Confused about the outcome

July 16th, 2013

You’re not the only one to ask, that’s for sure.  The short answer is this:

  1. The prosecution had the burden to remove all reasonable doubt from the jury’s minds — both that Zimmerman had committed every element of the crimes charged, and that he had not acted in self-defense.
  2. This was a very difficult case for them to prove.  Their evidence was iffy and called for a lot of speculation.  Their arguments were easily shot down by the defense.  And the defense view of the case was fairly consistent with the evidence.  At the end of the day, there was plenty of room for doubt about a lot of important things.
  3. With all that doubt, the jurors found that the state had not met its burden, which meant that they had to say “not guilty.”

Different people are confused and upset about this for different reasons.

Some are confused about what the evidence was, how the law applied to it, and where all the reasonable doubt came from.  I can try to go over all that with illustrations later, if you like. (I don’t mind, it’d be fun.)

Others are confused because they think the jury’s job was to decide what really happened, rather than to decide whether the state had proved its case beyond a reasonable doubt.  The jury’s verdict doesn’t mean “George Zimmerman is innocent” or “George Zimmerman was justified to shoot in self-defense.”  All it means is “the prosecution did not prove every element of the crime beyond a reasonable doubt” and “the prosecution did not prove it wasn’t self-defense beyond a reasonable doubt.”

Also, in cases like this, a lot of people take sides without knowing (or even caring) what the actual evidence was, or how the law applies to it.

Instead, a lot of people take sides, for and against, because they want to further some sort of political agenda.  There is a narrative they want the case to tell, regardless of what the facts really were.  It’s all about their cause, not the case.  So of course they get upset when the jury’s verdict doesn’t fit their narrative.

And a lot of other people take sides because they get the sense that one or the other is the “right” side to be on.  Sort of a knee-jerk, follow-the-crowd sort of thing.  They may not really know what was going on, but they feel that they are on the side of good and justice.  So of course they get upset when the jury’s verdict isn’t what the crowd had led them to expect.

Yes, juries can and do come back with bizarre verdicts that make you wonder how many brain cells they had between them.  But this just isn’t one of those cases.  The jury’s verdict was not at all unsurprising, given what came out during the trial.  It would be very easy for people of ordinary judgment to believe that the government came nowhere near proving its case beyond a reasonable doubt.

Zimmerman may or may not have committed the crime with which he was charged.  But that jury had good reason to come back with a “not guilty” verdict after that trial.

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You wanna hear something shocking?  I don’t think the prosecutors really Read the rest of this entry »

Hello again

July 16th, 2013

Hello, again. That was quite the hiatus, there.

Long story short, I sort of got the feeling that folks wanted me to spend more time on the comic, which ate into the time I would have spent doing this.  And eventually took over.  Which is a shame, because here I don’t have to stick to my syllabus, but get to write about whatever’s going on.

But three people in three days have told me that this blog was in fact valuable for them.  And I did miss it.  So I guess I’ll have to make time for both.

The next post won’t take any time at all, though — I’m just going to cut-and-paste an answer I wrote to one of my Tumblr followers last night about the Zimmerman case. That’s cheating, I know.  But I promise more new content shortly.

On this latest Miranda thing…

April 22nd, 2013

So after catching one of the guys thought to have committed the Boston Marathon bombing (and a string of violent acts thereafter), the government said they weren’t going to read him his rights. Not just yet. Invoking the “public safety exception” to the Miranda rule, they said they wanted a chance to find out who he was working with, where other bombs might be, etc., before telling him he’s allowed to clam up.

Predictably, a lot of people were upset about this. But why?

Yes, it was wrong of the administration to say that. But not for the reasons everyone’s saying. Not because it’s further eroding our rights (it’s not), but because it’s just stupid.

It conflates intelligence with evidence — stupid. It misses the whole point of Miranda — stupid. It defeats the purpose of intel — stupid. And pisses off those who love the Constitution — stupid.

And of course, it’s nothing new.

About three years ago, the Obama administration made it DOJ policy to permit “unwarned interrogation” not only in situations involving immediate public safety (“where’s the bomb?”), but also cases where cops believe getting intel outweighs your right to remain silent.

The 2010 memorandum states:

There may be exceptional cases in which, although all relevant public safety questions have been asked, agents nonetheless conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat, and that the government’s interest in obtaining this intelligence outweighs the disadvantages of proceeding with unwarned interrogation. [4] In these instances, agents should seek SAC approval to proceed with unwarned interrogation after the public safety questioning is concluded. Whenever feasible, the SAC will consult with FBI-HQ (including OGC) and Department of Justice attorneys before granting approval. Presentment of an arrestee may not be delayed simply to continue the interrogation, unless the defendant has timely waived prompt presentment.

On top of that, the Obama administration wanted Congress to specifically pass legislation allowing longer interrogations before Miranda need be invoked. (A brilliant writer blogged about that memo a couple of years ago, concluding that it was “An Unnecessary Rule.”)

