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Ennui & Injustice

Posted by Rick · December 2nd, 2005 · 2 Comments

It’s difficult for me to understand certain things.

Why — really — are we so apathetic about what’s happening around us? I was talking to a local attorney this morning about a case. Without going into specifics — even though I wouldn’t be discussing anything that wasn’t already public record — I wrote a motion that was filed and argued regarding a question where the law clearly supports what I said. I found a case that said essentially the same thing (even using most of the same words) that I had used. Yet the motion was denied, because — everyone knows this is the reason, even if only defense attorneys would say so — if it had been granted, the prosecution’s job would be a little bit harder. Ultimately, when they get in front of a jury and install their gang cop on the stand to regale the jury with stories of the horrors of gangs, they’re going to get a conviction anyway. Even if the guy on trial did not do the crime. After all, that’s the point of having a gang cop on the stand. It keeps them from having to put on evidence of the crime, eliminates the burden of proof and causes the jury to convict anyway because the gang stories are usually told so dramatically.

But I digress.

I asked the attorney about advancing our case to the next level. “If they deny our writ in the Fifth District Court,” which he thinks is about to happen, “let’s push it to the California Supreme Court.”

And then the fun starts. “Who’s going to pay for that? The client can’t afford it. The court controls the money and they’re probably not going to approve the funds for that.” (In “indigent” cases, the court controls how much money the defense spends, when you get it and what it can be used for. No conflict of interest or constitutional due process issues there!)

Before going further, let me say that I don’t begrudge the defense attorney for his decision on this. No one — not even me (for very long) — can work for free. It’s a sad fact that we all have families to feed, clothes to buy, cars to fuel and we must make money. You’d be surprised how much work defense attorneys already do for free. Really.

But it’s a travesty.

What’s happening is that local courts are giving incorrect rulings. Most times this probably happens because they just don’t know the law. Seriously. Do you think that we who work in the legal system are walking encyclopedias? Television lawyers might always be able to cite five or ten cases in support of their thinking — and everyone in the room pops back and says, “Well, yes, but that was because of [fill in the blank with detailed historical analysis here] — but the truth is that most attorneys and judges have to do some legal research on each case. Attorneys, judges, law clerks (like me) — we don’t know the full law on everything at all times. If it were that easy, maybe computers could do the job. So most of the time, when an attorney “makes an argument” in a courtroom, his or her job is not just a matter of convincing someone of something; it’s educating them about what the law says on a certain issue.

That’s one reason the United States has an “adversarial” system of justice. We believe that if each side has to “duke it out” in the courts, the truth will emerge. One side will research the law they think supports them and will make their arguments. The other side will research the law they think supports them and will make their arguments. The judge — who is increasingly just a second prosecutor (but with a black robe instead of a white one, and missing the hood) — is supposed to referee. And that should require further research on his part, or on the part of his own law clerk. (You’d be surprised how much of the work is really done by law clerks, typically students like me.)

As I noted, though, the guy in the black robe is increasingly just another prosecutor. That’s not really a surprise; after all, most judges were prosecutors before becoming judges. It’s fairly rare for a defense attorney to become a judge. For one thing, some judges are elected. And if you recall, most will have gained their name recognition because they were “tough on crime.” Appointed judges aren’t much better, because what governor wants to go on the record for appointing “liberal” judges?

And make no mistake: These days, defending people accused of committing crimes is for liberals. Heck, most people don’t even think we defend “people accused of crimes.” Instead, we defend “criminals.” Innocent until proven guilty? Hehehehe! That just means the guilty criminal hasn’t had his trial yet! It doesn’t mean he’s actually innocent! Are you nuts?! (Seriously. How many of you think innocent people get arrested and charged with crimes? Raise your hands — better yet, use the comment system on this blog to submit your comments.)

So what we have is a system that is basically stacked against the accused person.

And when the judges and prosecutors refuse to follow the law because, after all, they know the guy is guilty and they’re not going to let him go free on some technicality like the inability to prove it, we all suffer. There is no justice system at that point. It’s just a question of “who do the prosecutors and the judges think belong in jail?” That’s not the rule of law; that’s the rule of man.

But the choice isn’t really between right-wing or left-wing. You don’t have to be a flaming liberal. (It will surprise virtually everyone except the local left-wing liberals to realize that I’m not really very left-wingish.) Those of us closer to the middle need to think about and understand the implications of the kind of judicial system we allow to be built. We need to understand the implications for our society. And we need to make our voices — our logical voices — heard.

I cringe when I see the law ignored, or flouted. I recently watched a judge have a conversation with a prosecutor in open court where they tried to figure out how to get around the law. Their problem? If they followed the law, the judge would have to acquit the defendant on two of three charges. After closing arguments, the judge explained his problem to the prosecutor and the two of them had a long conversation during which both of them were looking at the Penal Code, trying to figure out how to avoid the acquittal.

Finally, the judge required both the prosecutor and the defense attorney to submit “Points & Authorities” on the issue by the following week. This was after the closing arguments had already been given!

Ultimately, the next week, the judge was forced to admit there was no way around the law. He explained in detail why he had to acquit the accused person. Clearly he did not like this.

But no worries, folks. The “criminal” did not go free. The third charge was for making too much noise while supposedly committing the crimes for which he had just been acquitted. Normally you get a ticket for making too much noise. But this was charged as a misdemeanor. With a gang enhancement. The last time I watched that trial (it’s not one of the cases I’m doing), the judge and the prosecutor were trying to figure out if they could change it to a felony for sentencing purposes, because of the gang enhancement. If they do that, the Penal Code will allow them to give the kid (yes, kid) a three-year prison term. For, supposedly, making too much noise “for the benefit of, at the direction of, or in association with a criminal street gang.” Cal. Pen. Code § 186.22(b)(1).

Now maybe you think this is all fine and dandy. “Whatever it takes” to get the gang members off the streets. But judges are supposed to be judges, not prosecutors. Even if they were prosecutors before becoming judges. They aren’t supposed to collude from the bench with their former brethren to figure out how to find ways around the law and send people to prison.

When we sit back and do nothing about this, because there’s no one to pay for the work of researching and writing the legal documents to change things, we build an injustice system.

And sooner or later, that hurts us all.

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2 responses so far ↓

  • 1 John // Dec 10, 2005 at 1:08 pm

    Presumed innocent until proven guilty is a farce. Everyone knows just being in court or charged creates in the minds of most every juror a presumption of some sort of guilt. Whether it is of association or actual. Our CJ system may make high minded statements of this and that, but the fact is…. now what the defense must do is put on a very compelling case to win. To that I say good luck. Everyone hates crime, and criminals by implication. Additionally, most would not prefer to elevate form over substance. If in court, something is wrong with this person. That mind set starts the show. If defense attorney wants to start the game a field goal, or as much as three touchdowns behind, could be a difficult win. So Solly, that’s just life. It sure as hell doesn’t really take into consideration fairness for the most part. Its all just lip service. Now quit acting surprised. JD

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