Public defender Mike Little says there is no conspiracy within the court system to oppress the working poor who run afoul of the state’s many “victimless crime” rules.(Photo 2012 David Tulis)
By Esther Taj
Attorney Mike Little has worked in the Hamilton County public defender’s office 1 ½ years and is a candidate for criminal court judge. He fields probing questions from David Tulis, a proponent of constitutional government and a scaling back of the role of the state in the innocent business of Chattanoogans and Tennesseans.
➤ About whether juries have the power to judge evil laws and ignore them
➤ The high-tide claims of administrative law on courts (does he administer cases or adjudicate them?)
➤ The prospect of courts’ being fee skimming machinery against the poor (they’re not, he says)
➤ The duty of judicial impartiality and fairness
➤ The possible “out” in the judicial rules that seem to allow arbitrary despotisms under an ancient doctrine beloved of tyrants
➤ Whether public defenders’ offices run a “plea bargain mill”
➤ The prospect of using the cloud to embarrass unjust judges by continuous live airing via smart devices of all criminal proceedings.
This Feb. 4, 2016, interview with David Tulis of Nooganomics.com airs on the YouTube channel of AM 1240 Hot News Talk Radio in Chattanooga. https://www.youtube.com/watch?v=AhG8GpTTqQ0
David Tulis: There are three candidates for criminal court judge, Tom Greenholtz nominated or named by Gov. Bill Haslam to the bench in the division, he is the incumbent, and he is seeking for the first time. Also, Boyd Patterson who is a prosecutor and, also Mike Little who is a defense attorney. Mike and his wife, Lynn, have three children. He works in the public defender’s office. He is the deputy defender which is like the executive assistant. He helps Steve Smith who is elected to oversee 14 assistant attorneys who are named by the state to identify or just to defend people who don’t have enough wherewithal to hire their attorneys and to maintain their rights. Mike, how long have you been a public defender?
Mike Little: I have been working in the Hamilton County Defender’s Office here 16 months.
David: Is the public defender’s office one that vigorously prosecutes trials or is it known more for copping pleas among defendants?
Mike Little: Well, what we do first of all when the court determines that an accused is indigent, our office is appointed. We don’t solicit business or anything like that. The court appoints us, and then we take the case. If we don’t have a conflict for any other reason, we take the case just as if we were hired. We represent the client and we make sure his rights are protected. We give him advice pursuant or whatever he decides, we pursue a strategy.
David: Well, how often do cases go to trial of the body of defendants that you have in a year.
Mike Little: It’s rare.
David: Why is it rare?
Mike Little: Well, most cases are settled. If the client is accused of the crime and the facts presents themselves with the likelihood of conviction are great, then the defendant has — after considering all the advice and looking at what state can put against him or introduce in a trial against him — he has the right to make a decision. Sometimes if the government’s, which is the district attorney’s office, offer is less than what he thinks he would get in a trial and if he thinks he is going to be convicted in a trial, he can make a decision based on advice to make a plea.
David: So most defendants who are served by the public defender’s office are convinced — either they have convinced themselves after hearing the advice of one of the 14 assistant attorneys — to make a deal with the prosecutor or get a lesser sentence and not go to trial.
Mike Little: That is not just in the public defender’s office. That’s typical in representing the defendant overall whether you’re hired or not. It’s not just in the public defender’s office that that occurs.
David: Is there not some way that more trials could be forced upon the state making the district attorney earn his pay? District attorneys are often very well versed in negotiations, but hardly enough in courtroom proceedings. Mike, is not in courtroom proceedings that validity of law is established? If juries keep rejecting a certain line of prosecution, is not that a signal to the legislature to change the statutes or to stop prosecutions in a certain line of offense? How can we determine whether there is bad law out there unless you defend defendants, make the prosecutor fight for his conviction?
Mike Little: It comes down to the facts in the case, what the evidence is. We have a lot of cases that are dismissed. Those you don’t see. They don’t get the publicity that some of the cases get where people actually plead guilty. There are actually a lot of cases dismissed as well. People who have been overcharged or wrongly accused. Those cases through the work of the attorney in the investigation of the team — that happens.
