter horseshit. That means anyone else is capable of doing the same. On the other hand, if I had a clinical disorder, I would not be capable of understanding the situation.

    More to the point, you choose to listen to OPCA people. If you voluntarily took some sort of powerful legal psychoactive drug, you might be not in your right mind, and kill someone while not in your right mind. The fact that you voluntarily took the drug pretty much means that that doesn't absolve you of responsibility. In contrast, if you're drugged without your knowledge, you have a much better claim.

  116. James Pollock says:

    Analogy: if a cult member wants medical treatment but is unwilling to enter a hospital or other medical practice, would it not be appropriate for a doctor to treat him somewhere else?

    a helpful analogy; working out where it fails clarifies matters enormously. :-)

    Under this analogy you offer, had they pursued exactly the same actions, only on the courthouse lawn rather than inside, everything would have been just peachy. I don't think that's accurate; you wanted a different process, not a different venue.

    The question at hand is, what do we do when a defendant says "I refuse to participate in the proceedings against me?". I think we can all agree that one answer we reject is that the trial must stop; the state does not need the consent of the accused to hold a trial. We rely on other mechanisms to prevent the state from imposing trials on people willy-nilly.
    So, do we proceed without the defendant, or do we substitute in someone else's judgment for the defendants in directing the defense? There is well-understood law on the subject of making this decision, and no sign that that law was broken in this instance. We have an appeals court to take care of things when our trial courts make errors of law.

  117. perlhaqr says:

    Cat: I disagree. People have accomplished quite a lot via prayer. None of it was what they were actually praying for, mind you, but it has made a lot of people feel better about how much crap they were wading through at the time and reinforcing the self-delusions that prevent the human race from succumbing to dark ennui and Robert Smith songs if they realized exactly how wretched they are.

    FWIW: As an anarchist who sometimes why he bothers fighting when the statists are clearly winning so handily, I think the same argument might apply to Mr Turtletoe. :)

  118. @cpast:

    If you believe OPCA theories, there's a voluntary aspect – you chose to listen to them. I can listen to them and dismiss them as utter horseshit. That means anyone else is capable of doing the same.

    I remain unconvinced; everything I've read about the brain suggests that your confidence that you could not be deceived in this way, while perfectly normal, is unjustified. Also, consider the following, equivalent, argument: "I am capable of fighting off a mugger. That means everyone else is capable of doing the same. [Therefore, being mugged was a choice.]"

  119. @James: no, you've misunderstood my medical analogy. Doesn't matter though; it was pretty feeble in any case, just forget it. You've nailed the important point once again:

    The question at hand is, what do we do when a defendant says "I refuse to participate in the proceedings against me?". I think we can all agree that one answer we reject is that the trial must stop; [...]

    It is true that I have not been arguing that the trial must stop. Regardless of this: (a) ideally, it should stop; continuing the trial without the defendant is definitely an impropriety in my opinion; and (b) in many cases it could stop; why not simply keep the defendant in custody until such time as he or she is willing to stand trial?

    So, do we proceed without the defendant, or do we substitute in someone else's judgment for the defendants in directing the defense?

    IMO, there should be someone looking out for the presumed interests of the defendant, even if the actual interests of the defendant cannot be determined. This would seem to be a reasonable measure to mitigate the impropriety of continuing the trial.

    I see no impropriety in appointing someone to represent the presumed interests of the defendant, even if this is against the defendant's wishes. (Note the subtle but critical distinction between representing the defendant and representing the defendants interests. The former would be improper without consent, the latter would not.)

    Note that if the defendant really does not want his or her interests taken into consideration, he or she retains the option of pleading guilty.

    There is well-understood law on the subject of making this decision, and no sign that that law was broken in this instance.

    It would appear, then, that the existing law on this subject is inadequate.

  120. James Pollock says:

    It is true that I have not been arguing that the trial must stop. Regardless of this: (a) ideally, it should stop; continuing the trial without the defendant is definitely an impropriety in my opinion

    Did you think this through? In any criminal trial, the defendant is an unwilling participant. If the rules are changed such that a trial cannot proceed unless the defendant agrees to be tried, there will never be another trial.

    (b) in many cases it could stop; why not simply keep the defendant in custody until such time as he or she is willing to stand trial?

    You don't think this rule would lead to abuse by judges? A judge could effectively sentence a defendant to life in prison by choosing to interpret any action (real or imagined) by the defendant as indicating an unwillingness to proceed.

    there should be someone looking out for the presumed interests of the defendant, even if the actual interests of the defendant cannot be determined.

    That someone is the defendant, assisted by qualified counsel. Note that if counsel acts contrary to the client's choice(s), this is misconduct which is punishable by the bar.

    Note the subtle but critical distinction between representing the defendant and representing the defendants interests.

    I am unable to distinguish between these two. I need more assistance in clarifying the difference.

    It would appear, then, that the existing law on this subject is inadequate.

    Or that it is working perfectly well, as intended. One of those two.

  121. If the rules are changed such that a trial cannot proceed unless the defendant agrees to be tried, there will never be another trial.

    If every defendant is willing to remain in custody indefinitely instead, perhaps not. I think that unlikely. Besides, all I said was that continuing the trial without the defendant is an impropriety. That does not mean that it might not be a necessary one.

    You don't think this rule would lead to abuse by judges?

    You mean, more so that the more-or-less-unlimited contempt of court powers they already have? I don't think so; it would, of course, be subject to review, and wouldn't apply in any case where a defendant is represented.

    there should be someone looking out for the presumed interests of the defendant,

    That someone is the defendant, assisted by qualified counsel.

    We were discussing the scenario where the defendant does not have council and has already been refused the right to represent his own interests. So this appears to be a non sequiter.

    I am unable to distinguish between these two.

    The defendant can be reasonably presumed to have an interest in ensuring that the trial is fair. [More accurately, that it is not unfair in the prosecution's favor; and in the unlikely event that the defendant does not want a fair trial, he or she can always plead guilty.]

    A lawyer does not need to represent the defendant in order to serve this interest.

    If it makes more sense to you, it could equally well be asserted that it is in society's interest to ensure that the trial is fair, regardless of the defendant's opinion. The appointment of a lawyer to serve this interest does not violate the defendant's rights, any more than the appointment of a laywer to prosecute does.

    (There must be somewhat analogous cases already; what about civil disputes where one party is in a coma or otherwise unable to communicate his or her wishes?)

    Or that it is working perfectly well, as intended.

    Well, it secured a conviction. Was that the intended result, I wonder?

  122. Oh – perhaps the simplest conceptual difference is that, if the jury thinks the defendant's representative is being an asshole, they're pretty likely to hold that against the defendant. If it's an amicus curae being an asshole, that would be daft, since they would know that the defendant neither chose nor instructed him.

  123. James Pollock says:

    You mean, more so that the more-or-less-unlimited contempt of court powers they already have?

    In the sense that contempt powers are limited. If a judge tosses you into the clink for contempt, you can apply to have another judge let you out. And the length of time a judge can hold you is limited, in any case. You've offered an althernative with no such limitations. No, thank you.

    "We were discussing the scenario where the defendant does not have council and has already been refused the right to represent his own interests. So this appears to be a non sequiter.

    It's not a non sequitur at all. Declining representation of counsel is a choice. If the defendant has made that choice (stupidly, almost certainly) that is the defendant's choice to make. I don't look kindly at attempts to override the individual's rights to make their own choices, because we (individually or collectively) disapprove of the choices made. The defendant is present to represent his interests. Most people are not experts in the workings of the justice system (Damn you, Law & Order!) so assistance of counsel is important, and defendant should not be deprived of that assistance because of anything other than consequence of his own choice(s).

    <blockquotein the unlikely event that the defendant does not want a fair trial, he or she can always plead guilty.
    Speaking of non-sequitur… "This trial is a travesty and this court has no authority over me! Therefore I'm going to plead guilty!"

    Seriously, there's a mismatch between what the defendant wants and what the general public, represented by the prosecutor, wants. The public wants to discover the truth. The defendant wants to avoid punishment (deserved or not).

    The defendant can be reasonably presumed to have an interest in ensuring that the trial is fair.

    As noted above, this is actually not what the defense counsel is present for. The defense counsel is present to obtain for the defendant every possible advantage, fair or not.

    If it makes more sense to you, it could equally well be asserted that it is in society's interest to ensure that the trial is fair, regardless of the defendant's opinion. The appointment of a lawyer to serve this interest does not violate the defendant's rights, any more than the appointment of a laywer to prosecute does.

    There IS a lawyer in the courtroom charged with maintaining the fairness of trial. Every trial has one, whether either party is represented by legal counsel or not. Problem solved!

