63rd Installment. State Bar Court Review Department: Remorseless Demagogues Lamenting Remorse’s Absence

The California State Bar Court's Review Department is prone to apply a remarkably totalitarian standard in assigning aggravations to offenses: it assigns an aggravation for lack of remorse if respondent denies his culpability. (See Rules Proc. State Bar, tit. IV, Stds. for Atty. Sanctions for Prof. Misconduct, std. 1.2(b)(v) [standards for aggravation].) The Review Department is apt to play this mean trick when it wants to affirm the Hearing Department's discipline but can't justify it fairly. The Review Department may further contend that respondent's theory of the case shows respondent is apt to re-offend. Aspersions on the political motives of judges — who, as elected officials, no doubt have political motives — the Review Department receives clinically, as symptoms enhancing the likelihood of repeating. These holdings ignore California law, as California prohibits using a not-guilty plea as evidence of absence of remorse. (People v. Coleman (1969) 71 Cal.2d 1159, 1168.) California law, unfortunately, allows using absence of remorse as a sentencing factor. The hypocritical attitude toward remorse is one of the worst examples of the rampant formalism in criminal law. Remorse is well suited as entry point for the bleakest expressions of the State Bar's show-trial mentality.

The nearly universal practice of using remorse for sentencing intrudes an unctuous sentimentalism into the courtroom. Where is respect for truth when the criminal court punishes honesty and rewards hypocrisy? This regressive parentalism infantilizes participants. Absence of remorse is said to predict recidivism, but defenders of remorse-based sentencing don't present data to support this claim. In natural settings the truly remorseful prove themselves free of that developmental absence of morality termed psychopathy, but psychopaths are often skilled actors. A persuasive show of remorse is too ambiguous for assessing defendants' intractability.

Criminal defendants who plead not guilty, as opposed to those who show their lack of remorse despite a guilty plea, are more likely to repeat and are harder to rehabilitate, but just where remorse is predictive, its use is illegitimate. To require remorse of a defendant who claims innocence violates due process at its foundation, the right to be heard. A defendant doesn't exercise this right when the state puts gun to his head and tells him what to say.

Some courts hold that, after the court convicts him, it can penalize the defendant for lack of remorse if he still denies guilt. But even in the sentencing phase, a defendant can maintain that the high likelihood his conviction was error mitigates the offense, and as it is illegitimate to demand that a respondent claiming innocence show remorse, it is also illegitimate to demand that one admitting guilt acquiesce to the state's view of his offense. Either restriction fetters defendants' arguments.

Sentencing based on whether defendant shows remorse is a common-law inheritance that should be invalidated on constitutional grounds. Criminal-court jurisprudence bases controlling distinctions on where in the trial sequence the court applies a standard, but only in the mind of a formalist lawyer (or a nonprofessional who accepts folk ideology as truth) is there a difference in principle between charging a person for a thought crime or increasinng a sentence for a subsequent thought crime.

Any constraint besides persuasiveness on the content of a defendant's courtroom speech limits persuasiveness by penalizing its straightforward pursuit. A constraint on defendants' and respondents' persuasiveness in the courtroom violates their right to be heard.

(See also 33rd Installment. Remorselessness.)

kanBARoo Court. 33rd Installment. Remorselessness

Criminal law has regressed in the past thirty years, retreating toward the quasi-religious weighing of a defendant's virtue. In the federal courts, for example, sentencing guidelines include mitigation for "taking responsibility" for one's crime, the seventeenth century idea of remorse expressed in nineteenth century jargon. As in most legal matters where doctrinal asphyxiation effects oppression, the State Bar establishment is in the forefront, remorselessly pushing aggravated discipline for remorselessness to curtail the respondent’s right to argue the merits.

The legal problem in aggravating or mitigating sentences based on the defendant’s degree of remorsefulness is its irrelevance to any reasonable purpose for imposing punishment, despite the U.S. Constitution's requirement that the means of allocating punishment have some rational justification. California justifies using remorse because courts universally use it as a factor in sentencing. (See People v. Hinton (2006) 38 Cal.4th 389 ["The presence or absence of remorse is a factor universally deemed relevant to the jury's penalty determination."].) Universality, however, does not entail rationality; other legal practices are universal yet transparently irrational, an example being the universal practice of punishing the successful commission of crime more than an attempt. Other common arguments favoring factoring the court's appraisal of a defendant's remorsefulness into sentencing rest on psychological theories that would never survive a Kelly-Frye hearing. Moralists contend encouraging remorse furthers rehabilitation, a two-step argument that fails at both points — guilt following wrongdoing relates but weakly to conduct; extrinsic rewards and punishments produce paradoxical effects on motivational state.

