Justice and the Law

I'm an admirer of Patrick O'Brian's great series of historical novels set during the time of the Napoleonic wars, featuring as their heroes Captain Jack Aubrey and Dr. Stephen Maturin, members of the Royal Navy.  One of the novels caused me some pain when I read it, due to its depiction of lawyers, judges and the law.  Fans will know I refer to The Reverse of the Medal, in which Aubrey is treated very poorly by the legal system of the time due to the machinations of his various enemies.  I refer specifically to that portion of the novel in which the sophisticated Maturin tries to convince his not very sophisticated friend that he should not expect a just outcome, given the nature of the system and those who are a part of it.

Readers, if not fans, of this blog know that I'm a lawyer and have been one for a long time.  It's not easy for even a jaded practitioner like me to watch, as it were, as the beloved characters in a beloved series of novels by a beloved author excoriate the profession in which I've labored for most of my life.  I don't think an author necessarily believes what his/her characters seem to believe or say they believe, even when those beliefs are stated so definitively, but can't help but feel a bit downcast when I read, and sadly re-read, that passage of the book.

Lawyers and judges are condemned by Maturin for being devoted to the law uber alles, so to speak.  Edward Gibbon is cited as someone who shares this view, and a anecdote involving the great historian is also cited.  Gibbon supposedly challenged a lawyer to acknowledge his client was guilty, only to be told by the lawyer that he could not know whether that was the case until the judge determined his client's guilt.  Gibbon thought this to be a "miserable" example of sophistry, or used words to that effect.  As I interpret the passage, it criticizes lawyers as disregarding justice and morality, and substituting the law in their place.  Thus lawyers do not care about what is right or what is wrong, and do not strive to achieve what is right instead of what is wrong.

It strikes me, however, that it is Gibbon and others who think like him who make a fundamental error in judgment, not lawyers.  Lawyers understand that the law is not what is just, or right, or moral.  Those who criticize the law for being unjust don't understand what the law is, and foolishly--naively--believe that it is what it is not.  But, nonetheless, the law is the law.

To address Gibbon's example:  "Guilt" in the law is not necessarily "guilt" as commonly understood.  In the American system, someone is guilty of a crime if that guilt is established beyond a reasonable doubt.  It happens that those who commit a crime sometimes can't or aren't shown to be guilty of that crime because, for various reasons, proof beyond a reasonable doubt isn't shown, or the jury believes it hasn't been established.  So it's quite correct to say that one doesn't know whether a defendant is guilty in the law until found to be guilty, even if it's true that they did something wrong and committed a crime.

Happily, I don't practice criminal law.  I don't doubt, though, that defense attorneys sometimes know that their clients committed a crime.  Because a lawyer would know that it's quite possible that someone who commits a crime may be acquitted (even if the glove does fit) a lawyer may decline to represent a defendant because he/she feels it would be wrong to do so.  Or they may choose to do so regardless because in our system all are entitled to a defense, and to be treated as innocent until proven guilty.

That, good or bad, is the law.  One might say that the law is what it is for good, sound policy reasons; that it is preferable that such a strong burden of proof is imposed on the state so that it is difficult to prove someone committed a crime even when they did, as the innocent are thereby protected.  One might say otherwise.  Then one is making a judgment about the law, whether it is good or bad.  But one isn't saying that the law defines what is good or bad, or should do so.  That's a critical error.

I think one of the first duties of a lawyer who litigates, who represents a client in the court system, is to explain to a client that what is just, what is right, may result but need not result in a courtroom.   O. W. Holmes is said to have spoken these words to a young lawyer who appeared before him in court:  "This is a court of law, young man, not a court of justice."  The judge could not have given sounder advise to a novice lawyer.

The law is a vast system developed over time to regulate our affairs.  It may sometimes be consistent with morality, it may sometimes be perverted by it or by a particular view of it, as in the case of Prohibition.  But it's not intended to be a system of morality, and we don't respect it for being such a system.  We respect it because it's the law, and it would be foolish to ignore it.

Lawyers and judges are a part of the system.  They know how it works.  They fulfill a particular purpose, and have a particular function.  They may perform that function well or poorly, they may practice morally or may not.  They may be condemned for being immoral, certainly, but only those who confuse morality and the law will maintain that they act immorally by practicing law, and should not do so unless they wish to claim that the entire system of law is immoral, and are prepared to defend that claim.  

I suspect that most won't make that claim, or if they make it won't be able to defend it.  

More Regarding Trials in which "Failure is not an Option"

Now, it seems, our poor President is being advised by his handlers to abandon the idea of trying the 9/11 defendants in District Court in New York, and instead to do so before a military tribunal.   This may mean we will be deprived of the opportunity to demonstrate to the world our respect for the rule of law by holding the trial his confused Attorney General proposed would be one in which "failure is not an option."

