Drunk & Disorderly

On the Docket of a Colorado Criminal Defense Attorney

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Letters from Uncle Sam


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

My grandmother was Ethel Clemens, and used to speak from time to time of her uncle, Sam. Uncle Sam was a prolific writer, of letters and such. Sometimes he’d write a line or two that seemed worth saving. Some bore at least faint reference to the criminal law, a subject with which a criminal defense lawyer ought to have a passing acquaintance.

Here are a few:

On Aliases

…although Smith, Jones, and Johnson are easy names to remember when there is no occasion to remember them, it is next to impossible to recollect them when they are wanted.

How do criminals manage to keep a brand-new ALIAS in mind? This is a great mystery.


On Burglars

Sam’s own house was burgled, and he wrote to a friend, “We are buying a couple of bulldogs & hoping they will call again.” They did call again:

Those poor burglars have gone to jail. I haven’t anything against them, I bear them no malice & put no blame upon them, for it is only circumstances & environment that make burglars, therefore anybody is liable to be one. I don’t quite know how I have managed to escape myself.


On Crime

As by the fires of experience, so by commission of crime, you learn real morals. Commit all the crimes, familiarize yourself with all sins, take them in rotation (there are only two or three thousand of them), stick to it, commit two or three every day, and by-and-by you will be proof against them. When you are through you will be proof against all sins and morally perfect. You will be vaccinated against every possible commission of them. This is the only way.


On Evil

Everyone is a moon, and has a dark side which he never shows to anybody.


On Good

…there’s a good spot tucked away somewhere in everybody. You’ll be a long time finding it, sometimes.


On Jail

…every time you stop a school, you will have to build a jail. What you gain at one end you lose at the other. It’s like feeding a dog on his own tail. It won’t fatten that dog.


On Juries

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.


On Justice

…like the rain, you know, which falls upon the just and the unjust alike; a thing which would not happen if I were superintending the rain’s affairs. No, I would rain softly and sweetly on the just, but whenever I caught a sample of the unjust outdoors I would drown him.


On Killing

Sam described the noble goals “of the five or six high civilizations”:

They all did their best — to kill being the chiefest ambition of the human race and the earliest incident in its history — but only the Christian civilization has scored a triumph to be proud of. Two or three centuries from now it will be recognized that all the competent killers are Christians; then the pagan world will go to school to the Christian — not to acquire his religion, but his guns.


On Law

If we only had some God in the country’s laws, instead of being in such a sweat to get him into the Constitution, it would be better all around.


On Lawmakers

I think I can say, and say with pride that we have some legislatures that bring higher prices than any in the world.


On Police

Sam once tried to break up a fight on the street he and a friend witnessed. Cops, like military, enjoy a long tradition of letting God sort ’em out, so just naturally everyone landed in jail.

I have been in the Station House. I staid there all night. I don’t mind mentioning it, because anybody can get into the Station House here without committing an offence of any kind. And so he can anywhere that policemen are allowed to cumber the earth. I complimented this police force in a letter some time ago, and felt like a guilty, degraded wretch when I was doing it, and now I am glad I got into the Station House, because it will teach me never to so far forget all moral principle as to compliment a police force again.


On Prejudice

I am quite sure that (bar one) I have no race prejudices, and I think I have no color prejudices nor caste prejudices nor creed prejudices. Indeed, I know it. I can stand any society. All that I care to know is that a man is a human being — that is enough for me; he can’t be any worse.


On Robbery

A robber is much more high-toned than what a pirate is — as a general thing. In most countries they’re awful high up in the nobility — dukes and such.


On Rules

It is good to obey all the rules when you’re young, so you’ll have the strength to break them when you’re old.


On Violence

…we build a fire in a powder magazine, then double the fire department to put it out. We inflame wild beasts with the smell of blood, and then innocently wonder at the wave of brutal appetite that sweeps the land as a consequence.


