Free Speech

How I Was a Criminal Defendant in a N.J. Harassment Case

"Eugene Volokh told the police he refuses to leave me alone."

|The Volokh Conspiracy |

For years, I've been writing extensively about criminal harassment laws (see, e.g., this law review article), and filing briefs in criminal harassment cases. But in April, my experience with harassment laws took a different turn—I learned that a criminal harassment case had been filed against me in New Jersey, under N.J. Stats. 2c:33-4(c):

[A] person commits a petty disorderly persons offense if, with purpose to harass another, he … Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

In theory, such a charge could yield up to 30 days in jail.

The criminal summons noted that the complaint had been filed by one Andrew Bonner, and it was based on his assertion that, "to the best of his/her knowledge, information and belief, [Eugene Volokh] … did,"

And as it happens, I was indeed mailing material to Mr. Bonner at his home address. The New Jersey state police did contact me at his behest and told me he didn't want me mailing such material. And I did tell them that I wouldn't stop (though, as you might gather, I also told them why). The facts in his allegations were thus basically correct—so far as they went—though the legal characterization (that the material was "harassing" and "threaten[ed] further cyber-harassment and slander") was not.

Now you might think that, before the charges were filed, the prosecutor would have looked into why I was troubling Mr. Bonner so, and whether I was indeed acting "with purpose to alarm or seriously annoy" and "harass" him (which is what the statute requires).

But it turns out that New Jersey is one of the few states that lets a private complainant start a criminal proceeding without a prosecutor's approval. All that is required is that a person file a complaint, and that it "appear[] to the judicial officer from the complaint, affidavit, certification or testimony that there is probable cause to believe that an offense was committed, the defendant committed it, and a Complaint-Warrant … or summons can be issued." And as you might gather, the judicial officer seems to generally operate just from the face of the complaint, without any investigation. (Prosecutors, for all that people sometimes complain about them, at least generally do investigate the complainant's accusations a bit before filing charges.)

And what the complaint didn't explain was why I troubled myself with mailing things to Mr. Bonner: Because I was required to do that by Federal Rule of Civil Procedure 5(a)(1), which provides that, generally speaking, any federal court filing "must be served on every party."

As I noted a few days ago in this post ("'Right to Be Forgotten' as to Court Opinions Rejected …"), I had moved to intervene in a case Mr. Bonner had filed, in order to oppose his attempt to seal any court order the court would issue in that case. He had filed the case pro se, so the address in the court files was his home address (and, as best I can tell, he wasn't registered for electronic court filing); I therefore basically had to either personally hand all my filings to him or mail them to him. A prosecutor, I presume, would likely have looked into this—if only by asking Mr. Bonner to show him the offending mailings, which are clearly service copies of court filings. But the judicial officer issuing the criminal complaint did not.

Thankfully, I am fortunate to know New Jersey criminal lawyer Steve Kaflowitz—as it happens, from when I filed amicus briefs supporting his position in a case before the New Jersey Appellate Division and New Jersey Supreme Court (State v. Burkert). That case, as it happens, was a successful First Amendment challenge to an application of … New Jersey's criminal harassment law.

Steve and his colleagues at Caruso Smith Picini, Tim Smith and Wolodymyr Tyshchenko, very kindly agreed to represent me pro bono. (Many, many thanks to them.) Thanks to their help, the prosecutor declined to prosecute—prosecutors in New Jersey have that power, albeit only after a citizen criminal complaint is filed—and the court dismissed the case. Indeed, thanks to their help, I didn't even need to fly out to New Jersey to appear in the case. At the hearing in late June (the transcript of which finally arrived Monday), the judge explained how little it can take in New Jersey to get the criminal charges initially filed:

THE COURT: Judicial officers have to look at probable cause statements or citizen filed complaints dozens of them monthly, if not weekly, and have to make determinations based on the limited amount of information provided and they are asked to do so with taking the complainant's words as 100 percent truthful and, unfortunately, given the limitations of time and resources, a lot—many times they are liberally reviewed and liberally construed and in this case, the probable cause was found.

And the judge also explained the factual reasons why the case had to be dismissed:

THE COURT: … Mr. Bonner, … not only must [Volokh] not stop sending them [i.e., these materials] to you, he is actually required by law to send a copy to you if any correspondence he sends to the Court because you have filed pro se. It is part of the Court Rules that stipulate that any party—any pro se party to an action must be copied so that they are aware of the correspondence, because it would be an unfair prejudice to you if you didn't know what your adversary was doing and you weren't getting notice of that.

If you were an attorney, it would be the same—the same rule would apply. The attorney must be copied any time a letter to the Court is written or a motion is filed or any action is taken in correspondence with the Court. That's part of the fundamental rules of Court and there's nothing that can—nothing that can be done to stop him from copying you on letters that he's addressing to the Court….

[T]he Court would never be able to find harassment given that the only correspondence that you have is legally required correspondence in terms of Mr. Volokh's participation in this—as an amicus in this federal matter.