Problematically for the universality argument, courts differ profoundly on how to incorporate remorse into sentencing. Courts disagree, for example, on when a defendant should display remorse to obtain redemption. If a defendant delays the display of remorse, does the delay prove genuine remorsefulness, because it followed a period of reflection, or does it express insufficient remorsefulness, because defendant had already shown himself remorseless? Such variance suggests conflicting theories of remorse's induction and its relation to conduct, rendering universality as little consolation to moralists as the cultural universal of belief in God or gods imparts to any specific faith. The jurisdictional differences in conceptualizing remorse suggest using remorse judicially rests on commonality of sentiment or psychological press rather than a judicial or folk-psychological concensus on remorse.

Remorse-based sentencing, unscathed by its scientific irrationality, is embedded in our criminal justice system. Judicial controversy arises only when remorse's use as a sentencing factor adversely affects the exercise of trial rights, such as penalizing a defendant who fails to show remorse while claiming innocence.The jurisdictions, including the federal circuit courts, have split on whether failing to show remorse counts against a defendant before a contested verdict's finality; this practical disagreement concerns whether the courts can hold a defendant pleading not guilty to its standards for remorsefulness. Several federal circuits allow the court to withhold points for acknowledgement of responsibility from the defendant protesting innocence, and according to commentators, the usual practice in such jurisdictions is simply to award or deny points in mitigation based on the plea. (See for example, O'Hear, M. (1997) Remorse, cooperation, and 'acceptance of responsibility': the structure, implementation, and reform of section 3E1.1 of the federal sentencing guidelines. Northwestern Univ. L. Rev. 91, 1507.) The most common argument from courts endorsing these practices is to distinguish these lost points for remorse from a true penalty, because they merely fail to offer a benefit. As the Third Circuit pointed out, no court has shown a principled distinction between withholding a benefit and imposing a penalty, and the U.S. Supreme Court holds that opportunity losses, such as denial of a Government job, are tantamount to penalties, undermining the more moralistic jurisdictions’ perversely formalistic reasoning. (See U.S. v. Frierson (3d Cir. 1991) 945 F.2d 650; Roberts v. United States (1980) 445 U.S. 552, 557 n. 4 ["We doubt that a principled distinction may be drawn between 'enhancing' the punishment imposed upon the petitioner and denying him the 'leniency' he claims would be appropriate if he had cooperated."].)

Because most cases that uphold using alleged remorselessness against defendants contesting charges rest on formal-distinction-without-a-difference subterfuge, the best-reasoned case for using remorse as a sentencing factor, even when it stacks the incentives against the exercise of constitutional rights to trial and against self-incrimination, draws on a line of Supreme Court cases distinct from the penalties cases. In the plea bargaining cases, where defendants contested the validity of plea-bargaining inducements to forgo trial, the Supreme Court found plea bargaining imposed no penalty on defendants exercising their rights. The Fourth Circuit reconciled the apparently contradictory cases by distinguishing the conditions under which loss of a reward was not tantamount to a penalty. The court termed the reward for pleading guilty, offered through plea bargaining, incidental to another purpose: to offer leniency for remorsefulness. (See United States v. Frazier (4th Cir. 1992) 971 F.2d 1076.) But the Fourth Circuit mischaracterizes plea-bargaining, since demanding trial is not a peripheral consequence of judicially-conceived remorselessness but operationally forms its principal component. Demanding trial in many jurisdictions is presumptive and almost conclusive evidence of lack of remorse. (See for example, United States v. Beserra (7th Cir. 1992) 967 F.2d 254, 255 [Guilty plea normally a necessary condition for the reduction.].)