And On War, the Greatest Crime

Man is the only animal that deals in that atrocity of atrocities, War. He is the only one that gathers his brethren about him and goes forth in cold blood and with calm pulse to exterminate his kind. He is the only animal that for sordid wages will march out, as the Hessians did in our Revolution, and as the boyish Prince Napoleon did in the Zulu war, and help to slaughter strangers of his own species who have done him no harm and with whom he has no quarrel.

Man is the only animal that robs his helpless fellow of his country — takes possession of it and drives him out of it or destroys him. Man has done this in all the ages. There is not an acre of ground on the globe that is in possession of its rightful owner, or that has not been taken away from owner after owner, cycle after cycle, by force and bloodshed.

Man is the only Slave. And he is the only animal who enslaves. He has always been a slave in one form or another, and has always held other slaves in bondage under him in one way or another. In our day he is always some man’s slave for wages, and does that man’s work; and this slave has other slaves under him for minor wages, and they do his work. The higher animals are the only ones who exclusively do their own work and provide their own living.

Man is the only Patriot. He sets himself apart in his own country, under his own flag, and sneers at the other nations, and keeps multitudinous uniformed assassins on hand at heavy expense to grab slices of other people’s countries, and keep them from grabbing slices of his. And in the intervals between campaigns he washes the blood off his hands and works for “the universal brotherhood of man” — with his mouth.


[Editor’s Note: My thanks to twainquotes.com and of course to Uncle Sam.]

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Memorial Day

Jean Miller Biddle

Jean Miller, Jean Rosmarin’s mum, J.D. Salinger’s Esmé


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

I laughed when my mother died. Giggled, actually. I was thirteen and playing some stupid game when my uncle told me she was dead. It’s only now, as I write these words, that I realize it should have been my father to tell me she was dead.

Hearing me laugh, my mother’s brother-in-law said nothing, and began to get ready to drive us home. Shaving his face with an old strop razor, he looked down at me and said it was hard for a man to show he hurt; that he had lost his daddy when he was my age; that it was all right to cry if I wanted. I did cry then, and in that moment loved my uncle more than I had ever loved my father.

I had known she would die. I knew it when she told me she would get better, when she said we’d celebrate when she came back from the hospital. I knew there’d be no coming back, and though she asked me to stay, I went off anyway with my younger brother and sister to our aunt’s. I couldn’t bear to watch her die.

At her funeral, she was laid out in a cheap casket, her face painted like a harlot. I was afraid to look at her; my father said I must. People said she looked peaceful, calm, at rest. She didn’t look like that. She looked dead.

Last week there was another funeral, of another mother. I knew my wife’s mum in a way I didn’t have the time to know mine: as an adult I could appreciate her rowdy and magnificent past, and her rowdy and magnificent present. I will be with her family, my family, to celebrate this singular old sparkler who gave birth to my wife, and the sweet longing for reclaimed innocence to the author of Catcher in the Rye — she was his inspiration for his character, Esmé, a secret she kept out of loyalty to him for sixty years — at her memorial this summer.

But I didn’t want to go to her funeral. I wanted to remember the laughing, vital woman she was.

Because I was still afraid. Still that child, gazing on the rouged dead face of his mother.

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Letter from Beijing — Part Five

[Editor’s Note: Chapters One through Four of this book, Back From the Dead: A Landmark Ruling of Wrongful Conviction in China, can be found Chapter One, Chapter Two, Chapter Three, and Chapter Four. Generously shared in these pages by the author, it is the true story of China’s parallel to the O.J. Simpson murder case, which occurred around the same time. Here is Chapter Five.]


