Wednesday, December 14, 2016

Lies, Damn Lies, and the Law

Some true stories:

  • A judge told me (off the record) that when it comes down to it, he finds cops more credible than lay witnesses.

  • Another judge told me (off the record) that if it had been a DUI he'd have granted the defendant's motion and dismissed the case, but the charge was aggravated murder so he denied the motion.

  • Another judge told me (off the record) that the three-judge panel trying the death penalty case dismissed the death specifications after finding they were proved but before the sentencing phase of the trial and imposed a life sentence because "we knew if the case had gone forward we would have sentenced him to die."

  • The Texas Court of Criminal Appeals explained that it was denying the pro se defendant relief because he'd filed his documents the wrong way, but if he did it right - and they told him how to do it - they'd grant relief.  He followed instructions.  They denied relief.

* * *
None of this, except possibly for the specific examples, is new to anyone who's been in the trenches for a bit.  If we were ever naive enough to believe, we've learned otherwise.  It's why I so often say, to the frustration and irritation of law students and new lawyers that I don't believe in The Law, that thing they teach in the law schools that comes with the upper case L.  I believe, of course, in law. That's the thing that bites you on the ass when you think The Law is on your side.

* * *
We have in Ohio executions scheduled, with real, serious execution dates, through September 2020, which, if you're mathematically challenged, is nearly four years from now.  That's 23 men who know when they're supposed to be killed.  They've run through all standard process, both state and federal. Sometimes more than once.  It's pretty much a certainty that some of them (no, I don't know which, nobody does) will not in fact be killed as scheduled, because there's all sorts of things outside standard process that can happen.  But those dates are real.

In the last week, the Supreme Court of Ohio scheduled executions in two more cases:  For November 2020 and March 2021.  Those dates are not serious. The court sets an execution date when it denies direct appeal and affirms a death sentence.  But it's consistently followed the rule that everyone is entitled to at least one full round of state review.  So it grants motions to stay those dates.  Doesn't mean those two men won't ever be executed.  But it won't happen on the current schedule.  Those men each have more years to go.

In fact, trial judges are supposed to set execution dates when they impose death sentences.  The Supreme Court then vacates those dates so it has time to hear and affirm the death sentences and set its own first set of fictitious dates.

* * *
It's not exactly that it's a game. And not exactly that it's dishonest.  It's partly the Law of Rule rather than the Rule of Law.  Partly it's power.  Partly it's fear. And sometimes what's actually supposed to happen does, which gives too many people false expectations about next week.

Really, it's something like a legal fiction.  We pretend, because it's what keeps the system - and for better or worse the system is all we have - operating.

But you do kinda have to wonder.


  1. I had this chat with a young lawprof yesterday. He asked me to look over his law rev article, as he was struggling to make sense of how precedent would apply to new scenarios. I explained the precedent was more about judges forced to write some vagaries to justify their outcome than "rules" to be applied in the future.

    I don't know whether he got it. It certainly didn't fit well with his paradigm of the rule of law.

    1. Isn't it Bennett who liked to say, "I can explain it to you, I can't understand it for you" or something like that?

      We really do need the profs, but it would be nice if more of them spent a bit of time in the real world - or at least hanging out with some folks who do.