Interpret or Make Law?

“We want judges who interpret law, not make law.” is ignorant right-wing hogwash.

We all agree that law needs interpretation. It rarely springs fully-formed from the legislature, so that its meaning is clear to all who read it. Even the U.S. Constitution needs interpretation — it doesn’t explicitly address every conceivable situation.

So we do indeed want judges who interpret the law. But interpreting law is making law. The law is what the legislature says it is, as interpreted by the judiciary and as enforced by the executive. Every judicial decision — even those with which the right wing disagrees — is an interpretation of the law.

If the legislature thinks the judiciary has misinterpreted a statute, it can (and is expected by the courts to) rewrite the statute. If the People think the judiciary has misinterpreted the Constitution (for example, by finding a right that the People don’t think that document guarantees or should guarantee), the People can amend the Constitution.

“Judges who make law” are judges whose interpretations of the law gore the right-wing ox.

Blogging Politics

From the mailbag:

Please don’t take my unique questioning ideas personally, as I don’t know and I am just asking you what you think. I was wondering whether being openly political on your professional legal blog may sometimes be unwise. I have written or emailed other lawyers the same question. I also feel passionately about politics and love politics and I guess I am somewhat of a political junky. Yet, I think irregardless of which party wins or which party I support, that maybe it would be more correct to post political ideas on a different blog than my professional legal practice blog. Some people say blogs are like diaries and people put down emotional things and say things like I feel “cloudy” and stuff like that. I have been entertained and educated by blogs and if I disagree with the blog, well I don’t have to read it, although I respect other people’s ideas so I usually read it anyway. Never-the-less, would you feel uncomfortable in representing someone from the opposite political party from you. Also, can someone from the opposite political position have worthy valuable ideas and deserve some degree of respect even though you disagree with them. If your mother or father or someone you care about were members of the opposite political party would you treat them with respect? Are law blogs required to be political? Are there some things that should be above or beyond politics? How would it feel to be sentenced by a Judge who was a member of the opposite political party or prosecuted by a prosecutor from the other side or defended by a defender from the other side or arrested by a law officer from the opposite political party? I think there have been some historical incidents involving political type things and they usually go against the politicizer. Like Socrates, all I know is I don’t really know, but asking the question makes you think.

Not so much.

Criminal defense trial law is politics — not just the politics of interpersonal relationships in the civic arena, but also how human beings relate to their government. It’s foolish to suggest otherwise.

Arguably, the criminal defense lawyer who thinks that he (like the legal system?) is “above” politics is doing only half the job:

The legal system of every country has as a major purpose the support of the existing political relationships. The lower criminal courts function as an assembly line in order to keep politics out of the courtroom, thereby leaving the status-quo unchallenged . . . . Legal ideology thrives on depoliticizing issues into abstract, external rules and process. Our job is to bring the reality of political relationship into the equation.

(Paul Harris, Warrior-Lawyer.) 

We don’t blog about the world that we’d like to have; we blog about the
world we have. The choices that voters make in elections at every level are going to affect how free we and our children will be. The criminal justice system is not above politics, and
neither am I.

Politics doesn’t necessarily mean partisan politics. From the point of view of a practicing federal criminal defense lawyer, neither John Ashcroft nor Janet Reno was any better than the other. When our view is informed by our loyalty to a particular political party, we risk appearing naive and ignorant. Not that that should bother us. 

How does it feel to be arrested or prosecuted by a member of the other
party? I imagine that, if you’re going to feel unfairly treated, it’s
better to feel unfairly treated by someone for whom you didn’t vote
than by someone for whom you did. Here in Texas, judges are elected in partisan elections. In Harris County, the Republicans have had a lock for many years, and we suffer some miserable judges as a result. Same deal in Travis County, but substitute “Democrats” for “Republicans.”

I’ve got lots of clients who are Republicans. They’re shocked to see the injustice in Harris County that results from their voting habits. I’d bet that there are Democrats accused in Travis County who feel the same way. Both counties will be better places when neither political party thinks it has those elections sewn up.

Partisan politics should have no place in the criminal justice system. And Rhodesian Ridgebacks should poop Krugerrands.

Improv, Trial, and Politics

From a 2007 interview with improvisational comedy teacher Keith Johnstone:

GM: And you won’t be nervous.
KJ:
No. Why should I be nervous? So I can screw up? If you can’t screw up,
you have to be nervous. I can’t win them all. Usually it goes fine. But
the one thing I mustn’t do is to try to do better. People are so afraid
in public they might make a mistake. If you make a mistake in public
and stay happy, they like you. That was Johnny Carson’s great skill. He was a genius at that. We loved him for that. I saw Jack Benny on TV the other day forgetting Liberace’s
name. I have a suspicion it was on purpose so he could demonstrate a
total lack of self-punishment. That’s the point I try to teach
improvisers. If the improvisers screw up and stay happy, then we want
to take them home and feed them grapes because they’re these lovely
people. But if they screw up and look unhappy and miserable, I can get
that at home; I don’t have to get it at a theatre to see that. I’m
saying it should be an exhibition of good nature. I would happily go to
see an exhibition of good nature any time.

