I am privileged that my blog was visited last night by James Whisman, the prosecutor from Kings County, Washington, who was mentioned in my article, “Satire, Reality & a Return to the Dark Ages” back in November 2004.

First, let me thank Mr. Whisman for visiting my site. I appreciate it. And, second, let me thank him for taking the further step of leaving a comment. He could have just decided “it’s not worth it” and moved on. I appreciate that he didn’t.

The reason I appreciate it is that he gives me an opportunity to, perhaps, dig a little deeper into the issue. I apologize in advance if it appears that I’m being argumentative — as I said, I really do appreciate his thought-provoking comment.

That said, I believe he missed the main point of my blog entry. While my earlier article explained why I “usually” write about ideas instead of events, I also stated quite clearly:

The problem with this approach is that ideas and ideals do not exist within vacuums. On the one hand, they produce and find their lives in events. On the other, those events condition the development of other ideas and ideals, whether in furtherance of, reaction against, or via intellectual, social and cultural evolution. You cannot talk about ideas and ideals without discussing real events.

But to discuss real events, you must somehow be able to determine that they are, indeed, real. Unlike the Kings County (Washington) prosecutor, James Whisman, commenting upon an opinion written by Judge Greenberg in People v. Moscat, if the facts turn out to be wrong, it’s often more than just an interesting historical footnote…. It actually changes things.

And as a future lawyer — I will be notified of passing the July 2006 bar exam in November 2006 — I disagree with the implication of Mr. Whisman’s recently-posted comment.

Anyone who knows me knows well my enjoyment of legal theory. In fact, tonight after class, my Remedies instructor and I were discussing the fact that one thing I find less interesting about the class is the de-emphasis on theoretical aspects of the law, at least as it’s being taught to my class. And I value constitutional law at least partly because there is so much about it that is theoretical. Nevertheless, we can never forget that law is very much about people and the specific problems (grievances, crimes, what-have-you) that bring them before a judge and/or jury.

The theoretical aspects of law are important to no small degree because of the impact they have on our lives. Conversely, our lives — and the specific facts of them — influence the development of the law. (This point is hammered home in Rotunda & Nowak’s first volume of their five-volume Treatise on Constitutional Law. “Had Marshall avoided the constitutional issues in this case, he might not have received a similar opportunity to establish the basis of the judicial power.” [Rotunda & Nowak, Treatise on Constitutional Law: Substance & Procedure 3d, vol. 1, p. 47, emphasis added.] And they further note how important it was to the development of the United States’ legal system that this case came along at that particular point in history.)

And so I reiterate that it was not insignificant that Judge Greenberg used completely incorrect facts in coming to his ruling in People v. Moscat.

Mr. Whisman says he agrees with me that it’s safer to talk about ideas, rather than facts, and that this is what he meant by saying that, “in that limited sense, the judge being wrong about the facts isn’t the point, just an interesting historical footnote.”

But judges in American courts of law — particularly trial judges — are not about the business of teaching constitutional law. When acting on in limine motions, as in People v. Moscat, their job is to decide actual cases and controversies — which very much depend upon the facts of a particular situation or event — in accordance with established law.

And, if anything, the fact that “the facts” of Moscat turned out to be not what the judge thought they were is significant because it proves the very point that some 911 calls lack the “excited utterance” quality upon which Judge Greenberg relied in making his ruling. Had Greenberg known that the 911 call did not actually have the characteristics of an excited utterance, his ruling might — I might even say should — have turned out differently.

Greenberg’s lack of awareness of the actual facts of the case lead to a ruling which is contrary to the very spirit of the Sixth Amendment and of Crawford v. Washington. As I noted in “Satire, Reality & a Return to the Dark Ages,” the 911 call was actually made by a neighbor some nine hours after the alleged attack. The call was then utilized as the only evidence in the case against Moscat. (The prosecution eventually abandoned the case.)

As I said, this case proves, if anything, the importance of the Sixth Amendment’s guarantee that an accused actually be confronted — which has been interpreted to mean that he gets a chance to cross-examine and force a declaration of the accusations under oath — with the witnesses against him.

As I said before, the facts matter. If Greenberg had been aware of the specific facts relating to this 911 call, he could have appreciated that 911 calls like the one in Moscat, while damning, are fraught with the very peril the Sixth Amendment was meant to defeat.

Greenberg’s ruling is certainly much more than an historical footnote. And were it not for the “facts” upon which it was based, it most likely would have turned out very differently, indeed.