Precedent Is As Precedent Does

Part VI of the continuing “is-does” series.

Jeff Gamso is a fine writer and no doubt a fine lawyer.  But we have our disagreements.  He thinks you can argue with those simple creatures we call judges and they’ll listen despite their brutish sycophancy to the powers that gave them their positions.  I think not, at least not until they can feel some heat from the other side.  Thus, this blog.

Jeff cites a case in favor of his position and makes his argument well, as usual.  It’s the Supreme Court of Iowa, and they have ruled – putting their state in the minority – that “inconsistent verdicts” by juries will not stand.

Bravo.  A victory for logic, reason, the constitution I suppose, and the disfavored litigant – a criminal defendant.  All of this is rare.

Which tells you something:  the first three of those should ordinarily govern; but what should ordinarily govern has been reduced to an anecdote, a freak occurrence so rare that we write about it on blogs.  The public, largely and silently disgusted if they are not completely disinterested – unless, of course some “criminal” “gets off” –  stopped caring a long time ago.

But to continue.  The thing that has Jeff excited is that this is the Iowa Supreme Court – the high court, the precedent setter.  What they say is the “law” and the lower courts are bound to follow suit.

See, now if Jeff is reading this he knows where this is going.  Every real lawyer does.

I’m glad someone else shares my low opinion of the “jurisprudence” of Oliver Wendell Holmes.  He wrote the book on why inconsistent verdicts are no problem.  He OK’d a forced sterilization because, well, “…three generations of imbeciles is enough.”  I won’t judge the man – he had some traumatic experiences in the Civil War, after all – but as a lawyer and a judge on the Supreme Court he was a real negative.  Probably nobody would have paid much attention, but I’ve got to admit that name…I mean how many names are there that you never forget after hearing it only once?

Anyway, forget Holmes.  The point is, long before the 4th amendment rulings of the US Supreme Court became a dead letter in theory, they had become a dead letter in practice.  One could say they were dead on arrival:  they were never really followed in the lower courts, even at the beginning.  Nobody likes the defendant to “get off on a technicality”, and it never really happened in the vast majority of cases where it should have.

There are many, many other examples, but I don’t need to write a 10,000 word post or a law review article or a book.  The point is, the Iowa Supreme Court has made a significant ruling.  So what?

You know what the net result in the trial court would have to be in the usual case, where the so-called “predicate offense” is the far lesser crime, at least in terms of potential prison time?  The defendant would have to get off completely:  a conviction on the higher offense would be impossible, because you’d need a conviction on the lower offense, which you could never get because it would be barred by double jeopardy.  So after a jury returns a verdict of “guilty” on the most significant charge, the trial judge will have to overrule the jury and enter a judgment of acquittal.

Can you see your average trial judge doing that, with the DA, the police, the media all glaring at him, while he whimpers that “Gee, the Supreme Court of Iowa says I have to.”  Come on, Jeff.

In the Iowa Supreme Court case, the defendant had other convictions that were not challenged.  So even that court, from its high remove from the proceedings, didn’t set anyone free.  We’ll see if any lower court judge follows the precedent when the defendant would walk completely.  Maybe this will be different from all the other “precedents” that favor criminal defendants, but there’s no reason to think so.  They’ll give their “reasons”, of course, or maybe not:  they often just don’t say anything when the issue is inconvenient.  No one calls them on it, except the defendant’s lawyer sometimes, and you know, who cares about that pathetic moron?

Now I could say that this is all the fault of judges as a group, and in a way it is.  But I would also say that if, after observing this same pattern over and over the defense bar simply continues to make arguments based on precedent, then they share responsibility for this state of affairs, too.

Lawyers have to learn a lesson that should be obvious:  in our system of “justice”, you might get heard but only if you cross a certain minimum threshold of power, that threshold being that you are a tangible, cognizable threat to do some damage if a judge utterly screws you over.  I don’t mean physical damage, I mean career damage.

The DA’s, the police, the media and the mob have no problem crossing that threshold; CDL’s do.  Plaintiff’s lawyers do.

Put another way, when you are armed with the Iowa Supreme Court precedent but the DA and the police and the media and the mob are glaring at the judge screaming for your client’s blood and you know, you just know that the precedent will go down the tubes and they’re going to take your client into custody when he is entitled to be set free, you can glare at the judge, too, as if to say:  you break the law and it’s going to cost you.  We’re going to strike until you are driven from the bench.  The other side is a threat to your job.  So are we.  Why don’t you just follow the law?

What’s that definition of insanity again, Jeff?  Not that I’m accusing or anything.

It’s hard for a civilized man to think like a barbarian, but it’s impossible for a barbarian to think like a civilized man.  So you have an advantage.  But you have to get into a position to exploit it, first.


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Filed under Judicial lying/cheating, Striking lawyers

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