Deep questions for judge candidate Little: Whom does state represent?

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Mike Little is a criminal defense attorney seeking election as criminal court judge in Hamilton County, Tenn. (Photo Mike Little election campaign)

Mike Little is a criminal defense attorney seeking election as criminal court judge in Hamilton County, Tenn. (Photo Mike Little election campaign)

By David Tulis

Mike Little is a criminal defense attorney in Chattanooga who is running for criminal court judge in Hamilton County in one of its three divisions.

His job in the public defender’s office entails overseeing trials for criminal charges, some of which are for alleged acts which are evil in themselves (mala in se) and some that are mere paper crimes, or offenses of prohibition (mala prohibitas).

I am interviewing Mr. Little on AM 1240 Hot News Talk Radio. At the most we’ll have 50 minutes to hash out the issues, difficulties and contradictions that are part of the job of criminal court judge. Judges are the primary element of government in the biblical conception. The modern state grew up around that office, that ministry of the sword. The state supplied executive branches (to execute government) and legislatures (to add man’s laws upon society, God’s laws being too few and insufficient for its purposes). But the original conception from the Word of God is that courts determine evils and stamp out evil doers, and also settle disputes that we’d call of civil nature. That task is pretty much the limit of the king’s or the magistrate’s authority and competence.

Here are some of the topics I will try to reach. Here is my interview.

➤ Mike Little, you are the deputy district attorney and executive assistant to Steve Smith, the elected public defender. Is your office largely a plea bargaining mill, where few people go to trial? Shouldn’t the state be forced to try every case, in the interest of justice, and to help keep prosecutors connected to the will of the people, who may reject certain lines of prosecution as unjust? But then you lack resources, don’t you, and have not resources to make the state justify every prosecution.

➤ As criminal judge, how do you view victimless crimes? What are crimes in this category for which you would tend to give lenity to a person whom the jury convicts?

➤Are not most of the people dragged before criminal court judges people at the lower end of society, folks who live in poverty, with families broken, wages poor, accomodations lacking and education limited? Are not poor people those facing a majority of charges for victimless crimes such as speeding, driving on expired, driving without insurance, carrying a gun without a permit, and so on? Does not the criminal court of Hamilton County grind MOSTLY against poor blacks, poor whites and hapless Hispanic immigrants?

Legal fiction of state

➤ How does the state get standing to prosecute anyone? Generally at law, to have standing, one has to have a right that has been violated, resulting in an injury. The nature of the injury is concrete, or physical, not abstract and not a group. Where does the state get standing to prosecute a victimless crime?

➤ How is the state offended and what gives it cause to prosecute? Is it because it has codified many crimes, and that its prosecution is less on behalf of the victim of a rape or murder but on behalf of its own rules? Does the state care about victims, or just its own pages of type in the lawbook?

➤ Is there a fundamental problem with having the state prosecute crimes, and not doing it on behalf of the victim, as agent of the victim?

➤ When the state’s attorney reads an indictment aloud at the beginning of the trial, it says the defendant has violated “the peace and dignity of the state.” Does that have any real meaning, or is it a sort of window dressing or marketing for the very concept of the modern welfare state?

➤ What is the state if it is the moving party? What is the evidence of the complaining party? This question is not answered by the name of the complaining party (the State of Tennessee, a sort of religious corporation) but for the evidence of the complaining party, the evidence of its existence. Who, pray tell, can give this evidence (if there is any)? How might this evidence be entered into the proceedings? If there is no evidence of a complaining party, how can a criminal trial proceed?

➤ Do criminal court judges predecide cases and manage the hearings, motions and court proceedings to serve a predetermined end? Is there any sort of internal or secret necessity (pro-gay, pro-state, pro-incumbent, pro-government) that drives verdicts, especially in cases where the defense challenges a state prerogative or policy?

➤ In criminal cases, does the judge have built-in bias for the prosecutor and the state, seeing that the men involved all get their paychecks from the state or one of its subdivisions?

‘Necessity’ & its danger to liberty

➤ In the code of judicial ethics in Tennessee, the word “necessity” appears one time — and it makes a most dangerous appearance. It’s in a note about what disqualifies a judge from sitting on the bench.

The rule of necessity may override the rule of disqualification. For example, a judge might be required to participate in judicial review of a judicial salary statute, or might be the only judge available in a matter requiring immediate judicial action, such as a hearing on probable cause or a temporary restraining order. In matters that require immediate action, the judge must disclose on the record the basis for possible disqualification and make reasonable efforts to transfer the matter to another judge as soon as practicable. ( TENNESSEE CODE OF JUDICIAL CONDUCT http://www.tsc.state.tn.us/rules/supreme-court/10, Page 18) [Italics added]

Now the details that explain the main sentence are innocuous. But the concept of necessity is introduced and I suspect it provides many outflows, many course of actions quite aside from those given as examples. By necessity do courts constrain constitutional rights, reduce defendants and make impossible and ludicrous their assertion of God-given rights? Is this doctrine of necessity a blank check for you on the bench? Is not always necessity the tyrant’s plea?

➤ Mr. Little gives an excellent interview with me in 2012 explaining how city courts work. I suggest you give it 15 minutes reading time.

➤ Mr. Little as a defense attorney has a built-in predeliction against the state and for the individual brought before its tribunals either for paper crimes (pretended and victimless crimes) or common law crimes (murder, rape, robbery, theft). With that in mind, apart from any knowledge about Mr. Little as candidate, dad or human being, you have therein at least a half-vote in his favor. In the race he has two opponents: Tom Greenholtz, named by Gov. Bill Haslam as interim judge after the retirement of Judge Rebecca Stern; and prosecutor Boyd Patterson, whose job entails defending the interests of the state of Tennessee.

— David Tulis hosts a talk show weekdays in Chattanooga from 9 to 11 a.m. on 1240 AM Hot News Talk Radio, covering local economy and free markets in Chattanooga and beyond. Support this site and his radio station on the real airwaves in Chattanooga, on your smartphone via the TuneIn radio app or at Hotnewstalkradio.com. You back David by patronizing his advertisers with specific reference to him. Even better, encourage independent media by having David run commercials for your business. Also, “buy me a coffee at the tip jar.”

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