David: When you say overcharged, what phenomena are you describing?
Terrorizing defendants
Mike Little: I’ve been practicing for 18 years. I’ve always considered when I look at a case any criminal defense lawyer going to represent what I consider; you place them in three different categories: One the person who has been accused after the evidence has been presented may have actually committed the crime — that’s possible. Second, I consider is someone who has been overly charged, charged more than they should have been charged with.
For example someone has been charged with first degree murder and it turns out that it was actually an accident. It may have been a negligent homicide case. That is an example of someone being overcharged. Third category I look at is someone who is wrongly accused.
David: There is a phenomenon in modern jurisprudence called charge stacking in what I have read about and there you will have accusations of a defendant who fled from the scene of an arrest and go involved in an accident and may have had a handgun. *** You are overcharging with six or seven accusations in addition to the assault which was the cause of the chase. Is charge stacking a method by which the state bullies defendants into submission and plea agreement?
Mike Little: No, what I see is for a police officer or law enforcement engages in any kind of investigation of the case, whether or is actually part of a direct witness himself — If he sees any violation of the law, he thinks rises to a level of probable cause. He can make that arrest. He can make that charge by affidavit and complaint. Now it is up to the prosecutor to determine who he wants to pursue that prosecution in all those cases and then the defense has a defense on any of those charges, then they will be able to litigate. I don’t see that as a problem.
David: Charge stacking is not a problem in Hamilton County. To bully the defendant into submission is unjust and piling on of charges.
Mike Little: No, I do not think so, and we’re not going to allow that.
Plea bargaining’s role as state grinds ever on
David: Mike, you would also say prosecutors can’t fairly accused of the sin of charge stacking, the public defender’s office is not a plea bargaining mill where everybody is just run through pro forma?
Mike Little: No, we represent our clients depending on what the facts are of the case. The client is given the advice and the client makes the final decision. We don’t force anybody to plea. We don’t force anybody to go to trial. It’s up to the client.
David: My listener has a prejudice. I would like for you to address this prejudice Mike Little and that is that the court system grinds the common man down to the ground. It’s a fee skimming operation. The people who mill around in these courts are often the poorest of the poor. They drive old cars. Their offenses are often paper offenses: Victimless crimes — no tag, no license, gun without a permit, and no accident insurance. The people who are most abused by the judiciary are the commoners, not the white collar types like you and me. But the common people who have bad grammar. They have two jobs. They have debts. They wear old clothes. They’re sort of shabby in their appearance and the dad has bad teeth. These are the people whom the court seems to grind down and not care anything about. Is that observation true — or partly true? And if it is, what might be a remedy for giving a break to the people by the state?
Mike Little: I don’t think there is any conspiracy or orchestrated group of people who are out there to abuse those who are accused of crimes. What you will see sometimes in our system is that we are overloaded and overcrowded some days some days. Some days we have a lot of cases of people who are in the court for the first time or they have been there several times. Maybe for small offenses. Maybe there fourth, fifth, or sixth time to go to court. In that sense, they a sense — maybe — they “have to go to work.” “I have to take care of my kids.” “I can’t go to court or I’m going to lose my job” or “can’t take off work.” That does happen sometimes.
Most of those clients are in custody because they are determined [to be] indigent. If you are in custody, you are not working. You are not making an income. You are going to be indigent. Most of our clients are in custody. That’s not all. There is the defendant who comes to court sometimes and simply pleads so he doesn’t come back. I’ve seen that happen.
David: He pleads for convenience?
Mike Little: It’s not any conspiracy. I know there is not any kind of orchestrated governmental body making that happen.
David: *** Caller you are on the line with Mike Little, attorney and candidate for criminal court judge. What’s on your mind?
Caller alleges abuses — but ones stopped by juries
Caller: *** Mike, I have experienced personally for the past 35 or 40 years absolute abuse from the judges, not federal judges. In one case I wanted to defend myself and they refused my right to speak under the Sixth Amendment and they said I had to get an attorney. I find these local judges to be the most corruptible. *** If they believe you know your rights and are in there a second or third time,
David: [laughter]
Caller: — you are the last to go because they don’t want people to hear it. That’s a general statement based on 40 times in court on constitutional issues.