This statement is slightly imprecise—I was participating as a proposed intervenor, not as an amicus—but otherwise strikes me as quite correct.

So all's well that ends well, again thanks to Messrs. Kaflowitz, Smith, and Tyshchenko; and I should stress that many people have faced wrongful charges that were much more perilous than the petty disorderly conduct charge that I was facing. Still, I thought it was an interesting story, and something of an illustration of how the New Jersey citizen complaint process can go (even if briefly and reversibly) off the rails. I can imagine how someone else in my shoes might have felt, if he didn't know local lawyers who were happy to help, and didn't know enough about the relevant legal rules to be confident that everything would turn out fine.

UPDATE: A reader offers a different perspective on private prosecutions:

The private prosecution practice carries on for two basic reasons:

[First, i]t works as a pressure-relief valve for the folks like your adversary Bonner, who definitely would not have listened to, let alone believed, anyone not wearing a black robe tell them about F.R.Civ.P. 5 and its vexatious mailing requirement.  Judge Smith down at City Hall hears his gripe and, from atop his high bench, explains "you got no reason to complain, so stop."  The black robe does it.

Second, it's a way around the mostly-former (but still extant) tendency of prosecutors and cops to look the other way when their cousin/brother-in-law/bookie* was causing trouble to some prole lacking political suck, and said prole decided to complain only to find official indolence provided no relief.  In other words, it's another relief valve to mollify the one-sidedness of Jersey Justice.

And I suspect that notwithstanding the occasional misuses, it will continue.  It comes up for reform every 2 years (the Supreme Court's committee to change the rules issues their changes every other year, right about this time of year) and maunders on….

*Or guy with a courtesy plate or, worse, crests on his plates. What, you never heard of "courtesy plates"?  Quick way for the cop stopping someone for a traffic violation to decide it's time for a warning only, or to determine fault in the accident before interviewing any witnesses (https://en.wikipedia.org/wiki/Vehicle_registration_plates_of_New_Jersey#Courtesy_plates). The lower your number, the more suck you have.

If you have a gold-plated bas relief reproduction of the state seal between the letters and numbers of your courtesy plate, you're a real player and you really have to be over the line for cops to mess with you.

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  1. “he is actually required by law to send a copy to you if any correspondence he sends to the Court because you have filed prose” but had you filed poetry, then perhaps not

    1. but had you filed poetry

      but had you filed verse

      1. Funny — corrected the “prose” to “pro se” (the glitch was in the transcript, I expect, and not in what the judge actually said).

    2. Okay, it won’t let me actually read the comments and just jumps me to the Comment field repeatedly, so:

      The link to the “right to be left alone (https://reason.com/2019/08/22/how-i-was-a-criminal-defendant-in-a-n-j-harassment-case/this%20post) post is dead.

      Now that I see the URL, I can see why.

  2. Private prosecutions are a tricky one. They are legal where I currently live, in the UK. (See the recent furor over the prosecution of Boris Johnson for the common law crime (!) of misconduct in public office. Comparative law aficionados might be amused to learn that this got resolved by Johnson litigating against the Westmister Magistrates Court in the High Court, rather than appealing the Magistrate’s judgment in the Crown Court.)

    But in the Netherlands, where I’m from and where I studied law, the only remedy for a crime victim who is unhappy by the prosecutor’s decision not to prosecute is a special complaint procedure in the Court of Appeals, which is rarely successful.

    I guess some kind of balance has to be struck between giving crime victims some recourse and not having to put up with all sorts of frivolous prosecutions. I guess if you’re going to have private prosecutions, having a quick avenue to get the court to dismiss the case (as in the OP and in the Johnson case), and the possibility of awarding costs would be useful elements.

    1. Perhaps the UK could have a panel of citizens – I guess that would be Her Majesty’s subjects – to screen out baseless charges before they get too far.

      But IIRC they abolished grand juries in 1933. Not a great year for liberty.

      1. One might say “barbarous” 😉

    2. I guess if you’re going to have private prosecutions, having a quick avenue to get the court to dismiss the case (as in the OP and in the Johnson case), and the possibility of awarding costs would be useful elements.

      A more knowledgeable person can correct me if I’m wrong, but the only provision I see in the New Jersey Rules of Criminal Procedure to get the case dismissed before trial is for the defendant to get the prosecutor to agree to dismiss it — which presumably Prof. Volokh was able to persuade his lawyers to do. As he notes, that’s an avenue that might be difficult or impossible for many people without the same established connections in the legal community. (I’m certainly not faulting Prof. Volokh for taking advantage of those connections — indeed, under the circumstances it seems like the reasonable and prudent thing to do — but it’s not an option for many people.) If a defendant can’t do that, or if the prosecutor decides to go forward with the case anyway, I don’t see any way a defendant can avoid being forced to stand trial.

      The solution, it seems to me, is to do what most states and the federal government have done, and vest the sole prosecutorial authority in public officials.

