Monday, May 28, 2007

Justice vs. Vengance and Efficiency

As I was writing this post on the defendant who cold-cocked one of his jurors and whose case was mistried, I was thinking that if more people read this blog, my post would pull an indignant comment or two. It did, from Anonymous, who commented on two posts in a row.
(Anonymous' comments are in red)

Anonymous had two beefs with the outcome of Richard Glawson's first trial: First, that the mistrial appeared to reward Glawson for his bad behavior. Second, that the mistrial wasted taxpayer's money.

"I guess the esteemed "judges" weren't in law school when they taught that a person was not entitled to profit from his own wrong."
The judges probably were in law school when they were taught that there was a tree called "he who comes into equity must come with clean hands." (which is the origin of the maxim that anonymous stated in the negative) But they also learned that there is another tree called "a person is entitled to be tried on the facts of the crime of which he's accused, not on his past" and another tree called "a person is entitled to be tried on the facts of the crime of which he's accused, not on facts not having to do with the facts at trial" (those tree's nicknames are 404b and 403, respectively)
More importantly, the judges also learned about a forest called "due process" and another forest called "impartial jury"

Glawson was on trial for shooting a cop, carjacking, etc. He was not on trial for battering that juror; if he was, that would have been proper and relevant evidence, and the jurors from the first case would be witnesses, not jurors.

"It never ceases to amaze me how liberal bleeding hearts always feel sorry for criminals."
Actually, when I first read the article, my heart said, "serves that little sh>> right;" then my brain took over and realized that even dicks are entitled to a fair trial. Its also interesting to note that the "no profit from wrongdoing /clean hands" maxim is one of the maxims of equity. Equity, as in not the law, but an emotional response serving to excuse a decision not to uphold he law "It just ain't fair." (or in this case, "But look what he did!")

(Besides, if the "sleep in the bed you made" maxim really applied, Geo. Bush (FT leader), Condi Rice (a-gunner), Dick Cheney (SAW) and Don Rumsfeld (rifleman) would be patrolling Sadr City, winning hearts and minds.)

A criminal trial is not a societal determination of whether a defendant is a bad person. A criminal trial exists to determine whether a discrete bad act occurred. It is the jury's duty to determine whether that discrete act occurred, free from evidence other than the discrete bad act. Their decision must be free of things that would distract them from finding or not finding whether those discrete acts occurred. Distractions include the accused's record,(who, given his crime, likely has a record as long as my arm) his behavior, his color, his national origin, etc.
(Of course there are exceptions, but they have yet to completely swallow the rule)

It is a human tendency to judge the whole person, not the act. That's partly why the 400 series of the evidence code exists. And that's why I initially thought "Good - the little turd deserves it" That's also the reason why the mistrial was ordered; after intellectual reflection rather than emotional reaction, that was the only just result.

As for Efficiency, that's the Founding Fathers' problem. They're the ones who thought justice was more important than money. I agree. Our system is inefficient, and the only way to really make it more efficient is to make it less fair. (Remember when habeas review actually meant something?) I can think of a lot of things that are a lot more wasteful of my tax dollars than our criminal justice system. A standing army is a hell of a lot more wasteful and inefficient; but I'm not ready to give that up, either.

As for "tell that to the taxpayer who's money was wasted by a criminal" - he's not a criminal. He won't be one unless he's found guilty of a crime. (Unless we make the justice system so efficient that we can determine guilt or innocence merely by reading about something in the paper or on the internet.) Under the law, an accusation does not make you a criminal; nor does an accusation make you less truthful. For anonymous and the court of public opinion, that may be (unforunately) so; but it's not supposed to be that way in a Court of Law, which is where Glawson was.

I have no doubt Glawson will be punished, but there'll be a time and place for it. Inside the trial for a different set of events is not the right place or time. The time to be punished for hitting the juror is not in his other trial, but after trial (or plea) on a charge for assaulting the juror. Remember the Red King (verdict first! trial later!) from Alice in Wonderland? He demanded that the jury consider the verdict immediately after the reading of the charges. It was satire then, and just as wrong in reality now.

