Three Things You’re Never Supposed to Admit About Law

Ah, Law. It is the “universal solvent” of studious disciplines which mixes with every other discipline in some way. It is the very foundation on which society is based. It is our collective conscience made flesh to right wrongs and uphold justice. It is the field in which we confront our greatest moral and political questions.

What a load of horse sh*t.

If there’s one thing lawyers and law students love to do, it’s find ways to aggrandize their chosen field. Law schools are only too happy to play into these delusions (waxing eloquent about creating “leaders for a just and humane world”) in order to boost enrollment and ensure that the school pull in its share of those sweet, sweet tuition dollars. Desperate to justify their six-figure student loan debt, graduating law students perpetuate this twaddle and established practitioners soothe their guilt over high fees by repeating the same mantras. What most of us never discuss, however, are the dirty little truths about this all-saving “Law” we’re so devoted to.

  1. Supreme Courts exist to find an answer, not the answer. This is one of those things which should be obvious but often isn’t. Supreme Courts (and, consequently, Supreme Court judges) get elevated within the legal mythos to a position akin to Plato’s philosopher kings. When a Supreme Court hands down a ruling, that’s what the law is; the Court has plumbed the vast depths of knowledge and discerned the true nature of the legal reality. More often they’re simply scraping the bottom of the barrel. Yes, Supreme Courts have the final say, after all, someone has to. But just because our system gives them the last word doesn’t mean they’re right, it just means that we have to abide by their decision. True, society can’t work without the buck stopping somewhere, but let’s not always assume that the final answer is some infallible message from on high. Unless, of course, it’s the answer we wanted to get.
  2. Of course judges are biased, they’re human for chrissakes. There’s a term for a person who has no emotion and who bases all decisions on pure logic. Sociopath. For some reason, however, we have decided that judges really ought not to be sociopaths (please, no Antonin Scalia jokes, that would be too easy). The obvious result of this is that judges are always going to have some level of personal bias in play and while we can screen for the big things with recusal petitions and the like, there are always going to be smaller things in play.  This is why it’s generally best not to look like the person who ran over the judge’s dog last Thursday. Regardless, the profession insists on trying to sell the idea that judges are wholly impartial on all matters. How about we give lay people some credit and let this delusion go, huh?
  3. The probabilities are staggeringly in support of the theory that if a criminal case makes it to trial, the accused is guilty. No matter how hard we work to structure things differently, win records are always going to be important for prosecutors. One of the consequences of this is that prosecutors tend to be very meticulous about which cases they’re willing to press and which cases they’re going to push to plead out. For a criminal case to get to trial the prosecution has to be pretty damn sure that they’ve got things sorted out. Yes mistakes happen and yes people get maliciously prosecuted and you’re damn right we still need trials; the whole point of our system is that it’s better for guilty people to go free than for innocent people to go to jail and that means it’s a good thing that juries tend not to believe this particular dirty truth. But that doesn’t change the fact that it’s pretty far from a 50/50 chance that a accused who makes it to trial is guilty, and not in a good way for the accused.

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The Northwest 3L spent 6 years in the "real world" cultivating cynicism and a dim view of humanity in the telecom and software consulting industries before deciding that the best way to deal with having zero debt in a down economy was to load up on student loans and truck on off to law school. Asked for a description, his friends replied, "says inappropriate things." Grainy, out-of-focus film footage suggests that he attends law school somewhere in the Pacific Northwest.

6 Comments

  1. Andrew

    July 3, 2012 at 9:23 am

    “The probabilities are staggeringly in support of the theory that if a criminal case makes it to trial, the accused is guilty.”

    What horseshit.

    First of all, the “probabilities” speak of appears to be simply based on what you have sucked out of your ass, rather than any qualitative study.

    Secondly, your “analysis” assumes that prosecutor’s main concern is whether the accused actually did it or not, when anyone who practices in criminal law knows that the main concern is whether the prosecutor can convince a jury, which I think you know is far from the same thing.

    Moreover, you forget that a huge percentage of people charged with an offence plead guilty (obviously the numbers differ between jurisdictions). But the matters that actually go to a defended trial – well, that’s an entirely different story.

    I’m not aware that anyone thinks that the numbers are “50/50″ – but to suggest that the numbers are “staggeringly” in favour of guilt – well, that’s just stupid.

    Oh, look – you worked in the “telecom and software consulting industries” – no wonder you know shit about criminal law. Why don’t you stick to what you actually know about?

    • Elise

      July 3, 2012 at 5:33 pm

      Do you (or “FreddieKrueger” for that matter) work in criminal law? I think it unlikely based on your comments. I work in criminal law and your comments show exactly the type of ignorance that this column was meant to dispel. It’s a prosecutor’s duty to see that justice is done (not to get convictions) and with some exceptions they do really believe that and work toward that. It’s a defense attorney’s job to hold the government accountable and make sure everyone has the opportunity to have a fair trial. For the most part, they take that responsibility seriously. Both sides are necessary; neither should be painted as the bad guy.

      All the guilty ones do not plead out and it is not the innocent who necessarily decide to go to trial, it’s the ones who have nothing to lose (they’re going to get a life sentence either way because of sentencing guidelines) or believe they won’t be convicted (sometimes because there isn’t enough evidence for “beyond a reasonable doubt,” but more often because they believe that they can talk their way out of it). Most of the time, someone who is found “not guilty” gets that acquittal not because they didn’t do something morally reprehensible but because their behavior didn’t meet the narrow statute.

      Sometimes someone who’s innocent gets convicted but there’s a reason those stories stand out in your mind: they’re unusual cases. It’s a great idea that people are innocent until proven guilty and we should hold ourselves to it, but don’t kid yourself, “staggeringly” is a great word.

      • SharpDresser

        July 5, 2012 at 1:09 pm

        #Winning#

  2. FreddieKrueger

    July 3, 2012 at 11:38 am

    Wrong. Dead bleeping wrong – all the guilty ones plea out. Yes, a lot of defendants are guilty but the innocent defendant doesn’t have a choice but to go to trial. Putting aside the celebrity/athlete/high-profile scumbag (I’m looking at you, Sandusky) the defendants that go to trial might well be innocent.

  3. SharpDresser

    July 3, 2012 at 4:18 pm

    @Andrew- Good refutation, but it’s an opinion article. Calm down and maybe someone would take your “arguments” seriously as well.

    @FreddiKrueger- Sandusky is innocent…I mean really, who would ever touch a ginger boy?

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