      1. If Eugene had not fought extradition; Does NY have to pay for his airfare to get him out there to stand trial? To pay for his return when Eugene wins? To pay for his lodgings during the trial period? I’m just wondering, since I have a friend in NYC and I can’t afford the flight or lodgings. Can I score a free trip, with some frivolous charge that my friend will drop once I’ve enjoyed my vacation?

        1. Crap. New Jersey, not NY. (I’m the 10,000th person to lament the lack of an edit button…woo-hoo!!!)

    3. Martinned – Up until around 1950, private criminal prosecutions were legal in California as well. California had a disincentive for bringing frivolous prosecutions. If the defendant was acquited then the person who filed the charges and prosecuted the case was subject to a large fine and half the jail/prison time that the defendant would have served if convicted.

      Does the U.K. have a similar disincentive (or any disincentive)?

    4. I thought this was the original point of a grand jury.

  3. I am a New Jersey attorney and I have seen first-hand how these sorts of complaints have been used to, well, harass people.

    One example: a police officer was terminated for misconduct. His termination was upheld by a trial and appellate court. He then initiated a criminal complaint against a key witness against him, accusing her of “perjury” (even though the courts had found her credible). Fortunately, the prosecutor intervened before the “accused” had to expend time and money defending herself.

    A former client of mine was just hit with a criminal complaint of “official misconduct” brought by a disgruntled former employee who had brought two previous lawsuits and had lost each.

    The privately-initiated criminal complaints tend to be non-indictable “offenses” (what other states call misdemeanors) brought in municipal court, which are courts of limited jurisdiction that serve predominantly as traffic courts and do not try indictable “crimes,” (what other states call felonies). Fortunately, our State Supreme Court is in the process of initiating municipal court reforms; hopefully they will address this issue.

    Otherwise…welcome to New Jersey, Professor.

    1. I’d actually be okay with this practice if it came with a credible loser-pays system. I think having to cough up for the legal fees would be an adequate deterrence to abuse.

      1. Then at least you would only have to worry about vexatious paupers.

      2. Rossami – In California, the deterrence was a large fine if the defendant was acquitted plus having to serve half of the jail/prison time the defendant would have been sentenced to had he been convicted.

        Now that only the state can criminally prosecute, prosecutors have “absolute immunity.”

        I have long been in favor of eliminating absolute immunity and returning to private criminal prosecutions.

  4. This story speaks for itself, but I can’t help myself.

    What about the collateral consequences of an ongoing criminal proceeding. Suppose EV had been nominated for a judgeship, or had applied for a security clearance or simply signed up for TSA Pre-Check. Presumably, this BS would’ve shown up in a search of his “criminal history”, with who knows what further ambiguities and risk of error.

    The idea of a private criminal prosecution is appalling. The reality, as EV rightly makes clear, is even worse – you get single-minded zealots unburdened by the political accountability of public prosecutors. Worse, the system is basically set on autopilot until the defendant/victim can intervene! Ideally, magistrates would scrutinize ALL criminal complaints thoroughly, but realistically, they are going to take shortcuts – such as assuming that the local cops and prosecutor are not spinning a story from whole cloth. Perhaps, just as pro se pleadings are in some jurisdictions more carefully reviewed (and assisted), private criminal complaints should not enjoy the presumption of regularity that informs review of public ones.

    1. I have long hoped that EV be nominated for the Supreme Court.

    2. Yeah, that was my immediate thought. Does this privately instituted proceeding have the same effect on a person’s criminal history as an ordinary case? That seems ridiculously ripe for abuse. Even if the person is able to get the case dismissed right away, they could have a lot of damage caused. Opponents of a political figure could file charges against them during a campaign so they can argue the person is a criminal, an ex could file or have friends file charges to get a leg up in divorce or child custody proceedings, etc.

    3. adamscales – What color is the sky in your world?

      The courts have given themselves and prosecutors “absolute immunity.” They have given police “qualified immunity” with such a high bar, it is almost impossible to distinguish it in fact from absolute immunity.

      There is no accountability of public prosecutors (or judges or police). A return to private criminal prosecutions would be a good thing. I would begin slowly with the return of private criminal prosecutions against prosecutors, judges and police, and without the fines and jail/prison times a failed private prosecution entailed back when it was legal in California.

  5. I came up with a scheme to make private prosecutors more accountable. First off, loser pays all costs, both court and whatever the winner spent. Second, no one can file a private prosecution for less than what they owe as outstanding verdict debt. Of course, all one has to do is inflate the damages above that value, but that would eventually backfire as perjury for lying about estimated damages.

    I thought of it as a modern more graduated form of the ancient Olde English outlaw status.

    IANAL, obviously 🙂

  6. Prof. Volokh – Not that you would be inclined to use it, but is there a possible counter claim action for filing a fraudulent/misleading complaint in NJ?

