Preaching to the choir

We all know that bad facts make bad law. We accept that maxim. But sometimes when I'm actually faced with it, I have to shake my head at how blatantly prosecutors and juries will disregard the actual law to get a result they want.

Like the myspace hoax case. Everyone thinks a grown woman creating a myspace profile for a teen boy so she can mess with a 13 year-old girl is bad. No argument here that the woman is a big, dumb bully for pulling that crap. But we shouldn't bend and twist and mutilate the law to find a crime to fit her bad behavior. If her behavior doesn't fit the elements of a criminal statute, it isn't a crime.

I've got a case right now where the prosecution has decided that my guy is a bad, bad man. They want to nail him for as many charges as they can possibly wring out of a 2 minute incident. They came up with 7. Pretty impressive, really. (And utterly unnecessary, too, because our state has an absolute cap on the possible sentence that could be reached with only 4 or 5 of those charges.)

But two of the charges are completely bogus. Even if you accept that things went down exactly as the alleged victim says they did, those two charges just don't fit. But when I point this out to the state, they just stick their fingers in their ears and yell "La La La La La La La" until I go away. They simply say, he did this thing. But what they say he did isn't actually a crime. At least, it's not the crimes they charged him with. In fact, I think the way they charged these two crimes is bizarre and both legally and factually impossible.

No one wants to face that basic truth. My brilliant, well-researched, excellently-written brief breaking the charges down into 3 separate issues went utterly unresponded to. (Beyond a "he did it so why is he complaining that the actual way we charged it doesn't really cover what he did.") The court doesn't want to hear me argue my issue.

But here's the thing, state. The other charges (5 of them) are pretty serious. Three of them are major felonies. As long as a jury believes the alleged victim (which, let's be honest, you fully expect they will), my guy will get prison time. And not a small amount of it. He'll have to do post-release, register, he won't get to own a gun. All that good stuff. So you really can let these two charges that just don't fit the facts go. Really. You don't have to make bad law here so please don't try.