The administration is just trying to have its cake and eat it, too. Miranda does not prevent them from gathering intelligence. The Fifth Amendment does not prevent them from gathering intelligence. They can interrogate people all they want, in any way they want, and the Constitution doesn’t say jack about it. But if they force you to incriminate yourself against your own will, they’re just not allowed to use those statements against you to prove your guilt in a criminal proceeding. That doesn’t mean they can’t force you to incriminate yourself, and it doesn’t mean they can’t use those statements for other purposes.

But the government wants to be able to do both. It wants to be able to override your free will, force you to condemn yourself, and use your words both to prevent future attacks (laudable) and to convict you so the State can punish you (contemptible).

Their saying this out loud is idiotic, because everyone sees how contemptible it is, and the government looks even more like an enemy of the public, rather than its protector. And of course giving a heads-up to the real bad guys about what we’ll be doing. (And announcing it in a specific case, as they did this week, just lets everyone in the bomber’s organization know that we’re learning everything that guy could tell us. Stupid. You never want the enemy to know how much you know.)

But it’s also stupid because it misses the ENTIRE POINT of Miranda.

Sorry to break this to you, but Miranda isn’t about protecting your rights. It never was.

Miranda is about giving the police a free pass. It always has been.

The Fifth Amendment is there to make sure we don’t have another Star Chamber. We don’t want the government using its power to override your free will, and make you confess to a crime so it can punish you. Lots of confessions are purely voluntary. In fact, most probably are. But sometimes the government has to force it out of you, and we don’t want that to happen.

But it’s hard for courts to tell voluntary confessions from involuntary ones. They have to look at facts and assess things on a case-by-case basis. That’s hard. And it’s hard for police to know if they’re crossing the line, when the line is different for every individual. So the Miranda rule creates an easy line that applies to everyone:

Say the magic words, and the law presumes that the confession was voluntary.

See how easy that was? Not hard. Easy.

All a cop has to do is recite the Miranda litany as they’re taking a suspect into custody, and BAM! they get to interrogate all they want, and everything the guy says can be used in evidence at his trial.

It is hard to imagine a more pro-law-enforcement rule. In one stroke, Miranda dispensed with actual voluntariness, and replaced it with “as a matter of law” pretend voluntariness.

And yet law enforcement — even our nation’s top officials, who went to law school and everything — astoundingly persist in thinking Miranda is bad for them. They think that, if you mirandize someone, they’ll shut up, and you’ll lose all that delicious intel and lovely evidence. (NYPD officers are actually trained NOT to mirandize people on arrest, for this very reason. Yeah, TV ain’t real life.)

But here’s the kicker: People don’t clam up when they’ve been read their rights. The people who clam up remain silent regardless of whether they’ve been mirandized or not. In fact, there is evidence that people are MORE likely to talk once they’ve been read their rights. They don’t know what those rights mean, but they know they’ve got them, and TV has conditioned them to expect the magic words. So when they hear them, they relax. All is well. Their rights are being acknowledged. And they start blabbing.

So not only do the magic words let you use all those statements, compelled or not, but they actually get the statements flowing.

So wanting to hold off on saying them is just stupid. Counterproductive. Idiotic.

So there’s lots of reasons to dislike what the government is saying in this case. But eroding our rights just isn’t one of them.

You lost those rights in 1966.

Drawing the Line

March 29th, 2013

Everyone knows that drunk drivers cause deadly car accidents. This is because alcohol impairs one’s ability to drive safely. So it is against the law to drive under the influence of alcohol.

Everyone knows that texting while driving causes deadly car accidents. This is because texting distracts your attention from driving safely. So it is against the law to text while driving.

Everyone knows that speeding causes deadly car accidents. This is because going faster than conditions and one’s ability permit make you unsafe. So it is against the law to speed.

And now West Virginia is looking to outlaw driving while wearing Google Glass. Because presumably having the internet in your heads-up display would distract your attention from driving safely.

Of course, these laws are all trying to prevent people from driving unsafely. So why not, instead of a whole jumble of laws dealing with specific causes of unsafe driving (and having to be written to deal with new, unforeseen causes), why not have a single law punishing… you know… unsafe driving?

Because these particular causes of unsafe driving are worse than any other? If you say so. But even then, they could just be grounds for enhanced penalties for violating the basic law. No need for separate laws.

The actual reason is that “unsafe driving” is a very subjective concept. It’s really an “I know it when I see it” kind of thing, not readily reduced to formulas. Different people have different abilities, physiologies, training, etc., so one person could drive safely with distractions/speeds/alcohol intake that would make another person a deadly menace. If all you’ve got is a cop who can testify that “this person was driving unsafely because of X Y Z,” when it’s not necessarily so that X Y or Z equal “dangerous, then you’re not going to get a lot of convictions.

And so we draw a line. Forget individual variations — as a matter of law, if you do X, Y or Z while driving, you are automatically a menace, and that’s that. The police officer doesn’t have to make a judgment call about whether you were actually unsafe. All he has to do is determine whether you did X Y or Z.  It’s so much easier to prove that you had crossed the line, than to prove that you were actually being unsafe.