    I understand that normally, court filings by themselves don’t directly lead to counter claims, but I can also think of Anti-SLAPP motions as being an exception.

    1. I cannot speak for all anti-SLAPP laws, but most of them do not authorize a “counter claim action” but simply the ability of the defendant to recover costs and fees if the plaintiff cannot meet the burden of showing that his/her claim has some merit. So, it works similarly to Rule 11 in federal civil litigation and the suggestion made by the previous commenter (whose name I could not begin to spell with my keyboard).

      1. Cut-and-paste, my friend. Cut-and-paste. 🙂

  7. “…unfortunately, given the limitations of time and resources, a lot—many times they are liberally reviewed and liberally construed and in this case, the probable cause was found.”

    Seems like this would result in a greater waste of time and resources. I wonder what percentage of private complaints are found to be so lacking in merit. A minimal amount of due diligence in this case would have avoided wasting the time of the court and attorneys.

  8. Very interesting. It reminds me of a squatter tactic used in Miami that I heard about yesterday.

    The squatter writes a deed listing himself as both seller and buyer of the property. (Avoiding forgery for signing someone else’s name.) He then files the preposterous deed with the local county clerk or registrar of deeds. When he is discovered squatting, the existence of the deed make it a civil matter, rather than criminal trespass. The clerks only check for signatures, they do not read the content of the documents.

    The common thread with your case is insufficient critical scrutiny of the documents being filed.

    1. I see how that avoids the forgery problem, but at the expense of opening oneself up to a criminal fraud prosecution.

      I’d probably stick with the trespass complaint.

      1. Fraud would do it. Obviously, the only reason these squatters get away with it again and again, is apathy from the DA’s office.

        With no criminal prosecution, homeowners are forced to use civil actions. That takes months and large legal costs. The squatters eventually lose, but they are not punished, and they move on the to next house immediately.

  9. Professor Volokh….If you think this is the worst that The People’s Republic of NJ can do….come and observe our legislators ‘make law’ and NJ Supreme Court interpret aforementioned ‘made law’ for a few months. I promise you, it would be entertaining, and would provide you with endless material. 🙂

    Happy to see your case worked out Ok.

    1. Lest we forget, the good Professor is in the People’s Republic of CA. Where they protect illegal foreigners from citizens and legal foreigners. Is that not endless material? 😉

  10. I wonder if Prof. Volokh thinks his situation is unique. It’s damn sure not.

    So Bonner is now in the NJ Court of Appeals thrashing it out per se, i. e., without a lawyer, chasing a windmill and making a fool of himself, when Prof. Volokh formally asks in writing to appear in the case.

    Bonner, who is every bit as verrückt as Marty Grist…and as butthurt, decides this is criminal harassment and apparently has NJ police notify Volokh not to send any more mail to Bonner. But Volokh, required to send Bonner copies, continues to do so.

    North Carolina has a similar primitive system whereby a person can run to a magistrate and have a spite warrant issued against a target and have him arrested.

    In addition, in NC if a person such as wacky Marty Grist has a restraining order, and she has been known to obtain these frightening sanctions against at least 3 different defendants — even patently frivolous and malicious restraining orders — she can run to a deputy clerk and have an order issued and served on the defendant requiring him to attend court and show cause why he should not be jailed for as long as 6 months and fined as much as $500 for contempt of court.

    Marty Grist’s first effort she filed, so far as is known in Buncombe County (Asheville), to have the defendant dragged to jail the very day and almost the very hour he was being served with the TRO, so it is not possible for the defendant to have been in contempt of a TRO of which he was unaware. Is it?

    But nevertheless, the crazy bitch ran to the courthouse and had her defendant ordered to attend court and show cause to the presiding judge why he should not be punished for contempt… for misbehavior she said had occurred before he even knew he had been restrained. So the show-cause order being an absurdity was dismissed by the halfwit, Julie Kepple. Surprisingly.

    Then Marty Grist, not to be discouraged, shortly drops another bomb on the defendant. While he is appealing the permanent NCGS 50C restraining order issued against him by the shallow-pated feminist judge, Julie Kepple, he is required to mail to Grist’s home address (since she has no lawyer) all his filings with the North Carolina Court of Appeals.

    Marty Grist then, believing she has a bulletproof case, scurries to the courthouse and again files her affidavit under oath on the VAWA form provided and has the defendant cited for contempt:

    Apparently the only handwritten words of Martha Grist are “have mail
    to see, lots of it!” and then appear the handwritten words after “The
    defendant has willfully violated that Order by” and here are the
    handwritten words which follow:
    “continues to send mail, which is a form of communication; and is
    prohibited by the restraining order that is in place.”

    Go to the courthouse in Asheville, pull the file, and see what happened. This is a small fraction of it.

    And no, this defendant did not have any attorneys volunteering to represent him. And yes, it’s the ride, not the rap: 7 total efforts to jail the defendant which included two cyberstalking warrants (brutal arrests, bookings, muggings, fingerprintings, and DNA collections), an order of arrest for failure to appear, three show-cause orders, and another show-cause order dismissed before it was served. All of these criminal charges were dismissed with prejudice.