Plea bargaining has been lauded for showing leniency to the remorseful, but the argument for judicial cognizance of defendants’ remorsefulness is weaker than the practice defended. The market for plea bargains is a bilateral monopoly, with the prosecutor enjoying disproportionate bargaining power, and prosecutors will threaten with their draconian options in the name of remorse and personal responsibility. Plea-bargaining, however, can be distinguished from the use of remorse as a sentencing factor by the former's allowing settlement based on the state of the evidence before trial. A prosecutor’s plea-bargaining offer should be a reasonable estimate of the punishment multiplied by its likelihood of imposition, not whatever sentence the prosecutor can coerce a defendant to accept.

You get a sense of how the State Bar plays its remorse card from the prosecutrix's document, “State Bar’s Opposition to Respondent’s Motion for reconsideration and for Immediate Stay,” published in the 21st Installment, where the prosecutrix contends, prior to any determination of guilt, “Aggravating factors include a member’s indifference toward rectification of or atonement for the consequences of his misconduct.” Even under California’s flawed laws on using remorsefulness in sentencing (see People v. Holguin (1989) 213 Cal. App. 3d 1308, 1319 ["Lack of remorse may be used as a factor to aggravate under California Rules of Court, rule 408 unless the defendant has denied guilt and the evidence of guilt is conflicting"]), California has recognized the prosecutrix’s machinations as an impropriety of constitutional dimension, since the California Supreme Court held in People v. Coleman that a prosecutor could not draw inferences for lack of remorse from a defendant’s failure to admit guilt. (People v. Coleman (1969) 71 Cal.2d 1159, 1169 ["We conclude that any argument that failure to confess should be deemed evidence of lack of remorse is not permissible."].)

The remorse factor functions openly in the State Bar Court as a litigation weapon wielded by the prosecution, expressing with less camouflage and sophistication the appetite driving criminal law's moralistic relapse. The conflicts with basic trial rights are not incidental but central to the motives driving the new moralism. The moralists recouped in the sentencing phase what they lost in the guilt phase, when the courts prohibited punishment for asserting the right to trial.

(See also 63rd Installment. Review Department: Remorseless Demagogues Lamenting Remorse's Absence.)

kanBARoo Court. 21st Installment. The State Bar Demands Atonement.

This installment presents some court filings by the State Bar. First I will print and comment on, by way of update, the “State Bar’s Opposition to Respondent’s Motion for reconsideration and for Immediate Stay; Memorandum of Points and Authorities.” My motion for reconsideration and request for immediate stay is here. My original opposition, appended to the motion for consideration, is here. Then we’ll look at a State Bar filing that is, depending on your mood, particularly funny or hideous.

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Begin the State Bar's Document

Memorandum of points and authorities

On December 17, 2007, the State Bar filed a Motion for Reconsideration of this Court’s denial of the State Bar’s Motion for Entry of Respondent’s Default and Order to Show Cause. In that Motion, the State Bar asserted that this Court has lost jurisdiction over this matter because all of the requirements for entry of Respondent’s default had been met, the clerk’s failure to enter his default was in error, and that because the requirements were met, the court lost jurisdiction to take any further action in this matter. So, this Court does not have jurisdiction to order Respondent to appear for an Order to Show Cause. That remains the position of the State Bar. Without Waiving that position, the State Bar submits this opposition.

I. Respondent has failed to state any grounds for the Hearing Department to issue a stay of these proceedings.

Respondent cites no rule which provides for any generalized stay of proceedings in the Hearing Department. Stays of proceedings in the Hearing Department may only be granted under certain terms where a Respondent’s physical or mental condition is at issue or when a party files a petition for interlocutory review. (Rules 184 and 300(h)(1), Rule of Procedure of the State Bar of California). Neither circumstance applies in this matter. Rather, it appears as if Respondent seeks to renew his prior request for an immediate stay filed November 28, 2007, in which he asserted he intended to file a petition for interlocutory review but never properly did so. That request was denied by this Court on December 4, 2007, for want of good cause. Now, Respondent has waged a campaign against the assigned Deputy Trial Counsel and court clerk in which he alleges a variety of misdeeds and conspiracy theories that have no basis in fact. His unfounded, libelous, and absurd allegation do not provide any legal ground for this Court to grant a stay.

II. The Motion does not state new or different facts, circumstances or law and the Court’s decision does not contain any error of fact or law.

Grounds for a motion to reconsider are new or different facts, circumstances, or law or that the Court’s order or decision contains one or more errors of law or fact. (Rule 224(b) of the Rules of Procedure of the State Bar Court.)

Respondent seems only to assert that the Court did not consider his opposition to the State Bar’s Motion for Entry of Default, as his grounds for seeking reconsideration. In fact, he attaches as Exhibit A, his Opposition to Motion for Entry of Default. But here, the Order to Show Cause was issued after the State Bar made a Motion for Terminating Sanctions. The Court ordered Respondent to file an opposition to that motion on or before 5;00 p.m. on December 11, 2007. He did not. So, Respondent has failed to allege any grounds for the Court to reconsider its Order requiring Respondent to show cause as to why terminating sanctions should not be imposed.

Conclusion.

Respondent has failed to assert any proper grounds for relief. His motions should therefore, be denied.

END the State Bar's DOCUMENT

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The prosecutrix, as she mentions above, has filed her own motion for reconsideration. The State Bar has again involved itself in an impermissible procedural incompatibility, arguing in one motion that the court is without jurisdiction to order the OSC and in a contemporaneous opposition that the court should not reconsider its order.

The prosecutrix tries to pretend that nothing new has happened, but an immediate stay, based on interlocutory review, is justified, because my filing attempt was thwarted by foul play. The prosecutrix does not mention the evidence, her inability to produce the document in question. She has never offered to prove it in her possession or control. Yet she has admitted receiving it. My simple argument is that if she didn’t provide the clerk with the copy returned to me, without proof of service, then where is her copy? If she happened to lose it, did I just happen to know, or did I supposedly take the great risk of making a claim that, if false, she should easily refute? I don’t think she will be getting away with this, but if she can, the institution in question is no longer serving as a court of law.

So what is the court doing. Nothing. Fifteen days have passed since I filed my motion for reconsideration and request for immediate stay, sending a copy by certified mail to Judge Honn, and the court has said absolutely nothing. The court, no doubt, is waiting to sort matters out at the OSC it calendared for January 2, or else, to find a way to avoid the issue at that convocation. My anti-waiver strategy dictates that I not attend, and I shall not. I harbor no doubt that under the strong evidence presented of reversible misconduct, I am entitled to hear something from the court by this time. I cannot be required to participate in hearings, when I am denied ordinary access to the court through the clerk’s office in preparation.

The court ordered the OSC to determine whether my failure to cooperate with discovery should be entered as an aggravating factor. At such a hearing, the judge could easily deny even hearing my argument for a stay. Paranoid? To get a real idea of the police state thinking of State Bar Enforcement, consider the prosecutrix’s brief for the January 2, 2008 hearing. Alternatively, you may find these documents hilarious.


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BEGIN State Bar's DOCUMENT

Statement of non-waiver

On December 17, 2007, the State Bar filed a Motion for Reconsideration of this Court’s denial of the State Bar’s Motion for Entry of Respondent’s Default and Order to Show Cause. In that Motion, the State Bar asserted that this Court has lost jurisdiction over this matter because all of the requirements for entry of Respondent’s default had been met, the clerk’s failure to enter his default was in error, and that because the requirements were met, the court lost jurisdiction to take any further action in this matter. That remains the position of the State Bar. Without waiving that position, the State Bar submits this brief at the Court’s invitation.

Respondent’s failure to cooperate in these proceeding should be considered an aggravating factor in determining the appropriate level of discipline.

Aggravating factors are not required to be separately charged but facts that could have formed the basis for an additional charge which are not in the Notice of Disciplinary Charges cannot be relied on in aggravation where, for example, a Respondent is found in default and not fairly put on notice that such facts will be relied on (Matter of Heiner) 1 Cal. State Bar Ct. Rptr. 301 [emphasis added].) Here, by way of this Court’s Order of December 12, 2007, Regarding Motion for Entry of Default and Order to Show Cause on Motion for Order Imposing Sanctions, Respondent has been put on notice that his failure to cooperate in these proceedings may be considered an aggravating factor.

Aggravating factors include a member’s indifference toward rectification of or atonement for the consequences of his misconduct and lack of cooperation wit the State Bar during disciplinary proceedings. (Std. 1.2(b)(v), (vi).)