Of course, this is overbroad and unjust. Because where we draw the line is arbitrary. Someone driving 70 is no more dangerous than someone going the limit of 65, but that’s where we drew the line.

Where we draw the line depends. For speeding, it’s sort of a lowest-common-denominator kind of thing: We pick a speed that, for this road, most drivers should be able to manage safely. And by “most drivers” we mean “poor drivers.” Because as a society we’ve decided that we’d rather make it easier to get a license, and we’re willing to accept a certain number of traffic fatalities per year in exchange for letting more people drive. So sure, there are plenty of people who could manage it safely at a higher speed, but they’re going to have to obey the same line drawn for everyone else.

For alcohol, it’s more a lobbying kind of thing: Victims and families of victims of drunk driving are understandably upset that people are committing reckless homicides and being treated like it was just oopsie an accident. So they lobby lawmakers to make driving with any alcohol in your bloodstream a crime. And over the years, the amount of alcohol required gets smaller and smaller, because who wants to lobby for the alternative? Who wants to be the guy pushing to make the law go easier on those killers? And so the arbitrary line keeps ratcheting down because nothing is there to prevent it.

For things like texting, it’s more of a zero-tolerance thing: We can’t ever know which text or other distraction is the one you could do safely or the one that would cause a pileup on I-70. So we just outlaw all of them. (If we were intellectually honest, we’d simply outlaw driving while distracted, which is the actual problem. But that would fill the jails with moms who were yelling at kids, people driving while furious after an argument, girls putting on makeup on the way to work, truckers eating tacos, and the like. And we don’t want to do that, do we?)

It’s not just traffic laws — the law is filled with examples of “bright line” rules. All are arbitrary. Some try to strike a balance, some are purely political, and some are unthinking zero-tolerance rules. But the lines have been drawn. And that’s the important thing.

The important thing is that the line is drawn somewhere. Because it’s not about justice. And it’s not about safety.

It’s about not having to make subjective decisions.

And now you know.

Understanding the law

March 8th, 2013

A lot of the law is extremely formulaic. True, human intelligence is required to spot issues, devise strategies, and (most importantly) persuade decisionmakers. But in its actual application, the law is often little more than a series of IF-THEN decisions. A computer could be programmed to do it. This is just as true of corporate taxation as of advanced constitutional law. A law student could outline those courses with nothing more than a flowchart and do okay on the exam.

Knowing the formula is important. It’s specialized knowledge that you usually have to go to law school to get. But it’s only knowledge. It’s not understanding.

It’s like baking a cake. If you know the recipe, you can go step by step through the process and get a decent cake on the other side. If you don’t know the recipe, you’re likely to wind up with a big mess. But knowing a recipe that works isn’t the same as knowing why it works. It’s not going to help you if your ingredients suddenly change, or something new is added into the mix, or you have to use an oven with a very different temperature. In that case, if you want to make a cake, you’re going to have to understand the chemistry of what’s going on, the effect that the ingredients and how they are combined and the heat and the time have on the final result.

Knowledge is the what. Understanding is the why.

Most students can demonstrate their knowledge on an exam, and they’re lumped together in the curve. It’s the rare students who demonstrate their understanding who get the outlier As, however.

In fact, there are professors out there who will announce to the class that the final exam is going to cover things that never came up in class. Topics that were never discussed. Issues that aren’t in any of the books. The students will have to say, based on their understanding of why the law is the way it is, what the answer in that unfamiliar area ought to be.

These are awesome professors. If you ever get one, cherish the experience. Because you’ve lucked into someone who teaches the why, as well as the what. And you are going to be so much better equipped to deal with the law as it changes.

The law does change. Whatever field you practice in, the law is going to change during your career. If you know where the law is coming from, you’ll have a pretty good idea of where it’s going. And more importantly, whichever way it goes, you’ll get why. You’ll understand it better. You’ll be able to use it better, advise your clients better, persuade a court better.

So how does get this understanding?

What you’re looking for is policy. An underlying philosophy or purpose that explains the statutes and cases. What were the lawmakers and judges trying to do? What was the point of view that drove how they did it?

You’d think this would be easy — just look at the legislative record to see all the arguments for and against, the court opinions spelling out in excruciating detail precisely where they were coming from.

But if you try doing that, you’ll soon learn it’s not easy at all. The stated reasons for statutes, regulations and caselaw are inconsistent as hell. They’re all over the map. And what’s more, people are only human. The reasons we give for our actions are rarely the same as our true, unstated motives. We may not even be fully aware ourselves of the actual policies we’re acting on — most of the time because we haven’t reflected enough to actually know what they are, and so they remain unconscious, subliminal. And our brains are wonderfully adept at justifying after the fact.

So it’s a puzzle. The narrators are not telling you the truth. They’re not lying to you, but they’re not telling you the truth. The trick is to pick out the clues from what they say, from the situations they’re reacting to, from the problems they’re trying to solve, and from (most importantly) what they actually do. It takes a fair amount of insight into one’s fellow human beings to solve this puzzle.

