Saturday, October 3, 2009

Cartographer's Plot

There's a line in Rosencrantz and Guildenstern Are Dead, Tom Stoppard's great reworking of Hamlet, where, while they are on a boat heading for England, one says to the other something like, "What is this England, anyway? I don't believe in England." The other responds with my favorite question in all of literature. "What do you think it is, a cartographer's plot?" I want to talk about Law (with the uppercase "L" intentional).

As Greenfield points out with regularity (
here, for instance, and here), there's a huge disconnect between what happens in law school and what happens in the real world of legal practice. He's clearly right about that. Whether it's a problem is, I suppose, a question of what you imagine law school ought to be.

If it's graduate school goal, aimed at the intellectual endeavor of learning theory and understanding jurisprudence and "learning to think like a lawyer" (whatever that method of thought might be), then traditional law school education is probably an adequate model. If it's the trade school goal, aimed at turning out actual lawyers who can represent actual clients in actual legal practice, that traditional law school education is probably somewhere between worthless and dangerous.

In days of yore, the standard way of becoming a lawyer was to be apprenticed to one. You'd "read for the law" by working for a practicing lawyer, and at some point you'd become certified (or certifiable, perhaps). Along about 1850, we got the stand-alone law school and shortly thereafter the idea that one learned law not by doing it but by studying judicial opinions and being grilled on what they meant and how they might apply in other contexts.

Since that educational model bore no clear relationship to the practice of law, it became wedded to the bar exam. Passing the test, which serves as the final hoop to jump through in the certification system, would demonstrate not that you'd learned the law (which is what a law degree was supposed to demonstrate) but that you had some idea about what to do with that learning. So there you have it, the newly minted lawyer, learned (and degreed) in the law and tested in practice. Except, of course, without necessarily having either exposure to or actual testing in practice. Pass the bar exam, take the oath, and you can immediately start ruining the lives of real people.

Frankly, I'm enough of a pointy-headed intellectual to think that all that theoretical schooling has some value. My concern is that we don't add a mandatory component of some sort of real internship at the end of it. Like the physician who cannot practice without some supervision upon licensing, so for the lawyer. BigLaw and agency law and being a prosecutor supposedly provide that, though the problems with the way law is often practiced at BigLaw and agencies and prosecutors' offices indicate that they often do a bad job.

But all that's by way of introductory "going to the sheep" (a lovely phrase meaning "a digression" I learned last night at the dinner accompanying a conference of Romance Language professors).

Onto the Law.

I have, over the years, spent a fair amount of time with young lawyers and with law students. One of the things they tire of hearing me say is that I don't believe in the Law. That is, I don't believe in the law school idea of Law. It's interesting. I sometimes enjoy studying it. I spend a lot of time, perhaps too much, thinking about it. I even use it in my legal work. But it's nonsense, as much a fiction as the emporer's new clothes, and nearly as worthless as they for the legal equivalent of staying warm and dry.

I know of no better way to explain this than with the troublesome case of Paul House. House was charged, convicted, and sentenced to die for the 1985 rape and murder of Carloyn Muncey. Through years of appeals and post-conviction proceedings, he maintained his innocence. A federal district court, though concluding that he'd procedurally defaulted his innocence claim (by not pursuing it at all the proper times in state court), nevertheless held a hearing to see if he could present enough evidence of innocence to overcome the default. It concluded he did not.

Eventually, the case made it to the en banc Sixth Circuit. That mean that all fifteen of the active judges on the court would hear the case. In House v. Bell, the court issued three conflicting opinions (available here), which together say pretty much all there is to say about law and politics and fundamental fairness, here's what happened.

Judge Norris, writing for eight judges appointed by Republican Presidents, held that House should die:
Despite his best efforts, the case against House remains strong. We therefore conclude that he has fallen short of showing, as he must, that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence.
Judge Merrit, writing for six judges appointed by Democratic Presidents, said that House was obviously innocent and should be released from prison immediately:
I regard this as the rare or extraordinary case in which the petitioner through newly discovered evidence has established his actual innocence of both the death sentence and underlying homicide.
The final vote was Judge Gillman's. He, too, was appointed by a Democratic President. He concluded that it was a really close case and House should get a new trial.

Because the majority voted to affirm the district court, absent further action, Paul House would be executed.

