It's technical

>> Thursday, September 25, 2008

It absolutely gets on my nerves whenever someone says or writes something about criminals getting off on "technicalities." Bugs the hell out of me. It doesn't even have anything to do with my job, which frequently involves noticing these so-called "technicalities" and getting criminals off on them. I hated it when people repeated that kind of mindless jackassery before law school and before the Bar Exam and before I practiced law. I've hated it so long, I can't even remember when I started hating it. It's just about the stupidest thing anybody can say about law or lawyers or the legal system, and anybody who says or writes something like that can almost certainly be ignored because that kind of statement reveals a profundity of ignorance that is staggering in its depths.

See, there's a special term for "technicalities." They're called "laws."

We have these things called "laws," see, and we're proud enough of the fact that much of the time we boast about the "Rule Of Law" and being a "Nation Of Laws" and so on and so forth. Up until the point until someone we don't like very much gets the benefit of those same laws that apply to everybody, and then some people--the proper term for these people is "idiots"--some people, these idiots, start bitching and moaning about technicalities. It's a bit like that horrid Kipling poem (yes, I know, that's redundant) about the soldier and how he's (or "'e's," as Kipling writes it, the letter "H" not having been invented until after 1936, apparently) a hero once a war starts. The police illegally break into somebody's home and steal his child pornography stash, and some people will be appalled at the "technicalities" that result in the case getting thrown out of court, but nearly all of those same people will brag about how smart their lawyer is when he gets their speeding ticket tossed because he noticed the cop signed the wrong box. Kipling had a word for people like that: 'ypocrites.

The best ones, and the most typical ones, are when the "technicalities" in question are Constitutional amendments, generally the ones known as "The Bill Of Rights" that a number of the nation's founders insisted be in the Constitution somewhere or they weren't signing it. A man is denied his right to counsel and an appellate court overturns his conviction--on a technicality, the idiots and ignoramuses say. A woman is illegally searched without probable cause or a warrant, and the trial court orders that the prosecutor can't show the jury the illegally-seized evidence and the prosecutor dismisses the case--another technicality. (Incidentally: prosecutors love to blame the judges for throwing out the case and that's how the media usually reports it, but there's usually nothing in an order to suppress evidence that keeps the State from proceeding with whatever admissible evidence they might still have--e.g. eyewitnesses or legally-obtained physical evidence.) Because, you know, the Sixth Amendment and the Fourth Amendment are mere details, nobody actually reads that stuff in the back, right? As if most people who claim they know their rights usually mean their right not to pay duties when shipping across state lines or their right to make recess appointments when they become president. Some guy on the street says "I know my rights," obviously he means his right to inherit his parents' property if they commit treason. What else could he be talking about?

That's where it usually comes up, but there are the little things, too. The statute granting a court jurisdiction that says a document must be signed in a particular way, rules of notice and sufficiency of pleading and whatnot. One can sort of imagine how these small things can seem picayune to someone who hasn't thought about them at all and is perhaps a bit lazy about it if they do. The question one might ask oneself--the question one usually should ask oneself--is, "What is the point of having some of these laws if there's no remedy when they're broken?" This is how we arrive at a common law tradition, you see, where the appellate courts say evidence or charges or whatever have to be thrown out over some seemingly minor violation: if forms aren't going to be followed, deadlines held to, etc., then why even bother with them? Have you ever hefted a statute book? They're not light. Imagine how much shorter they could be if the law was, "The State can do what it wants whenever it wants."

Our lawmakers spend an awful lot of time, believe it or not, trying to come up with a procedure that seems mostly fair. How often they succeed might be subject to debate, but the point of all these rules isn't merely to have a bunch of rules. (Believe me, most lawyers I know would be pretty happy if the list of rules was reduced to, say, three good ones; in fact, the only people who would be unhappy would probably be the people who sell malpractice insurance.)

For instance, our Constitution has this technicality buried in the Fifth Amendment: "...nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb...." This is the "Double Jeopardy" provision that is so regularly mangled by movies and TV shows that it's a wonder any non-lawyers understand what it means at all.