And this is what sets apart the merely adequate law professor from the superstar. The adequate professor makes sure you understand what the various disparate laws happen to be. The superstar gives you an insight that explains them all (or most of them, anyway).

Which way would you prefer to learn them all?

Now, there are lots of ways to explain what’s going on. How do you know which theories are best?

As with any other field of study, the simplest theory that explains the most data is best.

So for example, you might have a ton of cases that seem to be all over the place, if you just take the judges at their word. They seem to be espousing a given principle, but their decisions keep pushing the law in a different direction. That tells you that the real reason isn’t the one they’re saying. Maybe it’s emotion. Maybe it’s a desire for a certain outcome no matter what. Maybe it’s just pandering to a perceived public opinion. Maybe it’s just a backroom deal.

And those surface reasons give you a clue to the unspoken philosophy behind them. In a criminal case where the court is performing some impressive legal gymnastics, it could simply be that the desire to punish this guy is more important than any protections the law might have given him. (That’s the opposite of the rule of law, by the way. A good example of saying one thing but doing another.)

You can also watch as repeated reliance on the spoken, but incorrect, principles leads to bizarre outcomes. The exclusionary rule is a good example, where the courts keep saying it’s about deterring the police from violating your rights, when in reality it does nothing of the sort. The rule is intended not to make the police think twice but instead to ensure that violations of your rights don’t get used against you. And you can see how repeated insistence on its deterrent purpose erodes the rule — because in situation after situation the court recognizes that there is no significant deterrent effect, and so says exclusion wouldn’t matter here.

This kind of thing goes on in almost every field of the law.

The trick to understanding is actually formulaic: 1) Look at the facts and the outcome; 2) Look at the stated justifications; 3) Note any disconnects; 4) Apply your own understanding of human nature, various philosophies, history, culture, etc., determine likely explanations for the disconnects; 5) Select the explanation that explains the most data with the least complexity.

Go on, try it!

Why Are You Here?

February 9th, 2013

The other day, the Charleston School of Law was kind enough to invite me to speak to its student body as part of its Professionalism lecture series. My theme was, of course, professionalism in the law. But in the context of why we practice law. If you’re interested, have a look:

 

 

P.S. – If you want to skip the dean’s kind introduction, just go to the 5-minute mark.

Statistical ranking of defense lawyers? Maybe, but not this way.

January 2nd, 2013

It’s an intriguing notion: that one can objectively assess the relative effectiveness of a given lawyer. With hard data, and sound analysis. In the real world, it’s nigh impossible to tell how good a lawyer really is. You can look on Avvo and see what people here and there may have subjectively thought about him, but that doesn’t tell you whether any other lawyer would have done as well (or been just as dissatisfying). You can ask around and get a sense of what other lawyers generally think of him, but that’s just as subjective. There’s really nothing out there to tell you for sure whether that lawyer gets better-than-average results or not.

So Wake Forest professors Ronald Wright and Ralph Peeples — to their great credit — tried to see if it could be done. In their recent paper, “Criminal Defense Lawyer Moneyball: A Demonstration Project,” they conclude that it can be done. They may even be right about that. But not from the data they gathered, sadly.

[Warning: The internet’s gonna Read the rest of this entry »

Deterrence has nothing to do with it.

December 20th, 2012

Interesting concurring opinion by Posner the other day in U.S. v. Craig. Basically, the defendant pled to four counts of creating child porn — which he created in an awful and horrifying way. He could have gotten 30 years for each count, but the judge gave him 50 (30 on one count, 20 on the other three). The defendant appealed the sentence. But it was within the Guidelines, and so was presumptively reasonable. And the judge didn’t ignore any mitigating factors. So the appeal was meritless and denied. A shocking sentence for a shocking crime, but hardly a shocking decision.

True to form, however, Posner went out of his way to make an economic evaluation of the sentence. What was it good for? Did tacking on the extra 20 years make any sense? Posner says no, and argues that judges need to take such things into account in the future when imposing sentences.

He engages in a straightforward cost-benefit analysis. The cost to society? $30K a year now, more than double that as the prisoner grows old and requires medical care. Plus the lost productivity of the man being incarcerated. The benefit? For that he looks to the purposes of punishment. But not all of them.

He only considers Read the rest of this entry »

Answering Your Most Burning Questions

December 14th, 2012

Google analytics is a great tool. Among other things, it shows the search engine queries people use to find this blog. Which is a good way of figuring out who its audience is, and what they need to know.

The queries aren’t as entertaining as they are over at Popehat, but then again neither is this blog.

Nor are they all that varied. In fact, just looking at the top 2000 searches so far this month, almost every single one is a variation on a few basic themes. These are the questions people apparently want answered right now. So I’ll address them briefly — very briefly — here.

1. Should I become a lawyer? / Do I have what it takes to be a lawyer?

To answer questions like these, you first have to understand what lawyers do. Once you know that, it should be Read the rest of this entry »

Finished!