Let's summarize: Fifteen judges, each of whom claims to be following the same legal tests established by the same laws and clarified by the U.S. Supreme Court reach three different conclusions. Every Republican judge believes Paul House should be killed. Six of Seven Democratic judges believe he should be set free immediately. The seventh Democratic judge thinks it's too close to call and that he should get a new trial. The result is that House should have been killed.

In any rational system, in any fair system, this could not be the outcome. Judges would not split perfectly along party lines. There would be some consideration on the part of those who think he should die that, given the astounding degree of difference on the other side, perhaps they should look again, even give up a bit of their certainty. Same for the folks who thought he should be freed immediately.

What the Sixth Circuit's House opinion teaches is that the law is not about the Law or about fairness or about justice. It's about politics, pure and simple. At least, it is much of the time. At least, it was for House.

House's is an extreme case, and the Sixth Circuit is, in this regard, an extreme court. But we see much the same thing in SCOTUS. It may not be precisely that ideology trumps legal analysis, but you know, if you pay any attention to these things, where most of the Justices will align themselves on most controversial issues long before they vote. And the number of 5-4 decisions from the Court indicates just how broad and stark these divisions are.

What they teach you in law school is that the rules matter and the precedents matter not basically for their own sake but because that's how the law works. Judge's apply precedent fairly. There may be some ideological underpinning, but basically if you have the case law on your side, you win.

But you know, spend some time where I've spent it, in the criminal courts in Texas and Ohio, and you come to see that just isn't true in any consistent way. Politics, ideology, courage, the local newspaper, disgust. These control.

I was arguing a case in the Sixth Circuit. The first words from one of the judges indicated that he'd conducted his own testing of what the evidence showed and concluded that my representations of its significance were wrong. He's supposed to be limited to the record below. He's not supposed to conduct an experiment. But I knew going in that I would lose even though I was legally right. The court wasn't going to rule for my client unless the other side completely screwed up. The law be damned.

And so it is with the Law. It's the framework used to justify the decision otherwise made. It's the excuse, not the basis. They don't teach that enough in law school, don't teach enough about power, don't teach enough about politics.

And it's not just that the traditional law school model, and even the ever-more-common clinical classes plugged into that model don't really teach how to craft an opening statement or pick a jury or decide on a theory of the case or even how to ask questions on cross-examination. It's that they don't teach the real skills, whining and pleading.

They don't teach you in law school how to get on your metaphorical knees and beg a judge to let you have the money to hire an arson expert when the government claims that your client is guilty of arson because, hell, why bother. After all, the government had an arson expert and he concluded the fire was arson. You expert would just agree, so what's the point. No cash, sorry.

They don't teach how to ask the judge to give your client less time when the newspaper's just put out an editorial calling for a sentence greater than that allowed by law. They dont teach you how to deal with the media, how to say "no comment" without looking like you're afraid to comment or how to comment in a sound bit short and clear enough to get onto the 11 o'clock news.

And they don't teach you that the Law is something you have to use, but not something to believe. "[T]he law," Mr. Bumble said, "is a ass, a idiot." Often that seems to be so. More often though, the Law is a sham.

Mike, at Crime & Federalism has the best tag line in the blawgging business,
Because everything I was ever told was a lie.
As Stephanie Plum would say, "Damn skippy."

Paul House is, by the way, alive today and out of prison. The U.S. Supreme Court took in his case and reversed the en banc Sixth Circuit. By a vote of 5-3 (Alito not participating, but given the rest of the lineup it's clear that he would have voted for death given the opportunity) and in an opinion by Justice Kennedy, the Court said that House did not prove he was innocent but made enough of a showing that the lower courts had to attend to the merits of his claims. (Opinion here.)

Ultimately, he won a new trial and the State of Tennessee, after some posturing, dropped the charges.


  1. Excellent blog! I couldn't agree more with the conclusion you make that: "Politics, ideology, courage, the local newspaper, disgust. These control". I've learned this first hand as a family member of a defendant. I am amazed how the judicial system is not at all about the truth or the law, but is instead political and media driven. A prosecutor is elected, a judge is elected hence the politics enter the judicial system...if you happen to get charged during an election year, hope and pray your story doesn't make it to the local paper!