Posted on July 31, 2007 in Uncategorized

The closing scene from Alfred Hitchcock's Psycho:

What makes that scene particularly creepy for me is the last fraction of a second of the shot of Norman Bates's face. Just before dissolving to the shot of the car being pulled out of the lake, Hitchcock superimposed an image of a skull over Norman's face. I don't know if I would have seen it, or known what I was seeing, if I weren't looking for it; I might just have been generally creeped-out.

Here is a blog post (from New Mexico appellate Prosecutor Joel Jacobsen's Judging Crimes blog) that had the same effect on me. (Thanks to Kirk Chavez's Issues and Holdings blog for recommending Judging Crimes, which is very well-written). Joel talks about the public perception of lawyers, and argues that "the public perception that lawyers do these kinds of things is nonetheless perfectly accurate. The problem isn't that the public doesn't know what lawyers do, but that it knows all-too-well what some lawyers do."

Here is one of the two examples Joel gives of "these kinds of things" that some lawyers do:

Nor is it true that most lawyers "spend too much time finding technicalities to get criminals released", as an ABA survey found 73% of Americans believe (page 7).

There's that skull floating there - am I the only one who sees it? Joel says that some lawyers spend too much time finding technicalities to get criminals released.

As an appellate prosecutor, I'm sure Joel spends lots of his time looking for "procedural default", the many ways that a defendant can lose his freedom by not jumping through all of the hoops of preserving error. Yet I'm confident that Joel doesn't refer to procedural default as "a technicality." The 73% of Americans who think lawyers spend too much time finding technicalities no doubt think Joel spends just enough (or too little) making criminals' lawyers follow the rules.

"Technicality" is a subjective pejorative. One man's technicality is another man's rule. A technicality is a rule that leads to the wrong result. Those who resent the time we spend "finding technicalities to get criminals released" would likely approve of the time Joel spends "making criminals' lawyers follow the rules." Do prosecutors spend too much time making criminal lawyers follow the rules? No. Do they spend too much time finding technicalities to keep people in jail? Sure.

Polls are a funny thing. The wording of the question is everything; a pollster can load his questions to get any result he wants. In the poll cited by Joel, the ABA asked, "Do you agree or disagree that lawyers spend too much time finding technicalities to get criminals released?" and 73% said they agreed. If they had instead said "Do you agree or disagree that lawyers spend too much time protecting people's freedom?", fewer people would have agreed.Some people see the warrant requirement as a "technicality"; some see the exclusionary rule as a "technicality", some see the requirement of a valid indictment as a "technicality", and some some people undoubtedly see the requirement of proof beyond a reasonable doubt as a "technicality." Criminal law is not about "right and wrong;" it's about rules. When the government doesn't follow all of the rules, it sometimes (not often - courts usually will give the government a free pass) loses.

I have never had the family of a client complain that I was spending too much time finding technicalities to free their loved one. Is it possible that the ABA found 450 randomly-selected Americans, 73% of whom had never had loved ones benefit from the services of a criminal-defense lawyer? Of course not. When they're in that position, they know that what defenders are really doing when they're "finding technicalities to get criminals released" is making the government's lawyers and agents follow all of the rules before determining who the "criminals" are and putting them in jail.

Trying to keep people out of jail is what the market pays us for. If you want us to spend less time trying to keep people out, stop paying the government so much to put people in. Until then, I don't object to lawyers who spend too much time "finding technicalities," but to those who spend too little."Finding technicalities to get criminals released" is how those who don't approve of our existence describe what we do. I'd like to see Joel, who is determined to "engage not just with the expressions of judicial power, but with the assumptions on which those expressions rest," engage with the assumptions on which his post rests.

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