THE ROOT OF AMERICA'S FIREARM PROBLEM

The incident that occurred today (April 2, 2021) at the Capitol was a demonstration that firearms are not the cause of the egregious acts of violence that seem to plague contemporary society. A man rammed his automobile into some Capitol policemen and then got out and began stabbing policemen with a knife. One was killed and another seriously injured before officers armed with firearms put an end to his rampage. In the time immediately after the incident, before anyone involved in the atrocity was identified, the talking heads on a certain 24 hour news station wondered what would cause someone to do something like that. Since only the police deployed firearms, there were no calls to tighten gun control, and I heard no calls for automobile control or knife control. I predicted that the perpetrator would have mental health issues, and as the day wore on, it turned out that his Facebook posts revealed a young man in some form of mental torment who had been spiraling down from bad to worse over a period of years. 

Which brings us to the failure of gun control. It won't stop violence. England has stringent gun control laws, and those laws didn't stop the random acts of violence. The bad guys switched to knives, and now there is an English movement for knife control. If they get the knives under control, the violence prone can switch to axes. When they ban axes, the next weapon of choice might be the claw hammer. 

What causes gun violence? Not guns. I've been around guns all my life and have shot everything from am M79 grenade launcher (which is fun to shoot) to a single shot, rolling block .22 caliber rook rifle (which is also fun to shoot), and no firearm I have ever handled has inspired me to climb a tower and start shooting random passers by. I have never seen or heard tell of a firearm like the one in Terry Pratchett's science fantasy novel Men at Arms, which took control of its possessor and made him commit murder.

I put my finger on the root cause of gun violence in a blog post that I made in the wake of the Sandy Hook shooting back in 2012, SANDY HOOK AND GUN CONTROL. The root cause of gun control is the Supreme Court's decision in O'Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486 (U.S.Fla. 1975). O'Connor severely limited the states' ability to involuntarily commit the mentally ill. The gist of this opinion was that mentally ill people cannot be locked up unless they are shown to be dangerous. To put it crudely, just acting weird is not enough for involuntary hospitalization. The Supreme Court put it more delicately, but they were saying the same thing: “May the State fence in the harmless mentally ill solely to save its citizens from exposure to those whose ways are different?” Before 1975 we regularly locked up people who were acting weird but who had never harmed anyone. And I believe at that time we had fewer mass murders. Most of the mass killers of recent vintage ( I’m thinking particularly about the man who ran amok at Virginia Tech) acted weird long before they killed anyone. Under O’Connor, they couldn’t be locked up because they hadn’t harmed anyone, or if they had harmed someone, there was a mental health professional who testified that they were all better now and weren't dangerous any more. I vividly remember one case we had where a man kept committing arsons. He'd get arrested, the doctors would say he was mentally ill, but he didn't need hospitalization, and under O'Connor he'd get put back on the street where--you guessed it, he set something else on fire. He finally "burned out" on his hobby of setting fires, and thankfully he never hurt anyone.

Now, I’m not in favor of locking people up merely because they act weird. Most people who act weird don’t commit mass murders. Just as most people who own guns don’t commit mass murders. 

The relevant Florida standard for involuntary commitment, which is pretty much universal throughout the United States is: 

"There is a substantial likelihood that without care or treatment the person will cause serious bodily harm to himself or herself or others in the near future, as evidenced by recent behavior." Fla. Stat. 394.463(1)(b)2. 

I was a mental health prosecutor for several years, and here's what happens in a typical involuntary commitment: The patient is held for 72 hours and released. I never felt more like I was spinning my wheels and accomplishing nothing than when handling a case with a a patient who was obviously nutty as a fruitcake and in need of treatment, but was turned loose because there was "[no] substantial likelihood that without care or treatment the person will cause serious bodily harm to himself or herself or others in the near future...." [emphasis supplied].

We had a man once who took off all his clothes in the middle of the night, got a shotgun, marched naked down the hallway of his parents house into their bedroom, announced that his father was the Devil, and shot him to death as he lay beside his wife. He was found not guilty by reason of insanity and shipped off to the state mental hospital, and six months later the hospital wanted to turn him loose because he was cured and there was no "substantial likelihood" he would kill his father again. We were able to keep that one locked up.