What are you going to do differently than the rest of these judges? Are they afraid of individuals’ bringing up constitutional issues or constitutional law or the constitutionality of their rights — or they don’t care about it? Or are they ignorant of it? I know I’m asking a lot of questions here, but overall as a defense attorney, what have you seen in the system that has been corrupting judges — monetary corruption in judges whether it has been judges downright being mean, not letting people speak, or ignorant of the law? And what are you going to do differently than every other local judge that may have a lot of training to protect the individual rights of that individual person? Let me tell you I think this position you are going for is more important than for the supreme court because where you are you can stop the tyranny right then and there.
Mike Little: First of all, I understand your question. I understand your feelings about the system. I don’t totally agree with your premise. What we do not want, what I’ve seen over the last 18 years sometimes is crowded, sometimes it’s busy, and when the defendant goes before the court, he does not have a lawyer. I’ve always thought that was the wrong thing to do. I don’t care if it is a speeding ticket or on up. I’ve always felt that anyone who goes to court or anyone who gave me advice over the years or asked me, I have this ticket, got this small offense, do I need a lawyer? My response is always “Yes,” whether it is me or somebody else.
‘Independent, impartial and fair’
Now, speaking for me, the court is supposed to be independent, impartial and fair. Those are not words I am making up. Those are words that come right out of the judicial code of conduct. The court is supposed to be “independent, impartial and fair.”
David: Independent of whom?
Mike Little: Independent of everybody. The court is independent. We’re not favoring the government and we are not favoring the defense. We’re in the middle and we listen to the facts and apply the law.
David: You’re independent even though you are paid by the state and the state’s division, the county.
Mike Little: Yes! That’s correct. You have to understand when you take the bench. I agree with you, the trial court is an important court where the trials are had. That’s the court of record and that is where cases are solved. Justice is not necessarily about the prosecution winning, but it is about doing the right thing. Justice is giving every man his due under the law.
The just judge
David: And so Mike Little in your estimation, it is possible to be a just judge? It is not impossible to be a just judge?
Mike Little: No, it’s very possible. I’ve seen it. I’ve been before over 30 judges in my career.
David: Federal, state and local?
Mike Little: State, local and municipal courts. I’ve been working in 13 counties. I’ve been in Knoxville and Chattanooga in federal court. I’ve argued before the criminal court of appeals. Tennessee supreme court as well as the sixth circuit court of appeals in Cincinnati at the federal level. I’ve had good results and I have seen fair judges who were independent and impartial.
Freudian slip: Whence supremacy in U.S. system?
David: And these fair judges, Mike Little, look at the statute and the law in view or in light of the constitution?
Mike Little: Yes, all criminal law, especially on the state level, law especially in seeking this position is codified. All criminal laws are codified and placed in statutes. The legislature makes the law. It’s called positive law. It’s man made law. The supreme cour — the constitution is the supreme law of the land and it cannot violate the supreme cour — I mean the constitution of the United States as well as state constitutional issues.
Problem of victimless crimes
David: Is there a distinction between victimless crimes, Mike Little, and crimes? What’s the distinction?
Mike Little: Victimless crime? I’m not sure there are victimless crimes. Even if someone is charged with DUI and no one is hurt and there’s not a victim, society is a victim —
David: — because risk increased if that person is on the road.
Mike Little: Right, right. If they are guilty and they are not punished, there may be a victim later on. So, no. All crimes are against the peace and dignity of the state and that is what the prosecution has to decide.
David: Describe the peace and dignity of the state, as we real thing. When a person commits a victimless crime, let’s say driving on a suspended license, expired license, or no tags, how is the peace and dignity of the state offended enough to be actionable? How does that happen?