September 11th, 2012

I’ve been taking a break from posting here while cranking out the last installments of my guide to criminal law. The last one went up today (it touches on terrorism, but the fact that it was posted on 9/11 was the purest coincidence).

And just in time, too. Because the book can now be pre-ordered from the publisher.

You read that right. YOU CAN BUY THE BOOK! Yeeha!

Awesome book cover

Well, what are you waiting for? Stop reading this and go make my publisher happy.

On Strict Liability, Regulatory Offenses, and Overcriminalization

August 13th, 2012

The latest Illustrated Guide post is finally up. It only took for-freaking-ever, what with work and family and something like twenty rewrites. It goes into some of the problems with strict liability, overcriminalization and regulatory crimes — which is the perfect way to sneak in a (simplified) history lesson  on criminal law, to show how the problems developed. It wraps up with some preachy solutions.

It’s the longest one yet, with 56 panels and over 100 drawings. The tl;dr version is “good people still get in trouble, but it’s fixable.”

The first half can be seen here.

The second half can be seen here.

. . . . .

Here are some random samples:

. . . . . -=-=-=-=- . . . . .

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. . . . . -=-=-=-=- . . . . .

See the rest here.

Next time, a real blog post. Promise.

 

 

A PhD in Law?

July 11th, 2012

Yale Law School has announced that it will now offer a PhD in Law — apparently the first time a doctoral program in law has been offered in the United States. One can only ask “what for?”

Ostensibly, the purpose of a PhD is to advance human knowledge. You get that degree for figuring out something new, and proving it to the satisfaction of people who know what they’re talking about. At the end of the day, humankind gets a little smarter, and you get to call yourself a doctor of philosophy.

Looked at that way, there’s not a whole lot of room for PhD studies in the law. The law is a manmade thing, not something out there to be discovered, and an unholy number of people make it their business to know all of its various ins and outs. In other words, there’s not much “new” to the law to figure out. The exception is for research into how the law is applied, and philosophical attempts to identify the underlying policies that explain why the law is the way it is. This is what legal scholars already do. They don’t need a PhD to do it. Lowly JD candidates do it when they write notes for their law reviews. Scholars do it when they write books and law review articles. Bloggers do it when they’re not bitching about the job market or SEO. Even amateur cartoons have been known to take a stab at it. There’s just not a lot for a PhD to work with here, and it’s already being done elsewhere.

Of course, that’s looking at it the wrong way. In the real world — particularly outside the hard sciences and mathematics — the PhD is just a prerequisite for a career in academia. If you want to be a professor, you’d better get that doctorate. It’s not about advancing human knowledge; it’s about training to be a “scholar,” however your academic field defines it.

Looked at that way, Yale’s decision makes slightly more sense. The Law PhD would just be one more way of proving your bona fides as a scholar, another way to compete for a job as a tenured law professor. There are far more people who’d like to be a law professor than there are available positions, so the competition is insane. The usual “publish or perish” rules apply here as much, if not more so, than anywhere else in academia, so getting enough articles into some law review or other is one requirement (which explains the proliferation of law reviews that few bother to read — the demand is not for the finished product but for the publication service). But that’s just a starting point. To further weed out candidates, law schools require advanced academic degrees. The J.D. is an entry-level vocational degree, nothing more. They want people with an LL.M in the area of law they teach. More and more, they want people with a PhD in (as the Yale announcement says) “economics, history, philosophy, or political science.” These are what the law is about, after all (and what you should be studying in undergrad — not pre-law — if you want to be best prepared for law school). But a Law PhD is probably not being offered just as another way to prove one’s sholarly ability.

The real reason is probably just supply and demand — and not demand from tenure candidates. The demand is from law school administrators, who want more and more ways to weed out those candidates. Because there are more and more people trying to break into law school academia. There are tons of people with LL.Ms and PhDs from other disciplines. But who has a PhD in law? Nobody. If it existed, it would be a great way to tell which candidates have learned how to be academics, which ones are already “one of us.” Yale is providing schools with a way to be more demanding of professorial candidates, and thus make the school’s job easier (while giving them something more to brag about.) Just as readers aren’t who law reviews are for, the PhD candidates aren’t really who this program is for. They’re not the customer, they’re part of the product.

So let’s make the ivory tower a little higher.  Of course, that will only exclude more people who have actually practiced law. But that’s what adjuncts are for.

On Overcriminalization: There’s nothing new under the sun

June 11th, 2012

As we’ve mentioned perhaps a dozen times by now, we do this illustrated guide to law in our rare moments of free time. (Latest post on self-defense law is here.) We make every effort to avoid citing case names or statutes in that guide, because they’re almost never necessary for an understanding of the actual concepts. We also try not to waste time on what the law used to be. It’s common for those who popularize specialized fields of knowledge to tell the story of how a given field has evolved, devoting the bulk of their writing to what people once thought, before getting to how things are right now — and we hate that. Cut to the chase, already!

But the next installment’s going to be about the sources of criminal law, and it would be sort of disingenuous to simply cut to the chase there (“elected officials pass statutes and ordinances, and agencies adopt regulations, now move along” — that’s not really the whole story, is it?). In this particular case, it seems necessary to at least summarize a history of how English and American criminal laws all came about. Because that history is still a big source of the criminal laws we deal with now — occasionally in weird ways.