    Well, it secured a conviction. Was that the intended result, I wonder?

    The purpose of a trial is to discover the truth. Are you contending that this has not occurred? I'm not advocating the position that the trial HAS obtained absolute truth, but rather the position that there's no evidence at present (that I'm aware of, see comment upthread about research)that it has not.
    So, IF he's guilty, then yes, obtaining a conviction IS the intended result.

  124. @James:

    If a judge tosses you into the clink for contempt, you can apply to have another judge let you out.

    Similar provisions would apply, of course. What made you think they wouldn't?

    Declining representation of counsel is a choice.

    Being kicked out of court isn't.

    I don’t look kindly at attempts to override the individual’s rights to make their own choices,

    But that's not what I'm proposing. Nothing I've suggested overrides or even undermines the defendant's choices.

    Consider: if the defendant isn't entitled to prevent the prosecutor from cross-examining defence witnesses, or to prevent the judge from instructing the jury, what makes him or her entitled to prevent an amicus curae from cross-examining prosecution witnesses?

    It would just be one more person working for the state, after all. The fact that this person is only considered necessary when there is nobody present to represent the defendant is irrelevant.

    "This trial is a travesty and this court has no authority over me! Therefore I'm going to plead guilty!"

    You've skipped scenarios. Mr. Throat-Wobbler Mangrove never said he didn't want a fair trial. (He also never said he didn't want anyone to cross-examine the witnesses.) The people who ought to plead guilty are those who are saying "I don't want a fair trial, really, make absolutely sure that nobody is allowed to try to keep me out of jail." For those people, sure, the proper solution is to plead guilty in the first place.

    The defense counsel is present to obtain for the defendant every possible advantage, fair or not.

    Yes, I mentioned that. I thought that made it clear that "fair" was going to be shorthand for "not unfair to the defendant"; never mind, in future I'll spell it out in full every time. (Sigh.)

    It is my (perhaps mistaken?) understanding that this does not apply to either amicus curae or to advisory council in the absence of the defendant. Their only purpose is to keep the trial from being unfair to the defendant, yes? So there's another clear difference between "representing the defendant" and "representing the defendant's presumed interest in a trial that is not unfair to him or her".

    There IS a lawyer in the courtroom charged with maintaining the fairness of trial. Every trial has one, whether either party is represented by legal counsel or not. Problem solved!

    Right, because that's worked so very well that no innocent party has ever needed assistance to defend themselves.

    Seriously, it's all very well in theory to count the Judge as a neutral party looking out for both sides, but not terribly realistic in practice, especially in jurisdictions where judges are elected.

    The purpose of a trial is to discover the truth. Are you contending that this has not occurred?

    Hard to say, since the witnesses weren't cross-examined. Oh, my guess is that he was almost certainly guilty, but that's not my guess to make now, is it? The point is that we can't be sure, because the prosecution was effectively unopposed in presenting its case. In my opinion, this is in itself damaging regardless of what the ultimate truth of the case may be.

    Perhaps this guy doesn't deserve a fair trial. But, as Ken might say, deserves got nothing to do with it.

  125. Fasolt says:

    Another Natural Law Devotee

    That's some fun reading although the handwritten comments can be hard to follow since Mr. Carr doesn't have any sense of the horizontal when it comes to writing.

  126. James Pollock says:

    If a judge tosses you into the clink for contempt, you can apply to have another judge let you out.
    Similar provisions would apply, of course. What made you think they wouldn't?

    The part where you said "If every defendant is willing to remain in custody indefinitely" kind of suggests you're advocating a system wherein defendants may be held indefinitely.

    Declining representation of counsel is a choice.
    Being kicked out of court isn't.

    Acting in such a manner as to be kicked out of your own trial is. Back to you…

    Consider: if the defendant isn't entitled to prevent the prosecutor from cross-examining defence witnesses

    But the defendant IS entitled to prevent the prosecutor from cross-examining defense witnesses, by the mechanism of deciding which witnesses to call and which to not call (including, of course, the most basic of defense witnesses, the defendant.)

    You've skipped scenarios. Mr. Throat-Wobbler Mangrove never said he didn't want a fair trial.