Mike Little: Well, an example like this if you are without a license, there is no true victim unless you end up driving and end up hitting someone and you do not have insurance. That’s what you want to prevent. We don’t want anybody getting hurt. There’s a law that says you have to have a driver’s license. And that’s passed by the legislature. That’s a state law.
David: So that’s compulsory.
Mike Little: If you want to drive a vehicle in the state of Tennessee, the legislature says you have to have a driver’s license and if you are caught in some traffic stop and it’s a valid traffic stop, and you are not driving with a license, you can get a citation or get arrested. You have to go to court and answer those charges. That is the crime against the peace and dignity of the state.
Jail or prison for paper ‘crimes’?
David: My listener has followed our work on this question. Title 53-50-301, which is the driver’s license statute, which is not , if you follow the rules of statutory construction — it is not compulsory, but it is a voluntary mechanism allowing people to enter into an equitable relationship in commerce with the state. But that point aside, Mike Little, and the victimless crime, you’re saying there is not a victimless crime.
My next question is, You would not be in a position to leniency, lenity, and grace, favor, generosity to a defendant coming up for sentencing of a crime in which no one has been hurt? Again, I’m talking about a paper crime.
Mike Little: In sentencing, if someone has committed a crime the law says they have to be sentenced. The court has to follow the law. The judge is sworn to that duty; he has to follow the law.
Now the judge has to first look to alternative sentencing. If someone is driving without a license, in reality they probably should not go to jail. I mean, I don’t think they should. And the laws allow that. We don’t want to fill our jobs up with nonviolent criminals and I wouldn’t even call some who’s driving without a license a criminal unless they’re declared that. And there is a way to do that.
David: Unless you’re convicted of driving on suspended, you are a criminal.
Mike Little: You’ve been convicted of a misdemeanor, that’s right.
David: So here’s one little window you’re opening. If someone is convicted before you of a victimless crime, a paper crime, you would try to find an alternative to jail?
Mike Little: I wouldn’t try to, I would. The citizen’s statutes allow the courts to look to alternative sentencing, which is not going to prison. You may have a sentence or a sentence to to the workhouse, but you don’t have to go prison or into custody.
David: This is David Tulis, talking to Mike Little, a public defender who is a candidate for Hamilton County criminal court judge. The position is held for the moment by Tom Greenholtz, who is appointed by the governor. There’s one other candidate, Boyd Patterson, who is prosecuting attorney always representing the interest of the state.
Defense attorney vs. prosecutor as candidate
It seems to me that a candidate who is a defense attorney has already half of a vote because he represents the commoner, the common man, whereas the other two men represent in some fashion the state. The judges and the prosecution always representing the state.
Let me ask about prosecutors. Why are cases styled State of Tennessee vs. Joe Six-Pack? Why not have the people of Tennessee vs. Joe Six-Pack — or other? Why is “the state” the offended party, when clearly in a rape let’s say, a woman who’s been violated and SHE is an injured victim?
In rape, how does state become offended party?
Mike Little: Well, the style of the cases, the plaintiff always goes first. So in a criminal prosecution, the State of Tennessee is plaintiff so they go first. The State of Tennessee vs. the party.
David: So [the state] is the offended party?
Mike Little: It is the people of the state.
David: Isn’t the party the one that has been offended?
Mike Little: So the prosecution by law prosecutes crimes and the crimes are again codified by the legislature. That’s their duty. That’s their function. The victim in the case is the witness and most often is the prosecution’s witness. They normally have a desired result.
David: So the prosecution is not really for the person who is the victim, the rape victim. It’s for the state whose peace and dignity have been offended by the rape by the person who is a witness now. And that’s cases are styled, State of Tennessee vs. Joe Six-Pack. Is that a fair description
Mike Little: Well, the witness and victim in this case. And, yes, the style of the plaintiff always goes first because they are bringing the indictment, which is the charge.
David: If it were a private suit, Mike Little, it would be Phyllis Jones, the rape victim, vs. Joe Six-Pack, if she was bringing the prosecution in civil court.
Mike Little: Whoever files the original report is the plaintiff and whoever answers becomes the defendant.