Doubtful Proof

On 10 October 1995, the Hubei Province High People’s Court handed
down its reconsideration in the case of She Xianglin’s intentional
homicide. It found that the facts were unclear, and the evidence
insufficient. It repealed the original decision and sent the case back
for re-investigation. [Note 18] The judge singled out some concrete
problems and dubious areas in the decision: for example, the
constant contradictions in the defendant’s statements as well as his
repeated confessions and subsequent retractions; his four different
statements about the course of events surrounding the murder of
his wife; the unfairness of using only one of these statements as a
basis for the decision; relying on the defendant’s confession to
maintain that the murder weapon was a stone without any other
basis for this belief; the question of Zhang Aiqing’s missing clothes;
and the reliance on pieces of indirect testimony that did not form a
coherent chain of evidence. For all these reasons, the court decided
that the possibility that the deceased had run away from home and
been murdered by someone else must be considered. Although the
relatives of the deceased had provided a petition with over 220
signatures demanding that the murderer be executed with all speed,
cases where the sentence might be death required ‘ironclad

Once the Jingzhou Intermediate People’s Court received the
reconsideration ruling, they returned the case to the procurator’s
office, which then sent it back to the police requesting further
evidence. The police, however, believed the case to be water under
the bridge and that there was no longer any means of gathering
evidence. Also, since the defendant had completely retracted his
confession, there was no means of verifying any of the oral
testimony. Hence, they produced an ‘explanation of the situation’,
which discussed the process of investigation of the case,
emphasising that ‘the entire process was lawful, and that the
confession had not been extracted under torture’. The document
was endorsed with the seal of Jingshan County Public Security
Bureau. When the procurator’s office received this and consulted
with the Intermediate Court, they believed the documents to be
insufficient to satisfy the demands of the High Court, and sent them
back to be modified. The police stuck to the belief that the evidence
was enough to convict She Xianglin and refused to investigate
further. The case, therefore, was shelved.

The problem was that the local government was facing pressure
from two different sources. Zhang Aiqing’s family continued to
petition and demand for the severe punishment of She Xianglin. At
the same time, She Xianglin’s family, with their ‘certificate of
sincerity’ were also petitioning and lobbying for the release of the
innocent She Xianglin. Suddenly, the case that the government had
lauded as a model of policing had turned into a hot potato that they
could not drop. Not only were they grappling with whether or not
the facts of the case were accurate, but also the reputation of the
police and their own future prospects. With their backs to the wall,
the Jingshan police had no choice but to go on the offensive.
Knowing that the ‘certificate of sincerity’ was their biggest threat,
they devised a plan of attack.

Mrs She was seized by the police on the grounds of constant
petitioning and taken to the police lockup where she was imprisoned
for nine months. Originally a sturdy village woman, when Mrs She
was released, she was half deaf and blind, and she died a few months
later. She Xianglin’s older brother was imprisoned on the same
grounds for more than forty days, and he was released with a
warning to never go above the police again. In addition, the police
tracked down some of the villagers from Yaoling Village who had
supported the ‘certificate of sincerity’ and forced them to change
their testimony to state that no such woman had been in their
village. The villagers resisted and, as a result, two of them were
imprisoned in Jingshan County Public Security Bureau for more
than three months. Other villagers felt compelled to flee the area.

At the same time, the existing Criminal Procedure Law that came
into force in 1976 was undergoing amendment. One particularly
controversial amendment related to the presumption of innocence.
For many years, the prevailing Chinese legal stance on the
presumption of innocence was that it was a principle of capitalist law
and there should, in fact, be no presumption of guilt or innocence.
The basic principle should be to examine the facts and seek the
truth. But prior to the amendment of the Criminal Procedure Law,
some legal academics believed the question of the presumption of
innocence could not simply be avoided. They argued that a country
whose legal system did not apply the presumption of innocence had,
in effect, a presumption of guilt. The presumption of innocence
places the burden of proof on the prosecution as the prosecution
would have to demonstrate in court that the defendant was actually
guilty. The presumption of guilt places the burden of proof on the
defendant, as the defendant would have to prove in court that they
were innocent. The presumption of innocence, it was argued, is a
distillation of the judicial experience of human society and a symbol
of a progressive and civilised legal system — in other words, China
should learn from the experience of other legal systems.