    When you decline to participate in your own trial, you are EITHER declining to participate in making sure it is fair OR you are declaring that there is no possibility of its being fair, so there's no point in dragging out the unfairness. Either way, expecting a guilty plea is ludicrous; the usual response is to refuse to enter a plea at all. This does not stop the machinery of prosecution from grinding, nor should it. Trials are not for the accused. They are for the public.

    I thought that made it clear that "fair" was going to be shorthand for "not unfair to the defendant"; never mind, in future I'll spell it out in full every time. (Sigh.)

    You still don't get it (sigh). The public wants the trial to be ACCURATE, that is, to generate the correct verdict. The accused wants to be found "not guilty", regardless of actual guilt. Say… the word "fair" did not appear in this paragraph until just now. (We want "fair" not because we want "fair" as a goal on its own, we want "fair" because we believe that it is the best way to achieve an accurate result. So whether your definition of "fair" includes conditions that are not "fair" in actual fact is pretty much immaterial to anything.

    another clear difference between "representing the defendant" and "representing the defendant's presumed interest in a trial that is not unfair to him or her".

    So, if these two things are in conflict with each other, which one is controlling? (If they can not come in conflict, then there's no point having both, as either one represents the other.)

    Right, because that's worked so very well that no innocent party has ever needed assistance to defend themselves.

    So, you're arguing my side now? If having an impartial third-party lawyer to look after the defendant's interests works, then there's already one present. And if it DOESN'T work, then IT DOESN'T WORK, and your argument that what is needed is an impartial third-party lawyer to look after the defendant's interests has failed. QED.

    Seriously, it's all very well in theory to count the Judge as a neutral party looking out for both sides, but not terribly realistic in practice

    So we can fix the problem by having the judge appoint someone? Seriously? If the judge is willing to disregard judicial ethics to favor the prosecution, the judge is also willing to appoint a special advocate who will sit on his hands. The only way to be sure the defendant's advocate is truly looking out of the defendant's interests is to have the defendant select his own advocate. And if the defendant selects "no advocate, thank you."…

    The purpose of a trial is to discover the truth. Are you contending that this has not occurred?
    Hard to say

    my guess is that he was almost certainly guilty

    That wasn't so hard to say, after all.

    In my opinion, this is in itself damaging regardless of what the ultimate truth of the case may be.

    The point of a trial is to determine the truth. To say that a trial is "damaged" regardless of what the truth is to ignore the fundamental purpose of the trial. If there's evidence that the trial reached an incorrect result (either a conviction of the innocent or an acquittal of the guilty), that's troubling. That does not appear the be what has happened here, barring evidence I'm not aware of. Evidence I'm not aware of is entirely possible (again, see discussion upthread about research). Note also that defendant/misdemeanant may introduce whatever evidence he'd like to the court of public opinion to argue that his conviction was unjust. To argue "well, I wasn't allowed to present evidence" is countered with "Fine. Present your evidence now" Mr. Throat-Warbler Mangrove has, apparently, AGAIN declined to present any such evidence, this time to the court of public opinion.

  127. @James: I believe we're approaching an impasse. Be that as it may:

    The part where you said "If every defendant is willing to remain in custody indefinitely" kind of suggests you're advocating a system wherein defendants may be held indefinitely.

    Only if that's their choice. You wouldn't want to interfere with their freedom to choose now, would you? :-)

    Acting in such a manner as to be kicked out of your own trial is [a choice].

    But it's not the same thing as declining to be present. I really don't understand how you can't get this. (For example, choosing not to give your wallet to a mugger is not the same as agreeing to get beaten up.)

    When you decline to participate in your own trial, [...]

    The rest of this paragraph is irrelevant, because that isn't what happened.

    The public wants the trial to be ACCURATE, that is, to generate the correct verdict.

    The public can cry for the moon all it likes. In the absence of a working brain scanner, the best we can hope to do is to assure that the trial is fair.

    So, you’re arguing my side now? If having an impartial third-party lawyer to look after the defendant’s interests works, then there’s already one present.

    If we could rely on the judge being truly impartial, your argument would work perfectly. In the real world, it falls down completely at this point. (Besides, the judge is busy enough already.)

    If the judge is willing to disregard judicial ethics to favor the prosecution, the judge is also willing to appoint a special advocate who will sit on his hands.

    The first is something that tends to happen without the judge particularly intending to or indeed noticing. The second would require active malice, and would be liable to challenge. (Do judges actually choose public defenders anyway? That doesn't sound right.)

    The point of a trial is to determine the truth.