David: This David Tulis. We are talking with a candidate for criminal court judge, Mike Little, who has fathered three children. His youngest is 13, a very pretty girl as you can see — you can see is holding an elect Mike Little poster on Facebook. He has two other children, sons ages 26 and 28. Mike is a public defender. His office is in the Tivoli Center on Broad Street. He as the deputy public defender in Hamilton County overseeing 14 attorneys.
Why should we care about courts?
Mike makes Steve Smith, the elected public defender for Hamilton County, look good and together these men oversee 14 assistant attorneys who defend paupers in our town, who can’t afford their own defense, but who have rights to be defended in Court. Mike, if you become criminal court judge, what is it that you have to offer? Why should we care a wit about you?
Mike Little: Well, Hamilton County criminal court is a very important court, David. It is the trial court, a court of record. Serious cases go into criminal court. Homicide cases, sex offense cases, violent crime, drug cases, DUI cases. A lot of serious cases go into trial court and that is where the defendant exercises the rights to a jury trial, the state of Tennessee exercises the right to a jury trial.
Why do I want to take this position? because I’ve worked in the criminal court for the last 25 years? Because I’ve spent the first six years of my career when I was in undergraduate school and law school. I worked for three criminal court judges all in Division 2 — the same court I’m running for now. I have been practicing for the last 18 years in criminal court, not just in Hamilton County, but all around, 13 counties I practice in. And I’ve tried over 53 trials in the State and Federal Court. That brings a lot of experience. I’ve not tried one case or two cases as a legal attorney, but 50 legal cases. I’ve picked that many juries for my cases.
So, if you want someone to sit on the bench and preside over cases, that individual in my mind needs experience. Someone who has been there, someone who has seen it. I’ve dealt with law enforcement agencies. I’ve dealt with thousands and thousands of accused and victims, and witnesses in cases I have had to interview. So that in and of itself helps me become a good criminal court judge.
Great hidden player: Commercial government
David: We live in a state that runs on grounds of commercial government. Mike Little, everything is in commerce. Most of the state seems to operate in commerce. When you are a criminal court judge do you adjudicate cases or administer them?
Mike Little: Well, what we do is follow the law. Whatever presents itself in court — and basically here is the way it works. If there is any kind of issue that is raised by one party or the other, the facts, there is evidence introduced. The court allows that evidence in under the rules. But the court is neutral. We don’t favor one side or the other. If you will, we have the blinders on our eyes. We listen to the evidence and then with that we apply the law and make a decision. And that is in any case that comes before the court. A jury is the trier of fact. They listen to the evidence, then they apply the law as the court gives it to them, and the court does not sway in any way, one way or the other, in that process.
David: But it sure can say — during instructions when there is haggling or the judge reads the instructions to the jury before they go behind the closed doors. What the judge says is the issue — that can determine how the jury will rule, right?
Mike Little: Well, the judge has to present the law under the law. The court has to give whatever facts of that case are or the judge has to give the law that’s applicable to it. He’s required to do that under the statutes in the law. All the law is codified and the procedure is approved by the Tennessee Supreme Court. The court has to follow that. I don’t have the discretion to give certain instructions to the jury or not unless there is law that allows that. Both sides make the argument and I decide based on the law.
David: So it’s possible, Mike Little, despite the skepticism of my listener about the judicial system, despite his sense of the growing concerns of the state of police or especially with police brutality. It is possible — you’re telling my listener — to be a just judge in Hamilton County?
Mike Little: Yes, that’s why I want to run. I want to be independent, to take that spot and be independent and serve on the court like it’s supposed to be. It’s independent, it’s impartial, it’s fair. The judge that takes that spot has to have the experience that I have, I can do that.
Judicial ‘necessity doctrine’
David: the Tennessee Judicial Rules of Ethics prattles on for about 45 pages or so which makes for some very lively reading. I found on page 18, Mike Little, I want to ask you about it. I found a real sparkler. It seems that there is an out; there seems to me to be an out in which judges don’t have to do what you say they are required to do. It’s in one of the comments. It’s about rules for disqualification. How would a judge be disqualified? Explain the concept.
