Friday, October 10, 2014

Dissing the Heinous Crime Rule

I'm at a gathering of criminal defense lawyers which just naturally gets me thinking about what criminal defense lawyers do.  And no, I'm not wading back into that thicket today, though if you're remarkably bored you can search the archives for a string of posts in the Who-We-Are-and-What-We-Do series.  Anyhow, this is just an opening (you gotta start somewhere) to get to the simple point (which is itself a set-up for where I hope to take this).

We represent people charged with and convicted of crimes.  Some of the crimes are crimes only because the law says so.  (See Greenfield this morning on New York's law against gravity knives, for instance.)  Some are crimes because, well, it's against the law to steal a loaf of bread even if the kids are hungry.  And you don't have a right to beat up the guy on the next barstool just because he looked funny at you.

And then there's the monsters.  We represent people accused of, then convicted of, truly horrific things.   Really, until you've walked for a while in the trenches of the criminal law, you don't have a real understanding of the things people do to one another.  Baby rapers, torture killers, guys who fly airplanes into buildings, self-declared monarchs who commit genocide.  Some of the folks charged with, even convicted of those crimes in fact committed them.  

Others - that's another of the horrific things people do to one another.  They charge them, and convict them, of stuff they didn't do.  Even really awful stuff.

Out in the world there are the Nancy Graces, the Thane Rosenbaums, the Robert Bleckers, the Bill Otises.  They know, just know, who really did it.  They have no sympathy for the system that they claim coddles the evildoers, the monsters.

But here's a simple point, and it's where I want to go, what I want to be as clear as possible about.

It's when the charges are worst.  It's when the outrage is greatest.  It's when the accused is most clearly guilty in fact.  When she's most reviled, most despised.  When there's no excuse to be believed, when there's nothing.  When it's the devil himself in the box.  When it's hardest.

That's when it matters most.

Not just that we be there.  That part's easy.  We're there because it's what we do (again, search the archives).  

Floyd Holder, a fine lawyer gone for some time now (Jonathan Turley, who tried a case with him, once described him to me as "the Rumpole of the Plains"), described to me what he called the "Heinous Crime Rule."  
If the crime is sufficiently heinous, there's no such thing as reversible error.
Which is, I regret to say, mostly true.  And exactly wrong.

Because that's when it matters most.  That's when our system is most tested.

Because that's when the Rule of Law is most readily susceptible to giving way to the Law of Rule. It's when the courts, that don't want to, are most obligated to say 
But if you can't do it right, then you don't get to do it at all.

If the measure of a society is how it treats the least, the measure of a legal system, and the measure of a judiciary, is how it treats the worst.

Thank you for your attention.


  1. That last quote is one that, I think, I'll never forget. Thank you.

  2. "If the crime is sufficiently heinous, there's no such thing as reversible error."

    In my neck of the woods, that includes just about everything more heinous than speeding.

    1. Pretty much everywhere, I'd say. Alas.