Now, take a look at that clause again: "...nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb...." How extraordinarily complicated is that? If you said it isn't, then you need to re-read it. That simple clause is insanely complicated. What does it mean when you say "the same offense"? (If someone is acquitted of trying to take a purse at gunpoint, can he be re-tried for simply taking the purse? Or for possessing a stolen purse?) What does it mean to be "in jeopardy"? (If a woman is charged, and then the State dismisses the charge, is that "jeopardy"? Does it matter whether they dismiss the charge before a jury has heard evidence, or if they wait until the jury has begun deliberations but before they announce a decision?) Does it matter who puts the person in jeopardy? (If you're accused of an act that violates state and federal law, can you be tried by both or just one?)

The people who wrote the clause were clearly quite satisfied with themselves: they, at least, thought they knew what they meant by it. And on first read, it does sound rather clear. It's only when you put it in practice that you realize what a huge cock-up it can make of everything. This is why most of the people who make movies and television shows screw it up, in fact, because they can't be bothered to look and see if anyone has maybe tried to parse the language and give it effect at any point in the last two-hundred and eighteen years.

On the one side, you have appellate courts saying, "Well this is what we think it means..." whenever somebody says their Double Jeopardy rights were violated, and on the other side you have the legislatures saying, "Well, okay, here's how we'll make it easy for people to tell whether Jeopardy is an issue...," and that's how all these technicalities, these so-called "laws" come about. When you think in terms of Double Jeopardy, say, suddenly things like when a charge is filed and where it's filed and how far along it gets all become potentially vital--and how do you tell when it was filed and where and how far along it got? So you need rules that define that process and how that process becomes an official record. And that's all just for one clause in one Constitutional provision--the Fifth Amendment contains at least four clauses, several of which contain assorted subclauses (e.g. the Fifth Amendment says you can't be charged for a "capital or otherwise infamous" crime without a Grand Jury presentment, but then there's an exempting subclause regarding military law). And there are eight of those Constitutional amendments, five of which deal directly with the legal system (four primarily criminal, one primarily civil), and just to make things fine and simple, there are all sorts of potentials for conflict between the various rights. (Quick: lurid and inarguably prejudicial news coverage of a criminal case--protected by the First Amendment right of the press not to be abridged or violation of the accused's Sixth Amendment right to a trial by an impartial jury of the state and district wherein the crime was committed?)

It could be simpler. Absolutely and for sure. We could have a system where all evidence seized by police is always admissible under all circumstances, or where the State can retry a bad person as many times as it takes to incarcerate them (or hell, where the State could retry someone before they're about to be released from prison, just to keep them in jail indefinitely on the same offense), or a system where issuance of criminal process is an adjudication of guilt (cop writes you a ticket, you've been convicted; obviously it would save more time if he could just shoot you in the face right then and there, considerably abbreviating the sentencing and punishment phases). These alternate systems are much less technical, but they've also proven rather unpopular in what we like to call "the Free World" (as in, "the leader of the Free World can't just go around shooting people in the face, except for the Vice-President's lawyer").

But we don't have a system like that. We have a system that strives to be fair and to balance the vast, hulking power of the State against poor little schlubs like you and me. Which means process, and procedure, and forms and rules--and for those things to matter, there have to be consequences when they're not followed, otherwise they're just shams and fictions. "The State has to hold a first appearance within a certain number of days, and if they don't they can just hold it later"--what kind of rule would that be? That's the same as not having a rule at all, except it offers the illusion of the Rule Of Law and all that. "A warrant must be signed by a magistrate or judge, and if it isn't, oh well"--what is that? That's nothing. That's a joke. So we--our judges and lawmakers--come up with ways to give our system teeth, and sometimes the result seems unfortunate: the remedy, of course, is to do it right the first time. If you happen to be a cop, and you know the evidence you collect will be inadmissible without certain procedures, then you follow the freaking procedures--it's not rocket science.

Meanwhile, idiots will continue to talk about "technicalities," because "laws" are for idiots and "technicalities" are for the people the idiots don't hold truck with, and I will gnash my teeth. I beg you--don't be an idiot. They're laws. People died so you could have them, you know--even the ones you don't think you'll ever need or use. Show a little respect.


Jim Wright Thursday, September 25, 2008 at 12:38:00 AM EDT  

Hmmmm, makes me wonder what prompted this post.

This, of course, is always my pet peeve - it pisses me off when people bitch about somebody getting off on a technicality like, say, the cops searched the car without VALID probable cause and found a stash in the trunk. Invariably, it's always the liberal Judge, and never the cops who didn't do their job in the proper manner, despite extensive training and a thorough knowledge of procedure (note: I do not think all cops ignore procedure, or even a majority). This is also why I have major problem with what's happening in Gitmo.