Mike Little: Disqualified from a case? If I’m fortunate to be the Hamilton County criminal court judge and someone comes before me that I have to rule on and I know them from some previous encounter for whatever reason, then I would recognize that. I would step off the case. I would recuse myself. Another criminal court judge would take that.
David: Or you would at least I would say something about that connection
Mike Little: I would let both parties know. There may be an appearance of impropriety. It’s not that I would rule in his favor. I would not do that, but we would want to avoid the appearance of impropriety. So I would step away from it.
David: So a disqualification is when you say someone else says a judge is disqualified for reasons of personal or professional connection or empathy or the judge may say, “Hey, I might have an appearance of some kind of empathy which might make it look like I’m not being just. O.K. So that is what disqualification is. But in the comments on these rules it says, “The rule of necessity may override the rule of disqualification which means it says if necessary the judge doesn’t have to follow all the 48 pages in these rules of judicial ethics, especially on being qualified or not qualified to hear a case.” How is it that necessity can override a rule like qualification?
Mike Little: There may be an issue that is brought up by one of the parties. Unless the judge points out to the judge there may be a reason here to recuse himself, the judge may not agree with it. It doesn’t mean I will agree with it. One thing is, if a judge does not agree with it and stays on the case, he has to put in writing why he is not going to recuse himself. Anytime Mike Little is presented with this kind issue, I’m going to look at the law. I’m going to do what’s right. I’m going to avoid any appearance of impropriety.
David: So it’s not just avoiding impropriety, Mike Little. It’s avoiding the appearance of impropriety and so you would say this out in the code of ethics, the the necessity out in the code of ethics would not be an out that you would take. You would want to avoid impropriety as a judge and also avoid the appearance of it.
Mike Little: Right. If I find if that’s the case, how I would handle it that what any judge would do.
David: [Laughter] My listener asks about necessity. You’ve heard the old saying,touching on past despotism, “Necessity is the tyrant’s defense!” We had a war with Germany; so now President Roosevelt nationalizes effectively the whole economy “out of necessity.” He puts the Japanese citizens in concentration camps during the war for four years “out of necessity.” The necessity is always the out.
And I think the listener is worried about that. He’s worried that his life will [not] be protected by the system in general and does not want to vote for anybody that might plead necessity in dealing with him if he is either a victim before the court or a defendant before the court.
Mike Little: David, I am going to remain independent, impartial and fair. That’s the simple rule in my mind when looking at an issue like that.
Are judges truly independent, or mere hacks for the state?
David Tulis: Well, getting back to my question, Mike, whether cases are adjudicated or administered. Adjudication is what a criminal court judge is supposed to do. He’s supposed to decide based on the law the dispute between the state and the accused. When it’s administered that’s a completely different process. It’s all there in state jurisdiction to begin with. You administer a case when it is in administrative jurisdiction, which is the jurisdiction where agency trials are held. It was involved in agency trials in the past. I was tried in agency in the Department of Safety in the boughs of bureaucracy. So that case was administered by a hearing officer in a contested case. But you’re not administering cases, are you? You’re adjudicating cases?
Mike Little: In my private practice, I represented people and handled administrative hearings and the burden of the test is on the petitioner by the preponderance of the evidence. It’s much less than in a criminal case. But is civil in nature. The liberty of someone is not at stake.
David: It is a dispute amongst contractors, people in contract.
Mike Little: Those are different. Criminal court of the state it is beyond a reasonable doubt. And if a defendant is found guilty in a case, then the Court puts down a judgment based on that finding.
Jurors’ authority to decide the law
David: We have an e-mail here. The question is, “Can a jury ignore the instructions and find a defendant not guilty even though the evidence supports the verdict of guilty.” Is there the right of the listener or a jury member to nullify the whole thing, and just throw regardless what he might hear from the bench?
Mike Little: That is a question about jury nullification. Jury nullification is not something we cannot get up and argue in the state of Tennessee.
David: What do you mean by that?