In March 1996, the Chinese National People’s Congress published its
‘Decision on the Amendments to the Criminal Procedure Law’.
Article 12 of the newly revised law set out the following rule: ‘Prior to
a judgment rendered by the People’s Court according to law, no one
may be found guilty.’ Although the Legal Committee of the National
People’s Congress claimed otherwise, this rule was not a
presumption of innocence; rather, it merely emphasised the
authority of the court to convict. Nonetheless, scholars tended to
believe that the new provision did possess the basic spirit of
‘innocent until proven guilty’.

The presumption of innocence involves three levels of implicit
meaning. First, before anyone can be found guilty in a criminal court,
they are assumed to be innocent. Second, in a legal trial, the
prosecution bears the burden of proof, and the defendant does not
have any such responsibility (since defendants have no burden to
prove their guilt, it follows that they have no burden to prove their
innocence). Third, if the evidence provided by the prosecution does
not meet the legal standards, the defendant is found not guilty; in
other words, legal judgments should respect the principle of ‘no
conviction without clear proof. Although the revised 1996 law did
not provide clear guidelines on who should assume the burden of
proof [Note 19], Article 162 stated: ‘If there is insufficient evidence and thus
the defendant cannot be found guilty, he shall be pronounced not
guilty on account of the fact that the evidence is insufficient and the
accusation unfounded.’ In advocating the principle of ‘no conviction
without clear proof’, this article embodied a certain spirit of the
presumption of innocence. However, in practice, it tended to clash
with traditional legal mindsets, and this was related to the standard
of proof in criminal cases.

Regardless of whether one looks at the 1979 or the 1996 version of
the Criminal Procedure Law, neither directly addresses the question
of standards of proof. Scholars have generally summarised the
standard of proof in criminal cases with the phrase: ‘The facts of the
case must be clear, and the evidence must be reliable and abundant’. [Note 20]
This principle is often referred to as the ‘two fundamentals’. The
first person to promote the ‘two fundamentals’ was the then head of
the Standing Committee of the National People’s Congress, Peng
Zhen. In May 1985, at conferences on law and order in five major
cities, he suggested: ‘At present, there are some cases where
judgments are not being handed down because the evidence is not
totally complete. In fact, a case can be decided if there is basic
evidence and if the basic circumstances are clear.’ Since then, the
‘two fundamentals’ have been used as the standard for the proof of
guilt in criminal cases. Additionally, a value system which
overemphasises the harsh treatment of criminals has contributed,
whether consciously or unconsciously, to a tendency to relax the
standards of proof. Fearing that they will be considered soft on
crime if they adopt the principle of ‘no conviction without clear
proof’, many judges apply the modified principle: ‘If the proof is
unclear, the sentence should be lighter’. This is particularly apparent
in death penalty cases: when there is insufficient evidence, or when
the facts are unclear, defendants are not sentenced to death but
rather given a commuted death sentence or sentenced to life
imprisonment. It was this tendency that paved the way for the
subsequent judgment in She Xianglin’s case.

At the beginning of the 1990s, China began a process of merging
cities and prefectures. One working paper [Note 21], published in 1993 by
the State Council, suggested: ‘Regional institutional reform should
be combined with the simultaneous adjustment of administrative
subdivisions. State agencies at all levels need to be dramatically
simplified. In principle, where prefecture-level cities and existing
prefectures co-exist, they should be administratively merged.’ On 2
December 1996, after the State Council approved the merger of
Jingzhou Prefecture with Jingzhou City, Jingshan County, which was
administered by Jingzhou City, was incorporated into the
administration of neighbouring Jingmen City.