It’s a fascinating history, and we’re barely going to touch on any of it in our comic. But the surprising thing is how rarely anyone has touched on it at all. The history of criminal procedures is extremely well-documented (and byzantine in its complexity); but if any of you are History majors looking for a topic for your senior thesis or a dissertation, we might just mention that the history of the laws defining crimes is far from exhausted, hint hint.

There are two or three halfway-intelligible histories out there, written during various centuries, and each author makes the same complaint that they’re writing in a vacuum. Each, however, refers heavily to Sir William Blackstone. So we were re-reading bits of his Of Public Wrongs this morning over our coffee (thank you Google Books!) when a thought started nagging in the back of our brain.

It was hard to pin down the idea, but then we had it: Overcriminalization. For a while now, people who pay attention to the law have complained that there are too many crimes, with irrationally high penalties, and that this leads not only to injustice but to the law itself losing its legitimacy. Lately, this idea has begun to gain traction among political types as well. People are starting to realize that, as we’ve written several times before, the problems come from a number of sources: vindictive laws being passed without much forethought in response to notorious one-off cases; progressive politicians outlawing more and more offensive behaviors; reactionary politicians ratcheting up the punishments for everything; and perhaps most insidious of all, unelected bureaucrats imposing criminal penalties on countless (and as yet uncounted) regulatory infractions. It’s so bad that nobody knows for sure what’s a crime and what isn’t, and especially in the federal system the penalties can far outweigh the severity of a given offense.

Why did reading Blackstone bring this to mind? Because apart from merely commenting on the state of the law in the mid-1700s, Blackstone was arguing for reform. He wanted a law that was more utilitarian, more deterrent than retaliatory, more enlightened — and above all, more simplified. He complained that the criminal law as it stood in his time was a tangle of writs and statutes, with new offenses being created all the time without anyone knowing about it. All the different sources of penal laws, and all the previously unknown offenses, were “a snare for the unwary.” The law had ratcheted up over the preceding centuries, so that the number of capital offenses was enormous, and severe punishments were prescribed for the pettiest offenses. All this led to judges refusing to impose the prescribed penalties, while at the same time leading to a growing contempt for criminal laws in general.

Yup, sure sounded familiar. Overcriminalization is something that just seems to … happen… in mature systems. In Blackstone’s time, it happened because of a rapidly-growing administrative role of government, because of officials trying to look tough on crime, because of vindictive one-off laws, because of not thinking things through, and because of simple intertia. Yup, totally familiar.

Still, whenever people start talking about overcriminalization, they don’t start throwing around old Blackstone quotes. Instead, they usually come out with an aphorism they ascribe to Tacitus: “The more numerous the laws, the more corrupt the government.” Which is unfortunate because (1) that phrasing implies a meaning that Tacitus did not intend; and (2) what the old boy really was saying was so much more apposite.

What was Tacitus saying in his Annals, Book III part 27? He’s talking about how the laws were getting out of hand in Ancient Rome:

Pulso Tarquinio adversum patrum factiones multa populus paravit tuendae libertatis et firmandae concordiae, creatique decemviri et accitis quae usquam egregia compositae duodecim tabulae, finis aequi iuris. nam secutae leges etsi aliquando in maleficos ex delicto, saepius tamen dissensione ordinum et apiscendi inlicitos honores aut pellendi claros viros aliaque ob prava per vim latae sunt. hinc Gracchi et Saturnini turbatores plebis nec minor largitor nomine senatus Drusus; corrupti spe aut inlusi per intercessionem socii. ac ne bello quidem Italico, mox civili omissum quin multa et diversa sciscerentur, donec L. Sulla dictator abolitis vel conversis prioribus, cum plura addidisset, otium eius rei haud in longum paravit, statim turbidis Lepidi rogationibus neque multo post tribunis reddita licentia quoquo vellent populum agitandi. iamque non modo in commune sed in singulos homines latae quaestiones, et corruptissima re publica plurimae leges.

Which my antique Church & Brodribb translation has as:

After Tarquin’s expulsion, the people, to check cabals among the Senators, devised many safeguards for freedom and for the establishment of unity. Decemvirs were appointed; everything specially admirable elsewhere was adopted, and the Twelve Tables drawn up, the last specimen of equitable legislation. For subsequent enactments, though occasionally directed against evildoers for some crime, were oftener carried by violence amid class dissensions, with a view to obtain honours not as yet conceded, or to banish distinguished citizens, or for other base ends. Hence the Gracchi and Saturnini, those popular agitators, and Drusus too, as flagrant a corrupter in the Senate’s name; hence, the bribing of our allies by alluring promises and the cheating them by tribunes vetoes. Even the Italian and then the Civil war did not pass without the enactment of many conflicting laws, till Lucius Sulla, the Dictator, by the repeal or alteration of past legislation and by many additions, gave us a brief lull in this process, to be instantly followed by the seditious proposals of Lepidus, and soon afterwards by the tribunes recovering their license to excite the people just as they chose. And now bills were passed, not only for national objects but for individual cases, and laws were most numerous when the commonwealth was most corrupt.

So he wasn’t saying “the more corrupt the government happens to be, the more laws there will be.” He was saying “there were ups and downs, but generally there was a strong correlation between how many criminal laws we had and how broken our government was at the time.” (The word “corrupt” having the older more general meaning of “debased, decayed, changed in bad ways” — the way we’d say “a corrupted hard drive” today — in addition to the more specific modern meaning of “venal, self-serving, bribe-taking etc.”)

And what Tacitus was saying in general was the same thing that Blackstone was saying: there were too many criminal laws, often conflicting, created not for the general need but in order to curry favor with the people, to react to one-off cases, etc. etc.

Yup, sure sounds familiar. Just like old Ecclesiastes said, “there’s nothing new under the sun.” (Or didn’t one of the Epicureans say that first? Or was it one of the older Vedas?)

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Blackstone actually gives us some hope. For his proposed reforms actually were taken to heart — in the new United States, of all places. As the new states were formed, and began creating their laws practically from scratch, they were ideally suited to put these new progressive ideas in place. There was no hidebound tradition to adhere to, no entrenched bureaucracy to upend. Blackstone called for a stripped-down, principled criminal law, and American legal thinkers tried to make it so. Crime was (for the first time in history, really,) identified as an offense against the State, and not the more personal kind of moral offense or private conflict. Lawmakers and judges began to try to explicitly think through different levels of intent and culpability — not as thoroughly as would be done in the mid-20th Century, but still in significant ways. Deterrence replaced retaliation as the driving force of enlightened thought on punishment. These were not frontier hicks making the laws, but educated progressive thinkers well aware that they were creating something new, and trying to get it right the first time.

We don’t have a new nation to start from scratch again, but at least there is precedent for reform. England came around, too — if a bit more gradually. (We probably don’t want another Sulla, though.)

It’s happened before, it could happen again. There’s nothing new under the sun!

 

 

 

100%

May 17th, 2012

The call came, as they always do, at the last minute. “I’ve been charged with a crime, and I have to be in court in two days, and my lawyer isn’t doing anything, and I’m scared.” The caller came in to meet with me in person, as they always do when they’re legitimately scared and not merely irritated or price-shopping.

Most of the time, after hearing them out, we tell such folks that it’s probably not wise to change horses in mid-stream. Much as we’d love to help them, it doesn’t sound like their present lawyer’s doing all that bad by them, and there’s not enough time for us to catch up. But once in a while, the emergency is legit, and it sounds like we might be able to help. The client signs the agreement, forks over the retainer, and we get to work. There isn’t a minute to lose.

(Before they go, however, we sometimes half-jokingly ask why they didn’t just call us first. The answers vary, but it always boils down to money. There’s nothing wrong with that — price is a legitimate concern. And our services aren’t exactly cheap. So it makes sense that we wouldn’t even be considered an option until other things suddenly became much more important. Unfortunately, people often don’t realize it until the last minute, or until it’s too late.)

There isn’t a minute to lose, and we’re going to spend the next couple of days trying to accomplish all the things that should have been done already — gathering evidence, analyzing data, speaking with prosecutors, etc. Usually, of course, the first call is to the original lawyer. Nobody likes to get those calls, but it’s usual enough in the criminal world — clients jump ship all the time for various reasons, it happens to all of us — and the lawyers are usually collegial and gracious about it.

But not this time.

This time, the lawyer was outraged. Couldn’t believe that this was happening. This wasn’t mere shock, as from a new lawyer experiencing it for the first time. It was anger and betrayal. We began to wonder if perhaps we’d mis-read the facts, and maybe this lawyer had invested a lot into this case.

That thought didn’t last long. “Can you shoot me a copy of your files?” What files? The lawyer only had the accusatory instruments. “What’s the prosecutor’s take on the case?” Who knows? The lawyer hadn’t called to ask. A few questions more, and it became obvious that zero work had been done on the case, and the client’s fears were fully justified.

Our silence must have been eloquent. The lawyer started protesting that the client couldn’t expect ass-busting in a case like this.

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Ah. Yes. Of course. No client could expect their lawyer to be busting their ass on a routine little case.

Except that’s absolutely wrong. Clients can — and should — expect their lawyers to be out there busting there asses on every single case.

It doesn’t matter whether the client’s looking at a murder rap or a farcical summons. The lawyer’s job is to give 100% to defend that client. The client paying next to nothing gets the same level of care as the one who’s carrying your practice for the year.

That means putting in time, of course. And if one has a high-volume-lowest-fee business model, there probably isn’t any extra time for that. There’s barely enough time to just show up on the assigned court date and take whatever plea gets offered. Any more work than that would mean one has no time for taking on all the other cases required to pay the bills. So too bad, so sad, but that time is not going to be invested.