    Bullshit. The point of a trial is to minimize the risk of an innocent party being convicted. "It is better that ten guilty persons escape than that one innocent suffer" – Blackstone's formulation.

  128. James Pollock says:

    If we could rely on the judge being truly impartial, your argument would work perfectly. In the real world, it falls down completely at this point.

    If we CAN'T rely on the judge being truly impartial, then we cannot allow the judge to select defense representatives, meaning your thesis is incorrect. Again, QED.

    Bullshit. The point of a trial is to minimize the risk of an innocent party being convicted.

    Now THAT'S bullshit, as only a moment's thought will show. If you want to minimize the risk of an innocent party being convicted, you don't hold any trials. Poof! No innocent party convictions. Or we could point out that we hold civil trials, where there is absolutely no risk of an innocent party conviction, because nobody is seeking one. We hold the trial to determine what the truth is.

    As for Blackstone, he's speaking relatively, not absolutely. He's speaking about choosing between two of four possible outcomes: He's not saying that having guilty go free is better than guilty being punished or innocent being acquitted, he's saying that if we have to have inaccurate results of trials (because humans are fallible), it's better to be inaccurate one way than the other. But Blackstone leaves unspoken the fact that it's better to be accurate than inaccurate, because it's so obvious a fact as to not need to be said.

    You've confused cause and effect. We hold adversarial trials because we believe that this is the best way to reliably obtain accurate results. If we followed YOUR flawed formulation, we'd never accept a guilty plea and plea bargaining would be right out. Since that's not what we observe, your model must not be accurate.

    Do judges actually choose public defenders anyway? That doesn't sound right.

    You're right, it DOESN'T sound right. Defendants can ALWAYS choose not to be represented by someone.

  129. James Pollock says:

    The point of a trial is to minimize the risk of an innocent party being convicted.

    The drive to work gave me time to think about this a little. I'd like to offer an analogy.

    I work in a factory. The factory contains many machines, most of which are capable of rending human flesh. The company offers many measures to keep this from happening… there are equipment requirements, processes intended to improve safety, and large numbers of wall posters encouraging people to be safe when in the factory. In fact, the company pays people solely to promote safety in the factory.
    From this, we can determine that the point of the factory is to minimize the risk of workplace injury.
    – OR –
    From this, we can determine that the factory has a purpose, but contains hazards to health and fortune, and therefore we incorporate safety measures to reduce the risk, or reduce the severity of injury if it occurs, just as the criminal justice system has a purpose, but contains hazards to health, fortune, and freedom, and therefore incorporates safety measures to reduce the risk of wrongful conviction. The purpose of the criminal justice system is to punish the guilty. The purpose of the trial is to separate the guilty from the innocent, and the highest priority of trial is accuracy, with other important factors being important, but not as important, as accurate results. (Such as being speedy, and being inexpensive for both the accused and for society as a whole) Trials are "fair" (using your definition) only because fairness serves the goal of producing accurate results.

  130. Tim says:

    One side note — the court officers showed remarkable restraint. If it were me; I'd have clubbed him like a baby seal.

  131. @James:

    If we CAN’T rely on the judge being truly impartial, then we cannot allow the judge to select defense representatives, [...]

    I've already addressed that – the scenarios are different – but in any case why does the judge have to select the amicus curae / advisory council in order for there to be one? Don't you have a civil service for that sort of task?

    We hold adversarial trials because we believe that this is the best way to reliably obtain accurate results. If we followed YOUR flawed formulation, we’d never accept a guilty plea and plea bargaining would be right out.

    Now that's an interesting point. I don't know why the US justice system diverged from its predecessors by introducing adversarial trials and plea bargaining. To the limited extent I feel entitled to any opinion at all, I disapprove. So perhaps what you're saying is more reasonable in a US context than it would be here.

    OTOH, if accuracy and truth were really the primary goal, you'd abandon juries. And since you assert that the judge is all you need to ensure fairness, there's no real need for defense lawyers either. In fact, since the purpose of the defense lawyer (by your own assertion) is to try to hide the truth you'd be better off without them.

    … backing up a bit: if the purpose of the trial is to produce an accurate result, and if the judge can be trusted to replace the defence's role when necessary rather than appointing someone else to do so, why in this particular trial was there no cross-examination? You can't get an accurate result without cross-examining witnesses, except by accident.

    (I don't know whether the jurisdiction in question allows judges to cross-examine. Some do. But if the judges goal was to arrive at the truth rather than, say, to just get the trial over with, he'd have either cross-examined himself or allowed the advisory council to do so.)

  132. James Pollock says:

    if accuracy and truth were really the primary goal, you'd abandon juries.

    This does not follow. Accuracy and truth really are the primary goal, and, um, we have juries.

    since you assert that the judge is all you need to ensure fairness

    That would be an example of the opposite of what I assert, which is that the only way to ensure fairness is to allow the defendant to choose their own representatives. (And to honor their choice even when we think that they choose poorly.)

    backing up a bit

    OK

    if the purpose of the trial is to produce an accurate result

    It is.

    and if the judge can be trusted to replace the defence's role

    And if the what now? WTF? Did you miss the part where, for about ten consecutive comments, I've argued that ONLY THE DEFENDANT should make choices about the defense's role, and YOU'RE arguing that the judge should take over that role by appointing counsel without the defense's consent, over their refusal if necessary. (i.e., capturing the role of the defense.)?
    I suggest you study ABA model rule of conduct 1.2. (1.14 is probably also of interest to you. You might also want to take a peek at 3.8.)

    I don't know what you think you're arguing against, but you've now made arguments that support my position (conclusively, I think) and followed that up by imagining that I'm arguing the opposite position of the actual position. No think you. My point is made, and further activity on my part only muddies the water.

  133. @James:

    This does not follow. Accuracy and truth really are the primary goal, and, um, we have juries.

    Then either you or the entire US justice system is more than a little confused. :-)

    the only way to ensure fairness is to allow the defendant to choose their own representatives

    And when, as in this case, the defendant's choice (himself) is rejected? (Note that he wasn't even offered the opportunity to appoint another representative after being told he would no longer be allowed to represent himself – the trial carried on immediately.)

    and if the judge can be trusted to replace the defence's role

    And if the what now? WTF?

    I quote: "If having an impartial third-party lawyer to look after the defendant’s interests works, then there’s already one present."

    Yeah, OK, I suppose I should have said something like "if the judge can be trusted to prevent the trial from being unfair against the defendant in the event that the defendant has been denied the right to represent himself and has not chosen a representative (or has not had an opportunity to do so) by, for example, cross-examining witnesses" … but honestly, I'm getting tired of spelling everything out to that degree of detail. If you aren't going to pay attention, what's the point?

    I don't know what you think you're arguing against, but you've now made arguments that support my position

    Say what? All I'm arguing is that there should always be someone keeping things honest. That didn't happen in this case, as demonstrated by the fact that the witnesses should have been cross-examined and weren't. While I'm not entirely sure what your position is, that certainly isn't it.

    It rather sounds as if you're saying: "Yes, the trial was unfair. But it serves the defendant right for not appointing a lawyer and for not following court etiquette properly." … which is sensible but unethical.

    However, I think it's more like: "Yes, the trial was unfair, but that's because the defendant wanted it to be." … which is ethical but not sensible, since the defendant didn't actually choose to be unrepresented.

    If you'd care to pick a position and argue the relevant points (most likely the question of whether choosing not to accept the judge's instructions is or is not equivalent to choosing not to have any representation) I'm happy to continue. Otherwise I think we've both had enough.

  134. James Pollock says:

    Then either you or the entire US justice system is more than a little confused.

    Or you are. I know which way I'd bet.

    It rather sounds as if you're saying: "Yes, the trial was unfair. But it serves the defendant right for not appointing a lawyer and for not following court etiquette properly." … which is sensible but unethical.

    Well, it SHOULD sound more like I'm saying "the trial was not unfair." The fact that you missed that suggests the source of your frustration.

  135. @James: Perhaps I've just read too much Rumpole and watched too much TV, but I'm doubtful that the inclusion into the decision-making process of those with (in most cases) absolutely no training or skill in reasoning can be helpful in seeking an accurate result. However, that's way too big and hairy a subject for me to attempt to debate, so I'll just note your disagreement for my future reference and move on.

    I've reread (well, scanned) the entire conversation and I really can't see anything that suggests to me that you believed the trial was fair. I suspect that we've been talking past each other because we're interpreting relatively simple words (such as "fair") in different ways.