I’ve written about improv here before, referred to Keith Johnstone, and recommended his books. One of his rules of improv that I try to follow in the trial of criminal cases is to remain goodnatured. The audience (jury) enjoys watching us perform goodnaturedly. Even though we’re fighting about the most serious stuff there is, they don’t like to see us taking ourselves too seriously.

We show our good nature in the way we relate to the other people in the courtroom (witnesses, opposing counsel, court staff) by our treatment of them — if we are polite and cordial toward them, we look better. If they are not polite and cordial to us in return, so much the better; in the audience’s eyes that doesn’t reflect on them but on us. To have a judge heaping abuse on us is entirely to our advantage, but only if we take it goodnaturedly.

We also show our good nature in the way we relate to ourselves, by screwing up and staying happy rather than punishing ourselves. Some mistakes are inevitable in any trial and, I would argue, beneficial; it’s better, in the battle for the jury’s hearts, to let them see us making mistakes and cheerfully forgiving ourselves than to appear inerrant and cold. Some lawyers engage in physical comedy — dropping papers, fumbling — I suspect for this reason.

Like all important lessons, this one is universal. It applies to life in general, and to politics.

At the debate on Wednesday, McCain got snarky several times about his opponent. I watched on CNN, and, in a graphic illustration of the audience not appreciating McCain’s display of ill nature, their undecided voters turned their knobs down all the way every time. They were turned off by the way he was relating to his adversary.

Sometime between the evening of October 16th and the afternoon of October 17th, John Sidney McCain III finally learned this lesson. He got on Letterman yesterday and, right out of the box, admitted screwing up. “What happened?” “I screwed up. I screwed up.” He stayed happy, and showed his good nature in relation to himself. There were no CNN-audience-feelings knobs, but if there had been they would have been turned up to 11.

Not that this is enough to get McCain elected, or even to get my vote — there’s still the Sarah Palin problem, not to mention the Republican problem — but after eight years of meanness and delusional infallibility in the White House it’s a relief to see that the Republican candidate is at least capable of good nature.

A Tale of Two DUIs

1. DUI (in Texas, called DWI) / POM (Possession of Marijuana) charge. Turned wrong way onto one-way street. NT/NA (No Test, No Accident). Field sobriety tests on video with patchy audio administered by rookie APD cop on uneven ground.

The standardized field sobriety tests (FSTs or SFSTs) have three components: Walk-and-Turn, One Leg Stand, and Horizontal Gaze Nystagmus. In this case, W&T-3 (officer claimed 6), OLS-2 (officer claimed 3), HGN-6 (of course). That is, on the video the accused appeared to do three things wrong (”clues”) on the Walk-and-Turn and two things wrong on the One Leg Stand.

The officer claimed to have seen more clues than are visible on the video. The results of the horizontal gaze nystagmus test are not visible on the video; only the officer performing the test can see how many “clues” the accused exhibits, so of course an accused always exhibits six clues on the HGN. (I think that’s one reason juries aren’t impressed by the “pen voodoo” HGN.) A prosecutor watched video and assessed the case as a 60% win for the State.

2. DUI (again, actually DWI, but most people think of it as DUI) charge. Good driving facts — stopped for speeding (which is not a sign of intoxication) and no front license plate. FSTs at scene not recorded on video, which cop says was “not working”. Maintenance records for video recorder do not reflect any subsequent repairs to it. At station, accused is steady as a rock, and declines to do the FSTs again, since she did them at the scene.

To me, the second case looks like the better case for the defense. If the first case was a 60% win for the State, the second is maybe 10%, but only if the defense lawyer phones it in and the jury comprises six of the prosecutor’s sorority sisters.

Yet the first case worked out for a plea to time served on a non-DUI offense (obstructing a roadway) which has no DPS consequences. The second will go to trial. Why? Not because it’s a case that the State considers worth trying, but because it’s in a different county — Harris County, in which the DA’s office policy is that it’s better to lose at trial than reduce a DUI to a non-DUI offense.

With essentially no power to plea-bargain in DUI cases, the misdemeanor prosecutors are trying loser cases. It doesn’t cost the individual prosecutors anything — these cases are used as a training ground for baby prosecutors — but they’re a waste of everyone else’s time. There’s also an opportunity cost to the Harris County DA’s Office’s fixation on DUI cases: it makes it less likely that more important cases will be properly handled.

For this fixation, you can blame MADD. Any time a single-issue interest group like MADD gets to dictate how its pet cause is handled in the criminal justice system, everything else is going to suffer.

Video Special: More of the Same

Like the man says, I have no sense of humor when it comes to totalitarianism, but maybe this was amusing the first time:

It was probably not as funny the second time:

And you’d hope this guy would have flat-out known better:

Just Say “Gosh, No!” to Dullards in High Office

If I need to have my spleen removed, I want someone truly exceptional doing the job, and not Jo Sixpack. I want the surgeon whose brilliance and creativity and education make him or her stand out from the crowd and even arouse the envy and resentment of ordinary people. Does that make me an elitist? If so, I’m okay with that. I’ll let the non-elitists have the surgeon with the 100 IQ.