And so here’s another client who’d hired a lawyer, thinking the lawyer would protect them and defend them the way lawyers are supposed to. And instead got a lawyer who saw the client as just another routine widget to be processed through the machine. A lawyer who isn’t there to protect and defend, but to grease the wheels of the machine that destroys reputations and lives. And now the client is starting to realize that, and the client is beginning to panic. For damn good reason.

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The lawyer didn’t end the call graciously. But it ended. And then we got to work.

Over the next couple of days we got the alleged victims’ stories from the prosecutor, fleshed out the prosecutor’s assessment of the case, located and interviewed three eyewitnesses, and helped the prosecutor dramatically reassess the case in the client’s favor. From a heinous incarceration case to essentially “go forth and sin no more.”

This is not self-congratulation. It didn’t happen because of any particular skill or ability we have. It took no brilliance whatsoever. This is precisely what would have happened anyway, had the first lawyer done his job right. Any lawyer who had bothered to take the time would probably have gotten the same result. It really was a no-brainer at the end.

No, this is not self-congratulation — this is a complaint. A complaint about lawyers who don’t feel like a particular case deserves 100%. Every case gets it. Every client deserves it. If you don’t have the time, too bad — that is not your client’s problem. Every client gets 100%. Period.

And if you don’t agree, then what the heck are you doing here?

More Reason to Increase Legal Profession’s Barriers to Entry

April 19th, 2012

When people complain that “there are too many lawyers,” what they really mean is that there are too many bad ones. There is always demand for good lawyers to deal with the intricacies of modern life. If anything, people need more good lawyers than ever before — smart, wise, honorable people to help navigate the increasingly byzantine regulations, to make sure the complex business deals actually work, to represent all the non-lawyers who keep suing each other in our litigious society. And of course to prosecute and defend those accused of crime.

The problem is that it’s way too easy to become a lawyer. If you’re not picky about where you go to school, you can get a J.D. despite having little aptitude for it. And the bar exam is a very low bar, believe it or not — you only need the equivalent of a “D” and once you get that “D” you never need to take it again. There are a lot of misguided people out there who go to law school for the wrong reasons, and graduate to keep filling the ranks of the “too many lawyers.”

So it made us uneasy to learn that people with high LSAT scores are significantly less likely to even apply to law school these days, while those with lower scores are still applying almost as much as before.

It’s not surprising, of course — obviously, smarter people are going to be more likely to realize that it’s harder to get a job as a lawyer these days, and decide to go elsewhere. But the upshot is that the proportion of “good” lawyers is only going to shrink, and the “too many” will become even more numerous.

The solution is to make the profession more picky about who can and cannot become a lawyer. The problem is how to do it.

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Back in the bad old days, of course, the problem was that the profession was more picky. Just in a bad way. Minorities were not welcome, women were not welcome. Hell, folks who needed to work for a living were not welcome — we didn’t want their kind, or their night schools. (Many of the ABA’s more bizarre accreditation requirements are holdovers from these bad old days.) So there are some historical negative connotations to making it harder to be a lawyer.

Nowadays, though, people who get upset at barriers to entry don’t really cry racism, sexism or classism any more. Instead, they cry protectionism — that those who have the jobs want to protect them from competition. Or they cry up the free market — let anyone try it who wants to, and let market forces shake out the chaff.

The protectionist argument is one of the stupidest arguments, ever. Increasing the number of sucky candidates isn’t going to have much of an effect on the hiring of qualified people. Seriously, nobody is afraid that sucky JDs are going to come along and take their jobs. Letting more of them in will only cause more competition for low-tier jobs, making the complainers’ problem worse. This argument tends to be made by dissatisfied law grads who find themselves unable to compete in the modern market, and making it kinda demonstrates why.

The free-market argument isn’t so much stupid as unwise. Those who make it tend to see the law as a business rather than a profession — they fail to realize that we have clients, not customers. Clients don’t just drop in, pay for a service, then leave; clients entrust lawyers to handle important life matters. Lawyers don’t sell commodities; they put aside their own interests to serve their clients, and the client’s interest comes first. We are fiduciaries, advisers, confidantes, and we are trusted to make decisions on our clients’ behalf.

This is not a relationship that free-market forces can regulate. Clients of bad lawyers suffer, but there is not much the market can do about it. In a free market, it’s nigh impossible for clients to tell a good lawyer from a bad one — asking around is only as useful as the people one knows to ask. Bad lawyers sometimes thrive, simply because their name is known. The way real people find lawyers in real life is essentially random. A free market also needs quick reaction to bad service, but bad lawyering may not have consequences until years too late to make a difference to the lawyer’s reputation. And clients who are unsophisticated enough to hire a bad lawyer in the first place aren’t as likely to realize that they got shafted. The free market just cannot work to price out bad lawyering very efficiently, if at all — and in the meantime what about the clients who suffered? It’s not like they can return their counsel like damaged goods — they’re stuck with the consequences. Relying on the market to price out the bad and reinforce the good is a recipe for injustice, and would make things even worse.

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The solution is to be, not protectionist, but Read the rest of this entry »