Time after time these mass shooters turn out to be people with a history of revolving door mental health issues. The Supreme Court needs to readdress their holding in O'Connor and devise some way to allow the authorities to control the mentally ill who are potentially dangerous. The standard of "substantial likelihood [of causing] serious bodily harm ... in the near future" is too stringent a standard, and it allows dangerous people to go untreated and spiral farther and farther down into the abyss of desire to do violence until they act out and we have another tragedy.

The Justices of the Supreme Court are some of the brightest minds in the legal profession. Surely they can devise some means of protecting the rights of the mentally ill while protecting the public from the mentally ill.

OUR UNDEMOCRATIC ELECTORAL COLLEGE

It’s downright undemocratic for someone to win the Presidency and lose the popular vote! Well, I guess it is, but the American government is not a democracy. The heart and soul of democracy is majority rule. Whatever the majority of the people want, that’s what the government is going to do. Athens was a democracy. Whatever the voters wanted, that’s what they got, and eventually the voters voted their country into ruin with the disastrous Sicilian Expedition, which led to catastrophic defeat in the Peloponnesian War.

America's government, on the other hand, was designed to see to it that in certain situations the majority’s will could be ignored. America started out as a group of thirteen independent states, just as Greece was a group of many independent city-states. The Greeks experimented with confederations of city-states known as the Delian League and the Peloponnesian League. It didn’t work out, and Greek unity was achieved only with the swords of Philip of Macedon and his more famous son, Alexander the Great.

The thirteen independent states in American also entered into a confederation that didn’t work. When the Articles of Confederation proved inadequate, the thirteen independent states achieved unity by the pen rather than the sword. Under the Constitution, each state surrendered some, but not all, of its sovereignty to a central Federal government which was modeled, not after the Athenian democracy, but after the Roman Republic. There was a certain amount of democracy under the Roman Republic, but it was set up so that the majority didn’t always prevail. There is a certain amount of democracy in the American Republic, but it was set up so that the majority didn’t always prevail. That’s why Wyoming (with a population of 582,658) has just as many Senators as California (with a population of 39,144,818).

Under America's republican form of government, the Senators of the 24 most populous states could vote unanimously for a bill, expressing the will of their 264,053,680 constituents, and be defeated by the unanimous vote of the Senators from the 26 least populous states, expressing the will of only 56,692,912 constituents. That’s downright undemocratic, isn’t it? It sure is, but that’s the way our government works. Each state still has a modicum of its sovereignty, and that sovereignty counts for something. It protects the citizens of the smaller states from being bullied by the larger states. Where that modicum of sovereignty is most readily apparent is in the Electoral College where we pick our presidents.

One way of looking at the election is that, as of today’s tally, Clinton is winning by 59,755,284 votes to Trump’s 59,535,522 votes, a difference of 219,762. That’s 0.18% of the vote cast—less than two-tenths of one percent. That's a difference which pollsters would say lacks statistical significance. That’s also a difference which would mandate an automatic recount in most states which require automatic recounts (most states which require an automatic recount mandate a difference of less than 0.5%, one-half of one percent). If we abolished the Electoral College, would we really want a nationwide reprise of the travesty of the Florida recount of 2000? Do you know what a popular vote margin that narrow would mean if we abolished the Electoral College? It would mean that nobody’s vote would count because nine septuagenarians wearing black dresses would decide who became President. I’d rather not have the  Supreme Court decide who was going to be President. I’ll take my chances with the Electoral College, thank you.

Another way of looking at the election is that if Trump carries Michigan, Alaska, and Arizona (in all of which he is currently leading), the electorate of 30 sovereign states will have voted for Trump, but the electorate of only 20 sovereign states voted for Clinton. If he loses all three, then the vote will be 27 sovereign states for Trump and 23 for Clinton.

We don’t elect Presidents by popular vote or by the vote of individual sovereign states. We use they hybrid system of the Electoral College. Under our Constitution, Trump won by 270+ electoral votes. End of story. 

State sovereignty has been gradually eroded since 1776 until it is a mere shadow of what it once was. We need to cling to what little state sovereignty we have remaining, and the Electoral College is one vestige of state sovereignty that should remain.