    A transcript of the prosecuting witness, Marty Tackitt-Grist, in the last cyberstalking case before a district court judge may be read in alt.appalachian. Cross-examined by the judge, she admits to doing and saying things in that case which are direct evidence of lying under oath. And these were not little white lies. These were _material_ lies.

    1. This clearly falls into harrassment territory. You would think the judges involved would be angry at being pawns of someone’s personal vendetta.

  11. Lawyers represent each other pro bono, while the rest of us get cartel colonics.

    1. To be fair; Eugene has spend hundreds (thousands??) of hours of his time donating his legal expertise to help in cases he believes in. I will not begrudge him getting 5-20 hours of free help. A pretty damn small return, methinks.

      1. Yes, I agree. I owe him a big wad of folding money for the quotes and the treatise I cited in my motions in the last of two cases of cyberstalking. The article,
        _One-to-One Speech vs. One-to-Many Speech, Criminal Harassment Laws, and “Cyberstalking”_
        scared the hell out of the prosecutors and judge and was, I am certain, a major reason why the case was tossed.

        I’m not exaggerating at all when I declare he’s saved a lot of innocent skins with his writings and court appearances (as in Matthew Chan and Robert Bishop) on freedom of speech. He’s a national treasure. He’s just great and so is Prof. Aaron Caplan who wrote the bible on nondomestic restraining order law. I cannot thank these two scholarly men enough.

    2. Yeah, and mechanics help out fellow mechanics, and carpenters help out fellow carpenters, and so on and so on. What’s your beef? If a lawyer does a favor for a fellow lawyer, does that mean he’s not entitled to have paying clients?

  12. Prior to World War II, most criminal prosecutions and arrests were private, that is how law enforcement worked in this country and in England.

    Off and on over the years, I have tried to pin down when it was exactly that California did away with private criminal prosecutions. From a 1991 California Supreme Court decision, it appears to have taken place by 1950/1960. In any event, that decision held that crime victims have absolutely no say in any aspect of a criminal prosecution or sentencing. That Court took the position that there is no such thing as crimes against individuals, all crimes are crimes against the state.

    Regardless, in 1910 California, private criminal prosecutions were the norm.

    Unlike today, where government prosecutors are entitled to “absolute immunity.” A private person prosecuting a crime in which the defendant was acquitted would have to pay a large fine ($500/$2,500) and could be sentenced to serve in jail/prison half the time that the defendant would have served if convicted.

    I don’t know what the punishment was for a private prosecution of a person acquitted of murder.

    You aren’t going to find any of this in contemporaneous court decisions because decisions tend not to comment on what goes without saying.

    But you can read about them in contemporaneous newspaper reports at the time. The Los Angeles Examiner is one such source. For California in general, https://cdnc.ucr.edu/ The California Digital Newspaper collection is an excellent source.

    I recall one newspaper article from the late 1870’s in San Francisco where a man was turned away from jury duty because he brought his rifle. The press ridiculed the man for his old fashioned clothing, old fashioned gun, and old fashioned ways.

    There is much one can learn if one looks beyond precedents and the world we live in today.

  13. I have to say I’m starting to feel a bit sorry for Mr. Bonner. Losing his original case really wasn’t the end of the world. But his efforts to continue fighting about it seem to be digging him deeper and deeper into a hole, piling up more consequences, making more enemies, probably attracting more publicity, and making things more and more difficult for himself.

    The judge sounds like he has a certain amount of experience explaining things to cranks. And it sounds like he needs it. It may be that part of the purpose of the exercise is to enable the cranks to exercise their crankiness through civil means and get heard and get things explained to them and mollified by judges, thereby the risk of their becoming violent. Maybe it’s not such a bad institution after all. It may not seem rational, but it’s not like people are always rational either. Maybe it’s not such a bad way, over centuries of human experience, to deal with irrational people.

  14. I was sure this must be long overdue blowback for the grotesque harassment Eugene inflicts with his excuses for bastardizing “literally” and “begs the question.”

  15. Judges of the Municipal Court of Seattle have declined to allow citizen criminal filings, concluding that the process violates the separation of powers doctrine.

    1. In NJ, the complaint must be accepted but cannot be filed except with the approval of either a judicial officer, such as a court clerk, or a judge. That, I would guess, takes care of the separation-of-powers problem, although I don’t understand why allowing a citizen to file a criminal complaint would give rise to such a problem.

  16. I realize ‘loser pays’ systems are not unheard of even in the United States, but Charles Nichols’ incarceration of ‘victim/complainants’ seems downright Game of Thrones-ish.

    1. BrotherMovesOn – The very first legislative acts of California made perjury/subornation of perjury which resulted in the conviction and execution of an innocent person punishable by death. These very same set of laws made persons who “rescued” prisoners criminally liable for the criminal acts the escapees might subsequently commit.