Mike Little: It is not permissible. We cannot get up and say that you have to ignore the law. I cannot do that as an officer of the court.
David: No one is saying you have to ignore the law. The question is: Can you ignore the law? Can the listener ignore the law?
Mike Little: The jury proceedings are private. They happen behind closed doors. and what happens behind closed doors we don’t know, and they don’t have to reveal that at all. Unless there is some huge impropriety or someone bullies or threatens someone that comes to light and it ends up in a guilty verdict. Then that’s obviously of some interest to the defendant because — again — their liberty is at stake. But if a group of 12 don’t like the case, and they decide that they don’t like the case, and they find someone guilty or not guilty depending on what the situation is? The defendant has the right to appeal. The state has the right to appeal — unless it is a not guilty verdict.
The people’s explicit right to judge law
David: Our state constitution says on the point of libel — in the reference on libel — juries decide on the facts and the law. So there is an explicit reference to the jury having the authority to judge not just the facts, but the law itself in a particular prosecution.
Mike Little: That’s right, they judge the facts and the law as given to them by the judge.
David: The phrase “as given to them by the judge” grates on my listener’s ears, Mike Little.
Mike Little: Well, the listener has to understand and it’s good that we are concerned about what happens in criminal court because someone’s liberty is at stake. And that is what a judge has to remember. And that’s the importance of experience, I think. The court has to remain independent, impartial and fair — has to apply the law, and is sworn to do that.
David: And he has duty to do that because he is sworn to do that before God before taking the oath of office. But the jury hasn’t made that promise. It is simply in it and I would say the jury is a judge of the law and its members can decide in the face all of the evidence if they don’t like the apparent malice of the prosecutor on the defendant, or if they like or have some particular sympathy for the defendant, they can say, “Well, no, we can throw the whole thing out. As you say, it is in secret and no one can know about their private counsels.”
Mike Little: Actually the jury is sworn.
David: What is the jury sworn to do?
Mike Little: They’re sworn to follow the law to render a true verdict according to the law.
David: The law as they hear it could be the constitution, it could be the law of God and the judge perhaps — the bailiff having them raise their hands [in oath] — is probably referring to the Tennessee Code, but they may hear it differently, right?
Mike Little: They listen to the facts in the case, they listen to the law, the judge applies it. When they get behind closed doors they do their voting and they have their discussion of whatever the verdict is has to be respected.
Prospect for reform? Live on the cloud?
David: What about reforms in criminal courts in Tennessee. Look at not just your proposed tenure on the bench in Hamilton County? What in Tennessee say in the next 10 years would be worthy of reforms making courts more open, making courts more accessible, maybe allowing — I have an idea. But what do you see as possible that would benefit the public and ensure more instances of justice?
Mike Little: More involvement, people becoming more informed, watching the courts in action, seeing what goes on. Court is open to the public. You have no closed hearings in criminal court. It’s a court of record.
Everything that goes down in criminal court, you can see it, you can look at it, you can read it, and it’s actually recorded. The voice is recorded. I think as a criminal court judge, I would always look for ways to improve the system as best as I can, using the calendar and the clock, saving people’s time when they come to court.
There are a lot of people that come to court. Your life may not be touched by criminal court, but one day it might. You may come as subpoenaed as a juror; you may come as a victim in a case. I hope that doesn’t happen to anyone out there. You may be a defendant who is accused of a crime. Or you may be law enforcement or you may be witness. All those people who come to our court we don’t want them to have to say and linger and wait for justice.
Willful failure practice unenforceable
David: This is David Tulis and caller you are on the air, live on Talk Radio AM 1240 chatting with me and Mike Little, who is an attorney and a candidate for criminal court judge in Hamilton County. What’s your question?
Caller: I’m so glad you ask that question about jury nullification. Mike, I’ve covered trials and I’ve watched one where a man was charged with over 50 federal counts. One was willful failure to file [a tax return]. One was impeding the lawful functions of the IRS. The jury found him not guilty on every count. But on that one they were hung. I heard the judge say in the courtroom, “The government spent over $2 million on this case. You go back and make a decision.” And to me, the judge was telling the jury to find him guilty. I’ve seen that over and over again.