In October 1997, the Politics and Law Committee [Note 22] of Jingmen City
convened a meeting attended by representatives from the Jingmen
City courts, procurator’s office and the police, as well as the
Jingshan County Politics and Law Committee. At the meeting the
police representatives emphasised their belief that She Xianglin had
murdered Zhang Aiqing, and the court representatives reiterated
the lack of sound evidence in the case. After some discussion, the
Jingmen City Politics and Law Committee decided to apply the
modified principle: ‘If the proof is unclear, the sentence should be
lighter’. They intended to downgrade the case from the Intermediate
Court to the Basic Court before proceeding with a three-step plan.
First, the Jingshan County People’s Procurator’s Office would raise
charges in the Jingshan County Basic People’s Court. Second, the
county court would attempt to ‘cap the case at first instance’ — that
is, they would sentence the defendant to the severest term available
in cases of doubtful guilt, in this instance, fifteen years’
imprisonment. The Intermediate Court would then affirm this
sentence, thereby ensuring that the legal process be kept local and
not return to the Provincial High Court, which might require further
police investigation.

On 15 June 1998, the Jingshan County Basic People’s Court
sentenced She Xianglin to fifteen years’ imprisonment and deprived
him of his political rights for five years. On 22 September 1998 the
Jingmen City Intermediate People’s Court rejected She Xianglin’s
application for appeal and affirmed the original decision, stating in
its ruling that the murder charges had been substantiated by the
forensic evidence, the autopsy, the reports of the murder locations,
the oral testimony of witnesses and the defendant’s ‘diagram of his
route’, which had been verified by the police. The ruling took
immediate effect, and She Xianglin was taken to Hubei Shayang
Prison to serve his sentence.

In prison, She Xianglin complained and appealed unceasingly. He
wrote thick volumes of appeal documents and kept several diaries.
They revealed some thought-provoking details about the
interrogations he had undergone:

(1) At one point I said that I had used a stone to murder her.
That was because the previous time I had said I used a
wooden stick, which the investigators pressured me to
produce. But I hadn’t killed anyone, so how could I do that?
I said it was a stone instead, so that if they asked again, I
could just hand over any old stone. That way I might not
have to suffer so much.

(2) The storage bag was something that the investigators
told me about. They had found a storage bag in the pond
that looked like it was made of snakeskin and they made me
mention it in my confession.

(3) The investigators made me draw a diagram of Guanqiao
Reservoir, but I had never been there, and since I had never
killed anyone, how could I draw what happened? On the
afternoon of 21 April 1994, when the investigators realised
that I was unable to tell them the location of the body, they
pulled me to a desk and drew a diagram for me and made
me copy it.

(4) On the way to the scene of the crime, we arrived at an
intersection on the side of a mountain. I began to turn down
one road, but then the investigators pulled me in another
direction, saying, ‘No, over this way.’

(5) When we got to the pond, they asked me where I had
killed her. I pointed to a random place. They took a photo
and demanded I show them the stone I was supposed to
have used as the murder weapon. As it happened, there
weren’t any stones nearby so they took me to another
location and asked me where I had dumped the body. There
was a lot of rubbish scattered nearby and so I said that I had
dumped the body there. They took a photo.

(6) After ten days of beatings, I was numb and tired. My
whole body was bruised, and I couldn’t walk or stand. I only
wanted one thing, which was to rest. I would comply
without hesitation to their demands so long as they would
let me rest.

She Xianglin had no idea whether his notes were being read by
anyone or not, but it seemed as if they were disappearing into the
void. When his family came to visit, he urged them to appeal to
higher authorities; they did, but their efforts yielded no results. She
Xianglin’s only hope was that the real murderer would be found but
as time went on, he began to lose hope.


18 The Criminal Procedure Law provides that, if courts of appeal believe the facts on
which a decision was based are unclear, or if the evidence is insufficient, a sentence
of death may be commuted or the case sent back for re-investigation. However, in
practice, very few courts of appeal commute the death sentence; generally the
method used is to re-investigate the case.

19 Article 49 of the 2012 Criminal Procedure Law states: ‘The onus of proof that a
defendant is guilty falls on the public procurator in a public prosecution case.’