I've gone on long enough, so I'll Godwin myself here - I don't want a system where the Courts run on time; I want Courts that listen, and I want Courts whose bottom line is justice, not money. In reality, Courts end up in a balance between justice and inefficiency on one side and efficiency and injustice on the other. We sure as heck don't need any help overbalancing on the efficiency side. There are countries where the justice system is a lot more "efficient," but I wouldn't want to claim citizenship in any of them.



Blogger Gary Norris said...

During a recent investigation, a cop asked me why I'd want to be a Public Defender when I could work for the side that helps so many innocent people.

I shrugged.

He insisted that whereas I can help innocent people only infrequently, he helps innocent people everyday.

I told him it was a justice thing.

He shrugged.

And I insisted he answered his own question.

Your Anonymous reminds me of this cop and everybody who thinks that way.


5/31/2007 9:52 AM  
Anonymous Anonymous said...

Thanks for the treatise on the clean hands doctrine. However, I think you miss the point. There is a fundamental principal of law--one cannot create or invite error and then be heard to complain on appeal. That's a legal (vice equitable) principle, and it springs from the the nature of trial errors and what you get to appeal.

But of course, you cannot help but wrap yourself in notions like due process etc. Well, I got news for you . . . . the Constitution, last I checked, did not have a clause which states that defendants get to get do-overs because they screwed with the trial. Moreover, your notion of what the defendant is entitled to, of course, incentivizes defendants to screw up at trial--don't like the make up of the jury, attack one of them . . . . I found the "alice-in-wonderland" references comical. If there's any Alice-in-Wonderland reasoning, it's found in your post. A defendant gets (presumptively anyway) an impartial jury. Then said defendant causes the jury to be partial (or at least a big time danger that it is anyway). And you argue that the fact that he caused the alleged partiality is irrelevant and that the defendant gets to have a new impartial jury--even though the state provided him with one already, and the state didn't do anything to change it. (Of course, it would be interesting to do an acid test of my theory--let's say a guy gets a PD and during trial murders him in court--does he get a new trial and a new PD for the trial. I would argue, forcefully, no he does not. Somehow, I doubt I'd get more than one or two votes on that one from SCOTUS--but it would be an interesting case. Of course, such an extreme example does not undermine my argument in the least.)

As for the "criminal" statement--he slugged a juror, ipso facto, that makes him a criminal. If I murder someone and I get away with it, am I not a murderer? Spare me the urbane condescension.

Your dismissal of the societal resources argument is nothing more than sloganeering. Defendants simply are not at liberty to squander them in such a manner.

I'd also note, Mr. Smarty-pants that Rule 404(b) and Rule 403 are wholly inapplicable here. Technically speaking the slugging of the juror was not evidence--thus, Rule 404(b) and Rule 403 don't apply. (By the way, even though I have never argued a case and I am a transactional lawyer, I'd stack my knowledge of Rule 404(b) against most practitioners any day of the week.) By the way, I'll give you something to cheew on--read Miller-el v. Dretke and think about the "forbidden inference" . . . .

All in all, if I do say so myself, a pretty good post from a transactional lawyer.

As for Mr. Norris, spare me your smugness. My arguments are cogent, and unlike the treatise on equity and the frolic and detour about evidence rules, have the law on their side. I stand by my assessment of the appellate court judges. They are idiots. And worse, they see fit to bail out wrongdoers. I doubt most litigants get treated with such succor. Interesting that criminals get the breaks--says a lot about where sympathies lie. But that's right Norris, I am just some unenlightened trogolodyte who doesn't care about people's rights. Actually, though, if you think about it, citation to such noble principles as due process etc., cheapens those very principles.

5/31/2007 11:00 PM  
Blogger Gideon's Guardians said...