And in Montana — here’s where jury lawlessness comes out. Yeah, but what is the law? In Montana they can’t get a conviction on willful failure to file a return.
David: That’s a federal case —
Caller: Under Title 26 there is not a requirement to file. The government will charge you with willful failure to file without under Title 26 there being requirement to file. Montana citizens are educated, and no longer are those charges brought up against the people in court.
David: What’s your question?
Caller: Federal tyranny. What Kind of tyranny have you seen in the federal courts in defending individuals and how would you change it? Thanks, Mike.
Mike Little: I’ve not witnessed any tyranny in the federal courts that I have been in. What I’ve witnessed in the federal courts are the harsh sentencing laws which I think are being taken a look at. Some of the sentencing laws are appropriate. But there is the fellow or lady who gets sometimes caught for the first time and they are involved in a large conspiracy and spending a great deal of time in federal prison. Those are pretty harsh and I think people, even judges are beginning to take a second look at that and becoming vocal about it. The comment that you made about the judge making the comment. I would never say something like that. Again independent, fair and impartial. I would never say anything to sway the verdict of a jury one way or the other.
Smart phones give continual feed — maybe?
David: I want to ask Mike about a possible reform. What would happen if we could have live streaming coming from a cell phone propped on a little tripod between the defendant’s table and the prosecutors table. Every case is streamed live into the cloud and anybody can watch a case live anywhere in the world that being especially in those Wild West corporation courts, session courts, and city courts where there is a lot of off-handed abuse, would that be a possible reform, Mike Little? And could it ever happen in Tennessee?
Mike Little: Well, it could happen. When I first started practicing law a camera couldn’t come into a courtroom. Still can’t go into a federal court. In the state we allow them to come in and we allow them to cover trials. They’re allowed to come in. It’s that simple.
Now as far as streaming everything that goes on inside a court, I don’t think that’s probably prudent because there are not always hearings taking place and so when there are no hearings taking place.
David: Why?
Mike Little: Maybe negotiations are going on. Those negotiations between attorneys have to be private.
David: But those talks are not held in open court, right?
Mike Little: Well, sometimes they are. When the courts are not on the bench. Sometimes they are. Sometimes the situations prevent themselves.
David: So live streaming, my listener can do now with a smart phone. He can stream live any event he wants to the cloud; now that’s not likely to happen yet in the courts in Tennessee.
Details about Mike Little campaign
Mike Little: No, I don’t think so.
David: *** Mike Little [is] a private defense attorney who practices in every jurisdiction that we can know of. I don’t think he has had any cases on another planet, but certainly here in Hamilton County and Chattanooga and local municipalities in the area — he has practiced defense law.
His opponent in every case is a government actor, state actor of some kind, hauling someone before the bar for an offense. We asked him about paper crimes, we asked him about victimless crimes, and in a nutshell your take is there really any such thing as a victimless crime, if it’s a crime, it’s a crime. There’s a party and that party has to be served by the court.
Mike Little: It’s against the peace and dignity of the state if it is indeed a crime and, um, yes.
David: Mike thank you so much for joining us. How can my listener find out about your campaign?
Mike Little: Votemikelittlejudge.com. It talks about my history. And they can send me a message if they want me to talk any further, I’ll be happy to answer any questions. I think this is a very important election. I’m on the Republican ballot and the March 1st primary. There is no Democratic opposition, so whoever wins this primary will be unopposed in August.
— 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 in Chattanooga, on your smartphone via the TuneIn radio app or at Hotnewstalkradio.com. Noisily patronize his advertisers. Encourage the free press by having David air your commercials. Also, “buy me a coffee at the tip jar.”
More about Mike Little and the traps in Tennessee and U.S. law
In 2012 Mr. Little gives an interview exploring the problems people encounter when they are cited to city court.
More recently, David Tulis explores the questions that are bugging him about the use and abuse of law in Chattanooga and Hamilton County. Some of them appear above.
The interview above is viewable here at Nooganomics.com.