      I am not an expert on “Game of Thrones.” I am aware that it was a TV series about a girl and her dragons. That said, the system we have today where prosecutors and judges are absolutely immune from both criminal and civil prosecution is an Orwellian system.

  17. Why didn’t the court require the “harassing letters” be attached to the complaint as an exhibit? One glance at the first page of any of them would have revealed to the judge that the complaint was inaccurate by omission, to say the least.

  18. Media attacks on EV as “onetime criminal defendant” to begin in 3, 2, 1…

  19. Not particularly my business, but when you’re named as a defendant in a criminal case, do you have to inform your department chair?

    (I’m asking just because I’m curious, along the lines of “collateral consequences” commenter adamscales mentions above.)

    1. I don’t think there’s a rule requiring that — but I did do it. (I also alerted the firm for which I’m a part-part-part-time consultant.)

      I should note that deans realize that faculty research sometimes makes enemies, and enemies can levy all sorts of charges. Good deans can tell significant allegations from spurious ones; and my dean is a very good dean. At the same time, I’d expect that deans would like their faculty to give them a heads-up about such matters, so they don’t get blindsided if the matter goes public.

  20. California 1948: neighbor steals neighbor’s
    lawn mower. Police decline to proceed.
    Lawnmower-less citizen proceeds, the lawnmower-thief is somehow aquitted, and the victim-of-lawnmower-theft has to serve jail time? Thank you Charles Nichols, that’s one of the more bizarrely interesting factoids I’ve read here recently.

    1. BrotherMovesOn – Were there lawnmowers around in 1910? If so then yes, that was a reality of California law in 1910. By 1948 it had become impossible to bring a private criminal prosecution in California, which makes the question as to whether or not a failed prosecution entailed any punishment pretty much moot.

      The “law” has changed much these past 100 years. Here is an excerpt from an article I wrote in 2010,

      The Law in Los Angeles – 1910 v 2010

      One hundred years ago, before the City Club of Los Angeles, a Democrat candidate for the California Supreme Court gave an address on “Needed Reforms in the Criminal Law”. He is identified as Judge W.P. Lawlor of San Francisco. In short, he argues for throwing out Constitutional protections of the rights of an individual because they are no longer necessary.

      Lawlor concedes at least that his changes would require the Constitution to be amended unlike his modern cohorts. I will summarize a few of his positions based upon his speech.

      Trial by Jury – This language is too general. Nine people should be sufficient to convict in criminal cases except for capital cases which would still require a unanimous jury. In California, a defendant had the right to a change of venue, to have his case tried in a jurisdiction where the jurors would not be biased against him, Lawlor would require the jury in the new venue be comprised of jurors from the old venue, in effect, negating the purpose of a change of venue.

      Double Jeopardy – In 1910, the prosecution had one opportunity to prove his case. If there was a mistrial or the verdict was overturned, the defendant could not be tried again. Lawlor got his way on this point. Absent a unanimous acquittal by a jury, the prosecution can retry as often as he wishes. Appellate Courts routinely remand for a new trial instead of releasing the convicted. In the example of a man having been found not-guilty of manslaughter, Lawlor believed the prosecution should be able to turn around and try him for Murder of the same person. Lawlor also proposed eliminating juries for mistrials and retrials instead of the new trial placing the parties in a position as if no trial had occurred.

      Self Incrimination – If a defendant speaks in his own defense the prosecution should be allowed to say whatever it wishes, unrelated to the case, concerning the defendant’s habits, occupation, source of support, his domestic and other relations, and prior criminal history (short of felony convictions).

      Theoretically, Judges are prohibited from telling juries what the facts of the case are – When giving jury instructions, Lawlor wanted judges to be able to tell the jury what they should believe the facts of the case are. Since the judge is already telling the jury what the law is I’m not quite sure what the purpose of a jury was in Lawlor’s mind. A judge telling the jury these are the facts and this is the law is pretty much acting as the jury already.

      Limit the right to appeal to a few narrow questions – In other words, the right to appeal is effectively eliminated.

      Limit the right to object to a few narrow points – Today, appellate courts only decide cases based upon what was raised at trial. If a defendant does not raise a defense he is almost certainly excluded from raising it after conviction. Limiting what a defendant can object to also limits his basis for appeal which is great if one is a prosecutor who doesn’t care about guilt or innocence but not so great for the defendant.

      1. …continued:

        The Law in Los Angeles – 1910 v 2010 Part 2

        One hundred years ago, before the City Club of Los Angeles, a Democrat candidate for the California Supreme Court gave an address on “Needed Reforms in the Criminal Law”. He is identified as Judge W.P. Lawlor of San Francisco. In short, he argues for throwing out Constitutional protections of the rights of an individual because they are no longer necessary.

        Lawlor concedes at least that his changes would require the Constitution to be amended, unlike his modern cohorts. I will summarize a few of his positions based upon his speech. This is Part Two of my summary.