On the other hand, well, have enough money and you can always find a technicality to slip through. OJ, and I'll just shut the fuck up now ;)

Jeri Thursday, September 25, 2008 at 1:47:00 AM EDT  

I thought "it's technical" was when I had to explain one of my das blinkenlights projects to un-interested non-IT geeks?

I, too, would be interested in the rest of the story, although I realize given the nature of your profession it's something we can never know.

Is it my imaginination or is civil law less prone to the technicality accusation?

Nathan Thursday, September 25, 2008 at 7:18:00 AM EDT  

Fine, I'll buy your peeve if you buy mine. (Actually, I buy yours without precondition, but play along.)

I've been in jury pools 3 or 4 times now. I've always been excused. I don't like how juries are chosen because the system is currently designed to choose the most ignorant, incurious, lazy schmucks available.

First let's dispense with this "jury of one's peers" nonsense. Show me those words in the Constitution. They aren't there. The Constitution calls for an impartial jury. Note: In 1789, "peers" would have implied similar social strata and that was not the ideal they were going for. In practice, jury duty was tied to suffrage, and only landed white males had the franchise at the time. We haven't always lived up to our ideals.

So back to how juries are chosen. In 1789, even big cities were small towns by our current standards. If you asked any potential jury member if they were familiar with the defendant, the answer would likely be, "Yeah, he's the guy who's always talking to cats on LongWharf". That wouldn't have eliminated that person then, but it will now. That's just stupid. If the framers wanted to make sure jury members had no knowledge of a defendant, they would have said that all trials should be held in a different jurisdiction.

Under the current rules, if I've heard the person's name; if I've read a story in the paper; if I've discussed the case in passing with a friend; I'm likely to be dismissed. The only way to be on the jury is if I don't follow current events, don't discuss anything but macrame with my friends, and don't watch anything on TV other than reruns of "Joanie loves Chachi". The only real criteria should be whether or not I'm believable when I claim I can be "impartial".


Janiece Murphy Thursday, September 25, 2008 at 9:12:00 AM EDT  

Eric, I think I love you.

In a completely platonic, "my, what a large brain you have" sort of way.

Whenever I (or any other idiots I may know) start feeling self-righteous about an outcome, I will direct them here.

But having said that, I will also say that Jim has a very valid point about the relationship between money and so-called "technicalities."*

*This comment is in no way a judgment on your own efficacy. But there's only one of you.

Eric Thursday, September 25, 2008 at 10:40:00 AM EDT  

This wasn't actually prompted by anything professional. A friend had directed me to the work of an ostensibly intelligent and well-educated writer, who I completely gave up on after reading his comments on the law.

(This was actually the straw that broke the camel's back: I successfully navigated past some stupid things about religion and a comment about Democrats and Republicans that was so off-base it had me mentally defending the Republican Party. I'll try not to hold it against the friend who made the endorsement, however. :-) )

Re: money and the legal system: possibly this should be another post, but I'll try to make a few brief points. First, the advantage rich defendants really have is that their attorneys have relatively light caseloads and they can afford to hire investigators and experts that appointed counsel generally can't get a court to pay for. See--and here's the scary part from a citizen's POV--the "technicalities" are really pretty common: the problems with forensic evidence, the training and ability of the average detective, the problems with eyewitness testimony--they're common issues whether you're talking about a poor junkie breaking into a car or a rich jackass breaking into a Vegas hotel room and waving a gun around demanding his stuff back. The rich guy can hire, say, a retired-FBI-agent-turned-consultant to explain that there's no standard accepted by U.S. law enforcement agencies for points of identity on a fingerprint and that the only civilian agency with a "standard," the FBI only looks for, like, seven (IIRC) matching points while European agencies require 20+ or 30+ matching points, and there's a lot of subjectivity, etc.; I, on the other hand, would have to convince a judge to give me an allowance to hire whoever I could afford, meaning I'd pretty much have to convince the judge that a kind of evidence that's been perceived as "bulletproof" for more than a century is really, basically, pretty much a lot of crap.

Wish me luck with that. No, actually, on second thought, don't waste it--I'm sure I need it for something I have a shot in hell at.