One may expect Mr. Obama will be chastized by those on the left if he succumbs to this latest advice, but it will be difficult to condemn him for not holding what could only have been a show trial if Mr. Holder's characterization of the planned proceedings was accurate.  If the result of such a trial is in any case preordained, why not dispense with what could only have been a very expensive display of hypocrisy?  But, perhaps the administration was not aware of the expense which would be involved in holding such a trial in Federal Court--how else account for the fact it was stunned to learn that the locals were not looking forward to footing the enormous bill?  Perhaps it was even unaware that it would appear hypocritical in insisting on a trial which could have only one outcome.

The simple fact is that there is no reasonable basis on which to assume there is even the slightest chance these defendants will be found not guilty.  And therein lies the problem; a very serious problem, I think.

I consider myself a ciceronian, but am not unaccepting of the fact he had many faults.  Anyone familiar with the career of Marcus Tullius Cicero knows that he faced condemnation (primarily after the fact, of course) for putting Roman citizens to death without trial in the case of the famous conspiracy of Catalina.  And there is reason to believe he felt remorse for doing so to the end of his life.

Of course, he did not do so by his own unilateral order.  He was careful to seek and obtain approval of the Senate, and that approval was nearly unanimous.  He was not a Sulla, nor for that matter was he one of the ruthless triumvirs who condemned him to death.  The guilt of those conspirators detained was unquestioned, even admitted.  There was a fear that an army of rebels would descend on Rome if trials were held--there was no time, it was felt, for trial, as there was an immediate danger.

Yet, there was something awful about executing or otherwise punishing the conspirators without trial, which, granted, would have been a very different proceeding then.  And there still is, I believe. 

We are not even considering the possibility of dispensing with a trial, however.  A military tribunal may not provide a trial of the kind available in Federal District Court, but it can provide certain due process protections, and an opportunity to respond to the charges.  Neither the President nor the nation must accept Cicero's burden in this case.  But we are foolish if we feel that the kind of proceeding to be held will make any difference where the result is concerned.  That is something we simply must accept.

Justice, the Law and the Problems Caused by their Association

The commentary I've read regarding the decision of the SCOTUS on the campaign financing law serves to support an opinion I've held for quite some time.  That is, that associating the law with justice is a fundamental error, albeit a common one.

Every practicing lawyer has encountered (and dreads) the client who engages in litigation driven by the belief that they are right, and their opponent wrong, and more often than not evil.  Such clients are usually eager to go to trial, to punish the wrongdoer and achieve the just result they expect from any impartial judge or jury.  Any effort to persuade them that a trial won't determine who is right and who is wrong, and will at best tell them what the law provides for under the circumstances, which may not be the same thing, is futile.

Those of us who are not lawyers naturally tend to think of court decisions as right or wrong.  Those of us who are lawyers often think of them in that way too; but we recognize that what is right and what is wrong is not the issue decided by the court.  What is decided is what the law says about the situation.  This, at least, is the ideal.  Judges are human, and their personal beliefs will often intrude in their decision.  But prior case law, the rule of precedent, the rules of statutory construction, and other rules and aspects of the vast body of the law make it difficult for judges to render decisions based solely on personal preference.  They exist, in part, due to a justifiable desire that judges refrain from imposing their personal preferences (and be "impartial").  In this fashion, decisions rendered are to some extent predictable and uniform, which is deemed desirable in a system developed to regulate social conduct.

Considerartions of what is just, what is right or wrong, often inform legislation, and appropriately so.  When legislators become too concerned with such considerations, however, and vote solely based on their personal moral beliefs, we get bad laws, like Prohibition.

So, I've felt that much of the commentary I've read on the recent decision is too often an expression of outrage, and rather lacking in analysis and understanding of the legal issues involved.  Those who believe the decision, and the majority of the court in this case, corrupt and evil would I think be surprised if they read the decision, and especially the dissents.  They would find that even the dissenters approach the issue very differently than they do, because they are considering the application of the law, not what is right and what is wrong.

The right of free speech is accorded such significance in our law that there is a presumption the right should prevail in most circumstances.  Government may regulate it only to the extent that there exists some compelling interest which requires the regulation.  Those who seek the regulation have the burden of establishing that it is compelling.  Claiming corporations should not have free speech rights is a simplistic response to the issues involved in the decision.  Generally, those who make such an assertion find themselves in something of a bind when asked whether non-profit corporations formed as citizens groups, to promote a particular political and social agenda, should have such rights.  And, since the media largely operates through the corporate form, denying such rights to corporations generally becomes problematic.  When one starts picking and choosing corporations which should and should not have such rights, things get very interesting indeed.

Assessing this decision (and the law generally) solely from the standpoint of what we personally believe is just, therefore, is not particularly useful.  It should be assessed as a legal decision, i.e. based on the law.  The law in this case happens to be the Constitution and a great mass of case law, applied to the campaign finacing law.  If the decision doesn't appropriately analyze or apply the law, the pertinent question is what to do about it.  When that question is realistically addressed, the options are change the Constitution, rewrite the law in question or adopt new laws drafted to avoid the decision, or wait for the decision to be overturned.