        Juror Disqualification based upon bias – In 1910 if a juror, based upon what he read in the paper or what he heard from others, forms an opinion on the guilt or innocence of a defendant he was still qualified to sit as a juror provided that he “act fairly and impartially on the issues to be tried.” Today, short of a juror coming right out and telling the judge that he thinks the defendant is guilty/innocent because of what he read in the paper or saw on television, the juror will not be disqualified. Lawlor wanted his jurors to be completely ignorant of a case, both as it pertained to a particular defendant as well as to the subject matter at hand. In a sense, he has pretty much gotten his way. Any intelligent person who has ever been forced into jury service knows that jury pools are comprised of disproportionately ignorant persons. Beyond ignorant they are stupid. A prospective juror who actually is an expert in a particular scientific discipline can be excluded from the jury and a mistrial declared if his knowledge comes to light. Jurors should not be machines waiting for the judge to feed them instructions. They should be intelligent rational men who are allowed to conduct investigations beyond what is filtered to them by the judge. Such is not the case today. Score another victory for Lawlor.

        Judges decide what the jury instructions are with no grounds for appeal – In Lawlor’s world, lawyers could make suggestions but the actual jury instructions were entirely up to the judge and, regardless of the instructions he gave to the jury, the verdict could not be appealed. In other words, the judge could tell the jury “I think the defendant is guilty if you don’t find him guilty I’ll have you all taken out and shot.” In Lawlor’s world, that would not be grounds for either appeal or reversal.

        Right to a Separate Jury Trial – This is another right we have had since antiquity which has recently been lost. When two or more people are charged with the same crime, each had the right to be tried separate of the other defendants. This was an extremely important protection for the rights of the accused. It precluded a jury from condemning an innocent man merely because his co-defendant was patently guilty. Lawlor wins again. There is no right to a separate jury trial in California today.

        Presumption of Innocence and Reasonable Doubt – Courts tell jurors they have two levels when determining something. The highest standard is “Beyond a Reasonable Doubt.” This isn’t a standard of “beyond all doubt” or “beyond the shadow of a doubt.” Instead it is a subjective standard where a reasonable man, given the facts and evidence of the case would conclude that the defendant is guilty or innocent. The other standard is a “preponderance of the evidence.” Here a juror must only believe that the probability something being true is 50% plus some infinitesimally small amount above 50%. In other words, truth is determined by a flip of a coin. Lawlor would have his jurors decide fact on that “flip of a coin” and then render a decision based upon the coin-toss evidence via the Reasonable Doubt standard. This is of course logically impossible. There is an old saying that a chain is only as strong as its weakest link. Lawlor’s logic would have made every link in the chain defective. In Civil cases punitive damages are determined by a preponderance of the evidence which is one of the reasons why California is known as the “Sue Me” state. In Criminal cases it is an academic question because it is the judge and the prosecutor who decide what evidence and what defense is allowed by the defendant. If a man wants to plead not guilty to murder by reason of self defense the judge decides if he will allow the plea. If not, which is often the case, the defendant is forced to plead simply not guilty and try to convince the jury he did not kill the person even though the fact is, he did. Jurors will then convict based upon the evidence never having known the full facts of the case. Similarly, if the prosecutor secretly has a videotape of the killing, he gets to decide if the evidence should be provided to the defense. Lawlor would have been pleased. Likewise, Lawlor believed the ultimate burden rest with the defendant to prove his innocence.

        Statute of Limitations – Each kind of crime has a fixed amount of time within which you can prosecute someone. If you charge someone with a crime then you have to bring that person to trial within the time limit or lose your ability to prosecute him in court. If he flees the state you either chase him down or put a bounty on his head. If he doesn’t flee, he has the right to a speedy trial. If you are going to charge someone then you have to make sure you charge him with the offense consistent with the crime. In other words, if you charge someone with murder and the facts don’t warrant a murder charge but instead a lesser offense like manslaughter, the statute of limitations for manslaughter applies, not the longer one for murder. Lawlor believed these to be an impediment and should be severely weakened. Looking at the criminal justice system today, chalk up another win for Lawlor.

        Disqualification of Judges for prejudice – Lawlor would not allow for judges who have already formed an opinion to be disqualified from hearing a case. It was his opinion that “It would be better that there should be an occasional hardship on litigants than the whole system should be weakened.” This one sentence summaries Lawlor’s judicial philosophy best. For Lawlor, guilt and innocence or of secondary importance. The primacy of the court and the process are what is important. Sadly the United States Supreme Court has twice affirmed Lawlor’s judicial philosophy declaring that a factually innocent man can be sent to prison or executed. His guilt or innocence is not what the law is concerned with, only that he be provided “due process.” And what is “due process?” It is whatever the court says it is. Today, a judge can order the sterilization of a teenage girl for allegations of promiscuity, keep his job and not be prosecuted. This would not have displeased Lawlor but I don’t think even he could have conceived it possible back in 1910.