20 Article 53 of the 2012 Criminal Procedure Law states: ‘Evidence should meet the
following requirements to be reliable and sufficient: (1) Evidence exists for each fact
serving as the basis for conviction and sentencing; (2) The authenticity of all
evidence needed to decide a case has been verified through legal procedure; and (3)
Based on a comprehensive evaluation of all evidence, facts have been proven beyond
a reasonable doubt.’

21 Zhongyangjigou bianzhi weiyuanhui guanyu dzfang geji dangzhengjigou shezhi
de yijian’ (‘Opinion of the State Committee for public sector reform on establishing
local Party and government organs’), Zhongbian, No. 4, 1993. This was later
published in China Local Government Organisation Reform Editorial Group (ed.),
Zhongguo dzfang zhen_qfujigou gaige (China Local Government Organisational
Reform), Xinhua Publishing House, Beijing, 1995, pp. 72-74.

22 Politics and Law Committees are responsible for the implementation of the legal
and police systems in their particular areas. Their responsibility is extremely broad,
and they have often been characterised by their loyalty to the Communist Party line.


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Kick the Can

Kick Me


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

Here’s one game you don’t play in (perhaps perfectly named) Lynchburg, Virginia.

Kayleb Moon-Robinson made the mistake of kicking a trash can in plain view of a sharp-eyed, though possibly dim-witted, police officer, who diligently filed a disorderly conduct charge, a misdemeanor, against him with the court.

He’s eleven. He’s black. He’s bad, according to the officer and principal of the school where Kayleb attends sixth grade, as pestilent a breeding ground for bad kids as ever was.

Barely had the ink dried on the police blotter before next thing you know Officer Friendly was arresting the black boy again, slamming him to the ground just so’s he’d stay put while slapping the cuffs on. He didn’t break a real law this time, but rather a special rule the school came up with to keep him in his place: he was always to be last of the kids to leave the room. Not exactly back of the bus; still, back of the class.

Realizing they ain’t supposed to have no Jim Crow laws no more, this fine officer improvised, charging Kayleb with felony assault against a police officer, because mayhap the officer pulled a muscle while slamming the little brat to the ground. He briefly considered charging destruction of school property, but talked himself out of it when he realized that, while the boy’s glasses were broken when the thinking man’s cop was forced to bodyslam him ON school property, the glasses themselves weren’t school property, not really. Although, that argument may be reserved later for some right-thinking district attorney.

I may have forgotten to mention that Kayleb lives with autism, a condition known to all the concerned officials, who said while he has special needs, he just needs to “man up.”

Kayleb may indeed someday man up as they are teaching him to do. Little boys sometimes grow into big boys. And while Virginia boasts eighty-nine thousand sheep, Kayleb might not be one of them.

[Editor’s Note: This story was sent by my sister from Redding, California, where when you walk down the street and pass ninety-nine people, the next one may be black if you look real quick.]

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Letter from New York


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

Had he lived, Franklin Delano Roosevelt would be 133, and probably still President of the United States.

John Q. Barrett, who teaches criminal procedure at St. John’s University School of Law, is somewhat younger, very much alive, and responsible for one of the more penetrating biographies of Roosevelt. While gathering material to write a forthcoming biography of someone else — Supreme Court Justice and Nuremberg prosecutor Robert H. Jackson, a Roosevelt appointee to the Court — Barrett discovered in Jackson’s papers an unknown mémoire of his working relationship with Roosevelt dating from 1911.

Barrett edited the raw manuscript and turned it into That Man: An Insider’s Portrait of Franklin D. Roosevelt. The work has been called “admirable…even heroic,” “lively, revealing,” and “a rare and happy event.” In the interest of balance, one Amazon reader (that may be too strong a word) dinged it with one star because it didn’t have any pictures.

On this St. Patrick’s Day, Professor Barrett has been kind enough to share the story of another St. Patrick’s Day, seventy years removed, that also happened to be the occasion of Franklin and Eleanor’s fortieth wedding anniversary, which Justice Jackson (also a dear friend) helped them celebrate.

Please allow yourself the treat of reading it here.


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