Specifically with regard to what now must be officially referred to as "the first O.J. trial" (like the "First World War" or "Gulf I," we now have an unwanted sequel): people don't seem to realize what a shitty job the prosecution did on that case. O.J. didn't win the murder case on technicalities and he probably didn't need to win on race (tho' there is evidence that was a factor): the LAPD and LA DA's office handled that case like they would have with any overworked and underfunded public defender, and the nation got to see what the outcome of that is supposed to look like (and didn't like it and drew the wrong conclusion).

This could be a blog entry, and one that would probably require some research to be accurate, since it's been more than ten years, but I'll say this much more: I was in law school during O.J. Episode I, and of course it came up every now and then--every time the prosecutors offered an example of how not to win a case. Had Simpson been convicted, I think the sentiment (at least at UNC Law) would have been quiet amazement that the prosecution team had pulled it out of their collective asses. (Giving the glove to O.J. to try on? Not to take anything away from Johnny Cochrane, but Darden practically wrote Cochrane's closing for him. I mean fucking hell, a bunch of 1Ls knew how boneheaded that was.)

Re: juries: in North Carolina on a non-capital case, each side gets six peremptory challenges, and any juror may be challenged for cause. (How does this work in New York? It's probably similar.) Peremptories are for kicking off any juror you just don't like, except you can't kick a juror off for race or gender (good luck proving it when it happens, though). You'll get no argument from me in favor of the jury selection system we have, aside from a weak, "I can't think of any alternative that isn't as bad or worse." Cynically speaking, it's a system in which prosecutors and defense attorneys try to game the jury box to get twelve people they basically think are suckers.

The notion of a "jury of one's peers" is a common-law tradition going back to our English origins (it's borrowed from the Magna Charta). In an egalitarian society, the term is a little meaningless--technically every citizen is your peer, regardless of wealth or class or race or gender. Unfortunately, "impartiality," is a poor touchstone, since nobody really is. Again, I'm not really arguing here, because I don't really think the system works all that well. I just don't have a viable replacement in mind, and it beats the hell out of the hot lead treatment from the medieval ecclesiastical courts, or hiring a couple of knights to beat the crap out of each other. (Settle down! It wouldn't be as awesome as it sounds, and you know it!)

If it's any meager consolation, Nathan, clearly you impressed at least one of the attorneys, if not both, that you were intelligent, perceptive, attentive, moderate and open-minded. If it's any further consolation, I doubt anyone would leave me on a criminal jury. ("You mean, you're asking me can I be fair and impartial when your witnesses all start lying their asses off on the witness stand? Sure. Why not?")

Nathan Thursday, September 25, 2008 at 11:11:00 AM EDT  


In fairness, one of the juries I didn't get onto was for a civil case. A guy had tried to carjack someone and then when the motorist punched the gas to escape, he ended up running over the carjacker...permanently paralyzing him below the waist. The carjacker was suing the carjackee. I had seen a news story about the case the night before ("Jury selection begins tomorrow in the case of..."), so I was freshly familiar with the details.

So, anyway, the two lawyers are doing their normal rounds of "If I were to tell you that this case involves X,Y and Z, could you remain impartial?", and the case started to sound really familiar. When they got to me, I didn't want to poison the rest of the room so I asked if I could speak to the lawyers in private. The three of us left the room and I said to the one representing the paralyzed carjacker, "If this is the _________ case, I'm convinced your client is a moron and got what he deserved."

I don't really blame him for excusing me.

Eric Thursday, September 25, 2008 at 11:32:00 AM EDT  

Nathan, it seems grossly unfair to me that the only ways to communicate just how funny and awesome your story is are either by cliche:

"Glad I wasn't drinking anything!"

or abbreviation:


But take your pick. That's funny as hell. (And I agree with you about the plaintiff.)

Jim Wright Thursday, September 25, 2008 at 12:17:00 PM EDT  

Goddamn, Nathan, that's hysterical. Absolutely fucking hysterical.

Jeri Thursday, September 25, 2008 at 6:25:00 PM EDT  

Eric, is that an actual picture of you with your profile? (Sort of?)

Eric Thursday, September 25, 2008 at 7:09:00 PM EDT  

The picture currently with my profile is indeed my first self-portrait. Sort of. :-)

Anonymous,  Thursday, September 25, 2008 at 11:01:00 PM EDT  

This rant was so well written it makes my nipples hard! Thank you Eric. Thank you!

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