        Corroboration of the evidence of an accomplice – In 1910, if an admitted criminal accused another person of committing the crime along with him then he must provide proof that the person was his accomplice. Absent such proof, he is unable to testify before a jury that this person was his accomplice. Score another one for Lawlor, judges routinely allow unsubstantiated testimony.

        Admissibility of prior testimony in a retrial – In 1910, if a person died, or became insane, whatever he testified in the previous trial could not be readmitted by the prosecution because a defendant has a constitutional right to confront his accuser. A defendant was allowed to use prior testimony in his defense. The right to confront one’s accuser has also gone by the wayside, judges have and do allow prosecutors to submit testimony which a defendant is not allowed to cross examine. Also, such testimony that was admitted in a previous trial in favor of the defense does not necessarily get a free admission ticket to his next trial.

        Any criminal conviction excludes a person from juror duty – In 1910, only convicted felons in California were excluded from sitting as a juror.

        Reduce the number of persons excluded from jury duty – Are you registered to vote in California or do you have a California driver’s license. It doesn’t matter that you are a citizen of another state and are registered to vote in the other state, and your primary residence is in another state. A California driver’s license is all you need to have to be called for jury duty. So much for a jury of one’s peers. A defendant in California can be tried by a jury of people whose home is in New York and are registered to vote in the State of New York and are citizens of the state of New York. All that California requires is that you have a California driver’s license. And why would a citizen of another state have a California driver’s license? Because you have to have insurance to drive a car in California and insurance companies won’t insure you with an out of state Drivers License. Well, in my case they said they would, and did, but less than a month after my old policy lapsed they told me that I would have to get the California License and registration or they would drop me. But I digress, more on that in a future article.

        Expand the power of Judges to cite people for contempt – In 1910, judges were limited to sentencing a person to 5 days and a $500 fine. That was a very large fine in 1910. Millions of Americans would not see that much money in a year. Lawlor would punish simple contempt with six months in jail and refusal to testify would result in the person being sent to prison for half the penalty of the trial at hand. In other words, if the defendant faced twenty years in jail, contempt would get someone sent to prison for ten years. He doesn’t say what the punishment would be for murder trials. What is half of death? Judges pretty much have unlimited contempt powers today. In 1994, a Philadelphia man, H. Beatty Chadwick, was held in contempt of court and kept in jail for 14 years. He was finally released last July at age 73. Although this wasn’t California, it very well could have been. California judges believe themselves to have worldwide jurisdiction and the inflated heads to match.

        Habeas Corpus – An easy call for Lawlor, chuck it. Sadly, the right has been greatly diminished in recent decades by courts, Congress and legislators.

        Freedom of the Press – It should be a crime according to Lawlor for a defendant to hire an investigative journalist to look into his case and for the press to report on what he finds out. As a consequence, the only thing the press would be allowed to report would be what the judge and prosecution want reported.

        Lawlor ran unsuccessfully against Republican candidate Henry A. Melvin for the California Supreme Court in 1910.

        Lawlor was elected in 1915. He served from January 3, 1915 until his death on July 25, 1926.

      2. Had I known that the word limit for comments had increased, I would have included all of Part 1.

        Here is the rest of Part 1:

        Arraignment – In 1910 in California, before a person could be charged with a crime it had to be placed before a grand jury. The grand jury was originally intended as a protection for individuals against pernicious prosecution. In 1910, a defendant could, at his arrangement, challenge the grand jury indictment, the state of mind of the grand jury and whether or not the grand jury was properly constituted. If for example, it was shown that a member of the grand jury was biased against the defendant for any reason the defendant could have the indictment thrown out and be released. Lawlor wanted grand jury proceedings to be held in secret and not subject to question. In other words, they would become a rubber stamp for the prosecution instead of a safeguard for the rights of the individual. Lawlor got more than he asked for. Not only are grand juries secret they are not necessary to prosecute a case.

        Private Prosecutions – In 1910 in California, anybody could prosecute anyone for a criminal offense. A private person could arrest anyone, including a police officer or judge and prosecute him based upon a complaint. One would think this would result in a large number of trials, often for frivolous reasons but the reverse was true. It cost money to prosecute someone then just as it costs money to defend oneself from a criminal prosecution today. The major difference between a private prosecution and a prosecution by the state is if the defendant is found innocent, the person who brought the charge is subject to fine and imprisonment. When the state prosecutes a defendant and the defendant is found innocent the District Attorney does not go to prison or pay a fine. The D.A. tries the next case without fear of imprisonment which has resulted in the abysmal state of our justice system. In the following decades the California government would whittle away at the right to privately prosecute criminals. In 1978, the US Supreme Court held that judges were immune from prosecution and in 1991 the California Supreme Court removed the last say an individual had in criminal prosecutions. In California there are no crimes against an individual, all crimes are crimes against the state in which the victim has no standing. Or so sayest the California Supreme Court.

        End of Part 1.

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