Majority rule isn’t always a good thing. It frequently slips into majority tyranny. The urban majority can and often does run roughshod over the needs and wishes of the rural minority. The Electoral College is one way of preventing the urban majority from trampling the rights of the rural minority. Look at the USA Today county-by-county map of how the vote went. Those blue states almost disappear when you color in the red counties outside the major metropolitan areas.

If we abolish the Electoral College, we abolish one of the last vestiges of state sovereignty, and we might as well change our name to the United Provinces of America.

THREE THINGS LITIGANTS DON'T WANT IN A JURY

[1] LITIGANTS DON’T WANT A FAIR AND IMPARTIAL JURY

The mantra that lawyers recite when they are questioning jurors is “fair and impartial jury.” They tell jurors that the only reason they are asking all those prying, invasive questions is to help them in seating as fair and impartial a jury as possible. What litigants really want is a jury that is going to be as unfairly partial as possible—unfair to the other side and partial to their side.

Q: What do the following three litigants have in common:

[a] A criminal defendant who is guilty as home-made sin, facing a prosecution with an ironclad case.

[b] A civil plaintiff who is faking an injury and looking to score a huge payday off of some corporate giant with deep pockets.

[c] A civil defendant who is unquestionably at fault and facing financial ruin from an adverse verdict.

A: They don’t want a fair and impartial jury.

Why? A fair and impartial jury is going to nail all three of them. Even an innocent criminal defendant, a deserving civil plaintiff, and a faultless civil defendant would be idiots not to want an unfairly partial jury, so long as the jury was biased in their favor.

[2] LITIGANTS DON’T WANT A REPRESENTATIVE CROSS-SECTION OF THE COMMUNITY ON THE JURY

As early as 1948 the United States Supreme Court was writing about the Constitutional right to a jury comprising a “representative cross-section of the community.” Thiel v. Southern Pac. Co., 328 U.S. 217,66 S.Ct. 984 Probably the strongest expression of the concept came in the case of Batson v. Kentucky, 476 U.S. 79,106 S.Ct. 1712 (1986),

Once long ago when I was a young public defender, I was sitting in court waiting my turn to voir dire a jury and watching out-of-town private counsel conduct a voir dire. He was asking some strange questions, so I decided to find out why he was acting so strangely. During a recess I approached him and asked, and he replied that he was just trying to get a representative cross-section of the community. Being far more familiar with the community than he was, I was tempted to say, “Brother, the last thing in the world you want is a representative cross-section of this community!” I restrained myself, and later that day the representative cross-section of the community convicted his client.

Depending on the community, a litigant may or may not want a representative cross-section on the jury. If you’re defending a local poacher in a county where poaching is a way of life, you certainly want that representative cross-section. If you’re in a county where everyone belongs to hunting clubs which have their own private hunting lands, you don’t want a representative cross-section, you want a change of venue.

What litigants want is a jury that is going to vote their way, and if that means a jury completely composed of a single ethnic group, then that’s just fine and dandy. I once represented a Puerto Rican gentleman who perceived this far better than a lot of lawyers I know. When we were talking to him about jury selection, he told us he wanted a jury of his peers—all Puerto Ricans.

[3] LITIGANTS DON’T WANT AN INTELLIGENT JURY

Imagine this if you will. Charles Darwin has just formulated his theory of evolution by natural selection. He presents it to the Linnean Society of London, at that time the preeminent authority on taxonomy and natural history. The Linnean Society begins to evaluate the worth of Darwin’s theory. They herd together a large number of citizens off of the streets of London, and then carefully winnow through them seeking twelve Londoners who know nothing about taxonomy or natural history. Having found twelve good men and true who are completely ignorant of the subject, they then have Darwin and an opponent of his theory debate its merits before the group. The group retires to consider its verdict, and then renders a pronouncement on whether Darwin’s theory is sound science.

Or this scenario: Albert Einstein has just devised his special theory of relativity. When he presents it to the publisher of a scientific journal for publication, the publisher quite naturally wants to determine its worth as a scientific theory before putting it in print. The publisher therefore goes out into the streets and gathers a random group of citizens. The citizens are carefully questioned, and anyone with anything more than a rudimentary knowledge of arithmetic is summarily excused. The twelve citizens with the least knowledge of mathematics are then assembled as a panel to listen to Einstein debate the merits of his theory with an opponent. At the conclusion of the debate, the twelve ignorant citizens then decide whether Einstein’s theory is worthy of publication.

You might say that’s a silly way to settle a matter, but that’s exactly how jury trials are conducted. Look at any jury selection in any highly publicized case. The attorneys work diligently to exclude anyone who has been exposed to any publicity whatsoever about the case. Mark Twain summed up the American jury system quite well when he said “We have a criminal jury system which is superior to any in the world; and its efficiency is only marred by the difficulty of finding twelve men every day who don't know anything and can't read.” The American Journal of Insanity (later to become the American Journal of Psychiatry) made a more insightful if less humorous observation when it said: “It would seem that in this country, to be a juryman in a criminal case, requires an abstinence from the acquisition of news, and the expression of conclusions on what one hears or learns, that in Athens would have been odd enough to subject a man to the suspicion of being unfit, from that very cause, to sit upon a jury, or do any other thing that required a knowledge of what was going on in the world.” http://ajp.psychiatryonline.org/doi/abs/10.1176/ajp.15.1.33

What happens in a high profile case where you strike off every potential juror who has read anything about the case in the paper or seen anything about it on the television? You wind up with twelve intellectually challenged jurors. And this is what the lawyers seem to want. If they can’t get a jury which is biased in their favor, then the next best thing is an intellectually challenged jury whom they can manipulate into doing what they want. Intelligent people are not immune to manipulation, but they are less susceptible than the intellectually challenged.

The jury selection process was designed to achieve a fair and impartial jury to render an unbiased verdict based on the law and the evidence, but that’s not how it’s working in America today.  Today it is being used by skillful lawyers to achieve a malleable group of easily-influenced intellectual lightweights who can be manipulated into rendering the desired verdict.

We supposedly like the jury system because jurors are the best judges of the truth. Then we act like they don’t have enough sense to make decisions without the extensive winnowing process of voir dire examination. What the winnowing process is really doing is trying to eliminate those with enough sense to make decisions and leave only the ones who can be talked into agreeing with us. I think we ought to give more than lip service to the idea that jurors are the best judges of the truth.

Back when I first started as a public defender it was me and two other assistant public defenders and seven counties and 21 courts. Cases were coming at us like water out of a fire hose, and we tried one case after another, sometimes as many as three and four felony cases a day for a solid week. We didn’t have time to do extensive voir dire examinations.

I may be looking through the rose-colored glasses of hindsight, but it seems to me the less voir dire we did, the more sensible the verdicts were. The longer I worked, the more extensive voir dires became, and the more inexplicable some verdicts became. When I became an assistant state attorney and started working with grand juries, I was amazed at how much more sensible grand jurors were than petit jurors. Then the reason dawned on me—you don’t voir dire grand jurors. You just pull names out of the hat, and those are your grand jurors. I think if we did that with petit jurors, we’d get more sensible verdicts than some I’ve seen.

Like the not guilty verdict from the jury that snickered when the domestic violence victim described how her husband gouged her eye out with a broken bottle.

Or the not guilty verdict where the jurors, before they left the jury box, admonished the defendant never to do that again.

Or the robbery trial where the jury claimed that they convicted the defendants of the lesser crime of grand larceny because it was “grand” and they thought that was the biggest and best crime they could convict the defendants of.

Or the not guilty verdict that so surprised the defense attorney that he loudly interjected “Holy [excrement]!” in open court.

Or the fleeing and attempting to elude case where the defendant stole a police car and was chased all over the county before crashing it, and the jury acquitted because the crime was “just like the Dukes of Hazzard.”

These verdicts and many more like them were, I believe, the product of a system which allows the attorneys to use voir dire examination to eliminate impartial jurors who display too much intelligence. (Of course, they love intelligent jurors who are biased in their favor).

Here’s my suggestion on how to patch the system. (1) Do not allow lawyers to conduct voir dire examinations. (2) Strictly curtail voir dire examination by the judge. (3) Do away with peremptory challenges. (4) Increase the number of jurors to 18 and go to non-unanimous verdicts. (5) Require that at least 12 jurors would have to agree on any verdict. (6) If 12 jurors can’t agree on a verdict, the jury hangs and the case has to be retried.