High elected office is no different. I spend enough time dealing with dullard elected officials in the courthouse that I know that I don’t want any more in the White House. I don’t want my elected officials to say “eye-rack” for Iraq. Or “eye-ran” for Iran. Or “nucular”. I don’t want a Vice President who thinks that what that office needs, after eight years of Dick Cheney, is more power. Or one who can’t name a single news periodical (seriously: “all of them”?). Or one who can’t name a single Supreme Court case (other than Roe v. Wade . . . and Roe v. Wade).

The Bill of Rights: that’s where you’ll find our freedoms, and it’d be very hard for outsiders to take it away. The last people to have a chance? Maybe the British in 1814? Arguably the Nazis in WWII? Certainly not the Viet Cong or the people of Iraq or Al Qaeda.

It’d be hard, for that matter, for insiders to take it away unless we gave it up. We won’t give it up unless we’re scared. What are you scared of? There are things worse than death. Some would have us give up our freedoms to protect . . . our “freedoms”. I understand “economic freedom” (the freedom to keep Wal-Mart afloat),
but I don’t even know what “national security freedom” could possibly
be. I don’t want anyone anywhere near the halls of power who thinks
that calling something a freedom makes it a freedom. When we fight terrorism, we’re not fighting for our freedom but for our safety. Not that there’s anything wrong with that — I’d give up a lot for safety, but I’d give safety up for freedom.

It’s nice to think that quite literally anyone could be president. But just because they could doesn’t mean they should.

Genuine John McCain POW Bracelet

On ebay: a wonderful gift for a McCain supporter. Bidding starts at $100.

One small catch, though. Proceeds from the auction benefit the Trial Lawyers College, an institution that trains lawyers for people — plaintiffs’ personal injury lawyers, criminal defense lawyers, and other characters scary to the major corporations and frightened white people that form the Republican party’s base.

Politics

It’s that time again, when voters in about 20 states get to choose a president for the rest of us. Being in Texas, where I get only a symbolic vote in the presidential election, I am at some leisure to observe the mechanics of the election and consider how they might relate to the art & science etc.

There’s not a whole lot of difference between the two major parties. That’s what comes from having a two-party system: the parties cluster close together in the middle of the political spectrum because if one moves closer to its own pole (socialism on the left or fascism on the right), increasing its distance from the other party, it will lose some of the voters between the two.

I don’t like being lied to. A politician who lies to get a vote doesn’t deserve it. I also don’t like politicians trying to scare me. I have a pretty good idea of how dangerous the world is, so I recognize political scare tactics as untruths, if not lies. I believe that government should be a little smaller than possible.

When Republicans are in the process of making government bigger, I’m a Democrat. When Democrats are, I’m a Republican. Now, after eight years of a Republican administration spending money (my children’s and grandchildren’s money) like sailors on shore leave, and giving that money to big businesses, there’s not a snowball’s chance in hell that I’d vote for anyone from that tradition for president. I think that’s a pretty widely-held position. So it’s interesting to see what the Republicans are doing to try to keep the White House. Not discussing the issues, certainly — that’d be death to McCain’s campaign, and the campaign knows it.

I’ve written quite a bit on government’s use on all levels, including in courtrooms, of fear to induce the people’s compliance (before I started using categories; search for “fear”). That works, but it’s nothing new (how much of the Republican Party’s election playbook is based on Joseph Goebbels’s?).

What interested me about the convention speech written for Sarah Palin was the invocation of a quintessentially American fear: “those people think they’re better than us!” and its natural follow-up: “let’s teach them a lesson!” There is little we Americans dislike more than the idea that someone, somewhere, might have a sense of superiority to us.

Whether based in fact or not (”bitterly clinging to religion and guns” on the one hand, we’re “a nation of whiners” on the other), this is a potent metaphor in American politics . . . and in the courtroom. The Republican speechwriters’ description of how those Democrats feel about people from small towns probably matches how most Americans think lawyers feel about them.

The Republican campaign managers’ hope (that the voters’ visceral reaction to “they think they’re better than us” will distract them from the issues for long enough to hold on to the White House) would have been relentlessly focus-grouped before the metaphor was released into it into the wild at the convention. Lawyers will do well to remember this. Jurors are more likely to identify with the witnesses (and sometimes even the defendant) than with the lawyers or the government.

A lawyer who goes into court with anything other than a humble appreciation for the time that witnesses and jurors are spending to help get a matter sorted out is asking to lose the trial.

I’ll Let Someone Else Judge Whether That Was Appropriate.

A political convention is theatre, and the clothing worn by the participants is costume. Every choice has a meaning.

I think the costume designer for Governor Palin’s speech last night:

has a really dark sense of humor: