Posted on August 06, 2007 in Uncategorized

Did any of you think that in this post, Technicalities, compared Joel Jacobsen, the prosecutor author of this post, to Norman Bates, or was it clear that I was comparing him to an unwitting Alfred Hitchcock? See his unimpressive response.

"Some people," he says, "would like to have a criminal justice system that has more to do with right and wrong" rather than the rules. Hey, me too! I would like to have a criminal justice system that never gets the wrong guy. I'd like to have a criminal justice system that treats each person as a unique individual. I'd like to have a criminal justice system that never overpunishes. I could spend a lot more time working on my cars.

But that's not the system we have. The system we have has precious little to do with justice. If justice results from the machinations of the system, it's a happy coincidence. It is a system of rules - not because of those pesky defense lawyers trying to use the rules to their advantage but rather because it evolved under the stewardship of people who recognized that as long as human beings are writing the laws, arresting the accused, prosecuting, and judging, we'll never have the system we might all want.

Legislators, cops, and judges don't have some special justice organ that allows them to know the whole truth, determine what people deserve, and mete out justice. And neither do prosecutors. If we defenders spent less time looking for the ways the prosecutors, judges, cops, and legislators screwed up, Joel's job might be easier, but there would not be any more justice. In fact, there would probably be less.

Joel and 73% of the people surveyed by the ABA think that some lawyers spend too much time "finding technicalities to get criminals released." They might well (it is Joel who conflates the two ideas) think that, if we defenders stopped spending so much time looking for "technicalities", we would have the system we all desire.

The rest of us know better.

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