Sunday, March 2, 2008

The other day, I got into one of those conversations that all public defenders get sucked into. This one led off with a non-lawyer asking me, "How many times do you get a client back after you've gotten him off on a technicality?"

Now, having gone to law school, I no longer simply answer questions as they are asked. If I think the question you have asked me would require me to accept an unfair assumption, I will challenge that assumption. If your question involves essential terms, I will clarify what you think those terms mean. There's no sense in my answering your question if we aren't on the same page about what the words we are using mean.

So I asked this Guy, "What do you mean by technicality? Do you mean a violation of a constitutional right?" (I was both clarifying his term "technicality" and challenging the unstated assumption that obviously-guilty people get away with crimes based on minor things that shouldn't matter.)

He said, "You know. When they arrest a guy and know he did it, but the evidence gets thrown out."

"Because it was obtained illegally, in violation of the 4th Amendment?" I asked.

"I don't know what that is." (Good lord, what are we teaching people these days? Don't we care enough about our constitutional rights to know what the hell they are? I really didn't mean to sound like a pretentious, superior bitch. I just assume people know what the 4th Amendment is. If I make college-educated (hell, high school-educated) people feel stupid for not knowing what the 4th Amendment is, well good. They are stupid.)

He was getting a little frustrated with my questions, even though I was just trying to understand what he thought a "technicality" is. He then suggested that it would be a technciality anytime we had a video of the defendant committing the crime but the defendant still couldn't be convicted.

Now, I will admit, I got a little lawyerly. "How do you know the videotape is accurate? Hasn't been tampered with?"

Guy retorted, "I'm a tech guy, so I would know." Well, no you wouldn't because you would never have access to the tape to examine it. But, I digress.

Guy, like a lot of people who express strong opinions, didn't really like being asked to think his opinion through. He believes it is wrong for criminals to get off on "technicalities." He believes it strongly. But don't ask him what he thinks a technicality is. Don't ask him how he knows someone is guilty before that defendant has been convicted at a trial with properly-obtained and tested evidence. Don't ask him how he knows someone is guilty before witnesses' memories and credibility have been tested by cross-examination. If you ask him to think about these things, you're just "lawyering" him.

Is it really too much to ask that people think through their opinions? Is it to much to ask that they be able to state a logical explanation for their opinions? Apparently it is. Because people just want to react emotionally, with much indignation about "criminals getting off" without thinking through the whole process.

So let me spell it out for you. We have a process for a reason. Yes, police investigate crimes and prosecutors charge people so it is safe to assume that those law enforcement officers have some basis for thinking the defendant committed the crime. But nothing the state thinks is true has been tested yet. So we test it by these rules, probably the things Guy and folks like him think are technicalities.

My client confessed, you say? But did he know he didn't have to talk to you Mr. Detective? That he could have a lawyer? Did you police coerce him to confess in some way? If it's no, no, or yes, the court will rule the confession cannot be admitted at trial. You may say that's a technicality. I say, if the confessor was badgered or felt tremendous police pressure to tell them something, then how can we say that confession is reliable?

You found drugs on my client, you say? But you had no legal basis for searching him so that evidence will be thrown out of court. Technicality, you say. I say, if you would search my client illegally, what other laws would you break? Like lying under oath or planting evidence perhaps?

These "technicalities" as you call them are procedural rules (usually based in the Bill of Rights) that help ensure evidence is accurate and reliable. If the state didn't follow the proper rules and procedures to get the evidence, the evidence itself shouldn't be trusted. If you accept the evidence as true before examining the process by which the evidence was obtained, you're putting the cart before the horse.

So that's why we have all these "technicalities" like the 4th Amendment (protecting us against illegal searches), and speedy trial rules, and rights to lawyers, and rights to public trials, and rules of evidence. And if one of those technical rules is broken, then hell yea, the defendant should get off. Because those rules are all necessary to make sure that the guy that at first glance appears to be guilty, really, really is guilty.

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