A respondent’s sporadic participation in disciplinary proceedings despite warnings from the judge demonstrates indifference to professional obligations and a substantial risk to the public. (Matter of Boyne (1993) 2 cal. State Bar Ct. Rptr. 389.) Also, a respondent’s use of specious and unsupported arguments in an attempt to evade culpability demonstrates a lack of appreciation for his misconduct and his obligations as an attorney, and the persistent lack of insight into the deficiencies of his professional behavior is an independent, aggravating factor (Matter of Bach (1991) 1 Cal. State Bar Ct. Rptr. 631.) So too is a respondent’s use of obstructive tactics during the disciplinary proceeding including abuse of discovery and frivolous motions and a respondent’s lack of appreciation of the necessity for timely, meaningful participation in the disciplinary process. (Matter of Varakin 91994) 3 cal. State Bar Ct. Rptr. 179; Matter of Hunter (1994) 3 cal. State Bar Ct. Rptr. 63.)

Here, Respondent has consistently failed to file a response pursuant to Rule 103, despite the rules requiring it and this Court’s orders that he do so. He has failed to participate in discovery, requiring the State Bar to file a Motion to Compel his deposition which was granted. Thereafter, he failed to appear for the deposition. He failed to file a pre-trial statement. He has filed numerous untimely and procedurally incorrect, motions in which he ha raised specious and unsupported arguments and has accused the assigned Deputy Trial Counsel and court clerk of a variety of misdeeds and conspiracies that have no basis in fact and that rise to the level of paranoia, absurdity, and libel. All of those factors can and should be considered aggravating in this Court’s recommendation of the appropriate level of discipline in this matter.

Conclusion

Respondent has had proper notice that uncharged misconduct may be considered by the Court in determining the appropriate level of discipline in this matter. There are a number of aggravating factors that the Court can and should find in recommending the appropriate level of discipline.

END State Bar's DOCUMENT

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A few points:

1) The State Bar thinks that without having proven the predicate, it can reasonably assail me for failing to “atone” for the consequences of my alleged misconduct;

2) Although I have filed numerous papers arguing that I cannot be required to participate in discovery until exhausting my challenges to the notice of disciplinary charges, the State Bar has never responded to those arguments, except by characterizing them as “specious.” Instead it pretends that it can condemn conduct without even considering the justifications offered, the sclerosis of a bureaucracy that has never had to fight for its positions fairly;

3) The State Bar claims I have presented no evidence for the prosecutrix’s misconduct, whereas in light of her failure to claim possession of the subject document while admitting receipt, I have actually proven that misconduct;

4) The State Bar repeatedly claims that I failed to file a timely responsive pleading, although the court has repeatedly accepted my documents and termed them responsive pleadings;

5) Very oddly, the State Bar insists on applying standards applicable to a clerk's default to a motion directed to the court. Apart from this being an incredibly stupid legal construction, it also amounts to an enraged insult directed at its own court, as the Hearing Department fails to deliver the Office of the Chief Trial Counsel's presumed entitlements. "You are no more than our clerk," screams the State Bar to the Hearing Department.

kanBARoo Court, 9th Installment, Continued response to critics

Discussion continues at misc.legal, where I posted this further response in the thread at http://tinyurl.com/2dy669:

My response had nothing to do with the ineradicable nature of Internet publications. As I pointed out, I intentionally admitted a form of managerial negligence, and I quoted from my pleadings to prove that I had admitted the same directly to the Bar. The blog proves no admissions not made in the actual proceeding.

----Poster commentary that I do not reproduce because of denial of permission-------

Since you are not a lawyer, what warrants assuming that you know better than I the potential benefits and perils of hiring a lawyer? No other attorney would consider using the arguments on which I center my defense. In defending myself, I need not worry about my client alleging malpractice for the unconventionality of my approach. Any hired lawyer would have to consider this.

The approach the Bar Defense Establishment takes is to avoid conflict and impress the Bar with the respondent's remorse. Before my case even comes to issue, the Deputy Trial Counsel already complains that I have shown myself remorseless. Experienced California attorneys know the California State Bar is a vindictive claque, and the defense attorneys dedicate themselves to avoiding the State Bar's lasting enmity.

I have nothing to hide, as cannot be said of the California State Bar.

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