Wow... I hardly know where to start.
First, housekeeping matters:
Invited Error is not 'fundamental' in the sense that the Constitution is fundamental.
Nor is it 'fundamental' in the sense that the principles behind 403 and 404b are fundamental, which is what I was getting at in the post. The idea that one is tried for the crimes of which one is accused and not on other matters is fundamental to the American system of justice, and those rules try to ensure that that principle is honored in our courtrooms. The reason those rules exist is that most people don't think that way, and aren't capable of making that shift from the way they life their life to the way it is in a court of law. Anonymous' posts demonstrate that divide; He/she just doesn't get it; therefore those rules exist.
In terms of the law that actually controls, something that does happen with some regularity is then the prosecution mistries a case when it's going poorly for the State. Anonymous should be surprised to hear that in these situations, the State gets their new trial. Why? Because the defense has to prove that the case was mistried with the intent to mistry the case. No 'ipso facto' for the State. Mistrials with prejudice happen very rarely, you need a smoking gun as to intent, the fact that a first year law student would know "x" would cause a mistrial isn't enough.

This leads to the Second point; staring open mouthed at Anonymous Through the Looking-Glass:
"Ipso facto" a criminal. How is this NOT verdict first, trial later? (at least for an accused; see also the earlier comment re: its OK to call Defendants liars, but not cops) I understand that precious few people think like that in their daily lives; that paradigm shift from the way we operate in our daily lives to how we must operate in a criminal trial is one of the things I focus most on in voir dire. Proof beyond a reasonable doubt isn't the way we run our lives, we run out lives on a preponderance of the evidence. The presumption of innocence only applies to those few people we know who we know in our hearts to be above impropriety; those people who we will believe in the face of overwhelming evidence. It's not natural to apply that same presumption to a stranger; but that is exactly what the system asks of people in a criminal case.
Although I would be happy if Anonymous could get merely an intellectual acceptance of the underlying principles of the criminal justice system, jurors need to also have an emotional' visceral understanding of those bedrock foundations.
Anonymous and I could probably come to an agreement as to an extrajudicial punishment for Mr. Glawson; but there is a difference between watercooler talk about what we would do and the realm of what the judicial system is to do with Mr. Glawson.
My hope is that Anonymous at Biglaw does know the difference between the street and the Law and is just trolling his/her po' country cousins-in-law. If not, it's good he/she's contained doing transactional work.


6/04/2007 11:53 PM  
Anonymous Anonymous said...

First of all, you overstate the case re: 404(b). While the "forbidden inference" does dovetail with some "due process" concepts, given the "depraved sexual instinct" rule and others, Rule 404(b) is not coterminous with "fundamentality".

Second, the issue, Jack, is not whether Glawson is going to be tried for "other matters". He is not. The issue is whether he will be tried by a jury presumed impartial or a jury that, though his own hands, may be biased against him. You overstate, and I think you know it.

Third, I am quite certain, thank you, that I know the difference between how I feel and what the law requires. I know that the law is pretty clear, in most jurisdictions, that one is not allowed to intentionally create/invite error in a trial and then complain on appeal about the error. That's what happened here.

Fourth, re: state mistrial. So what? While I agree that there are some pretty egregious mistrials caused by the state, you present false equality. First, the state isn;t usually the one moving for a mistrial after it caused the harm and second, proof of intent is pretty easy, when some jerk slugs a juror, unlike a mistake at trial. A weak argument, counselor.

Fifth, I can call the guy a criminal all I want. He is. And I can point out the waste of scarce resources--something which courts can take into consideration.

Sixth, and most importantly, nowhere in the Constitution that I read does it remotely state that someone gets to interfere with a trial and then, as a result of his interference, get a new one. Nowhere. You can wrap yourself up in the "due process" etc. etc., but the bottom line is that nothing requires this result, other than a soft spot in some judge's heart for some criminal (oh, excuse me, the "accused").

Eighth, you completely goatrope the issue re: Constitutionality. Defendants waive fundamental constitutional rights all the time, either intentionally (i.e., a guilty plea) or by neglect (failure to object--whatever). There can be such a thing as waiver by slugging juror.

If this were a purely federal constitutional issue and were up to the Supreme Court on direct appeal, I predict Glawson would lose 8-1 or 9-0. This is an easy case. The Constitution does not say a word about explicit waivers of any rights, other than the three rights in the standard colloquy in a plea agreement. Moreover, the Constitution does not require the state to give a guy who slugs a juror a do-over.

Jack, if you think so, you are a true believer.

6/05/2007 1:00 AM  
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