    Out of curiosity rather than any attempt to persuade, am I right in concluding that you believe there was no need to cross-examine the witnesses in question? Generally speaking, I'd consider the right to cross-examine to be fundamental to both the fairness of the trial and to any attempt at an accurate result, but perhaps you disagree, or perhaps there is something about the particular circumstances of this case which made such a cross-examination irrelevant?

  136. Marzipan says:

    The stench of an undead pony that rises at irregular intervals to be beaten assails my nostrils.

  137. James Pollock says:

    am I right in concluding that you believe there was no need to cross-examine the witnesses in question?

    No. I believe that the person who should decide whether cross-examination is needed is the defendant, and your opinion on the matter (and mine) are irrelevant.

    Generally speaking, I'd consider the right to cross-examine to be fundamental to both the fairness of the trial and to any attempt at an accurate result

    Close, but not quite correct. Rather, it is the right to decide the nature and scope of cross-examination, which are required. Sometimes, the defense has no questions to put to the witness, and as along as the defense is the one deciding not to ask questions, then fairness and accuracy are not impeded.

    perhaps there is something about the particular circumstances of this case which made such a cross-examination irrelevant?

    I think the defense made two major errors, first in choosing not to be represented, and second, in choosing to ignore decorum. I honor the defendant's right to choose things, even if they choose things poorly (or differently that I would, which I consider the same thing).
    Imagine, if you will, a person who owns a car but ignores a mechanic's advice to change the oil periodically. It is certainly within their rights as owner to fail to change the oil and to ignore advice to do so, even though it's really good advice. However, I won't hear him complain later that it's somehow unfair to him that the car stopped working and left him stranded on the side of the road. The only unfairness at work is of his own making.

    Now, the flipside. Let us assume, for a moment, that the French government confuses me with Bob Dylan and charges me with angering the Croats by saying bad things about them (presumably, the French-Croats) and furthermore, indulges itself in some restitution extraordinaire to bring me in front of a French court.

    Now, I believe (I think quote rationally) that a French court has no jurisdiction over statements I make in America, while an American citizen, and thus I would reject a French court's authority to try me on charges related to such statements. I could attempt to prove that I'm not guilty, but participating in the trial in any way only provides legitimacy that I feel is not present. This means that the ONLY WAY my opinion can be represented is to refuse to participate, not even to provide a defense, because NEITHER a conviction NOR an acquittal is fair to me, or to others who may find themselves in my position. My interests would be damaged if someone else were to mount a defense to the charges over my refusal to participate.
    Of course, it's possible that my refusal to participate might lead, or help lead, to a conviction, and that would be unfair. But the unfairness of that situation arises not because of a failure to follow trial procedures, but because I never should have been tried in the first place. On the other hand, it's possible that my refusal leads to an acquittal, which is STILL unfair to me, because I was subjected to a trial and an interruption of my life that should never have happened. Either way, it is unfair to me and that unfairness has crept into the situation long before the trial even starts.

  138. @James:

    No. I believe that the person who should decide whether cross-examination is needed is the defendant, and your opinion on the matter (and mine) are irrelevant.

    OK. I generally agree with this, subject to various provisos, including that the defendant is competent and explicitly chooses not to cross-examine. I'm not convinced that the defendant in this case was competent, but also not convinced that he was not, so I didn't argue this point. I did argue the latter point; perhaps you missed the significance of this, or perhaps I missed your response.

    I think the defense made two major errors, first in choosing not to be represented, and second, in choosing to ignore decorum.

    OK. It is my position that neither of these constitute a choice not to cross-examine, any more than the choice not to give my wallet to a mugger would constitute consent to getting beaten up.

    I think this is the critical point over which we disagree. Does that sound right to you?

    My interests would be damaged if someone else were to mount a defense to the charges over my refusal to participate.

    For the record, I also disagree with this. As long as there is no deceit involved (i.e., the court record correctly shows that you declined to participate and that the defending lawyer was appointed over your objection) I see no objective way in which your interests are further damaged by such an appointment.

    I may be mistaken, but I believe there is in fact precedent in favor of such appointments, e.g., in UN prosecutions of war crimes?

  139. James Pollock says:

    It is my position that neither of these constitute a choice not to cross-examine

    No, but the combination does.

  140. SPQR says:

    Oooooo, look, tender tender horsemeat.

  141. AlphaCentauri says:

    @Fasolt
    Wow, quite a piece of work! And now I won't be able to get the image of his "kidknapping" out of my head, with him stuffed headfirst into a "knapsack."