For Unworthy Defendants, Law Is Just A Technicality

They were two of the most powerful men in New York State. They doled out committee assignments and positions (which means money). No bill made it to the floor without their approval. And then there was the member money, the billions of discretionary dollars handed out to their loyal subjects to spread amongst the voters to show how much they were loved.

In the feudal system of politics, they were the liege lords. You bowed to them, and received their favors, or you didn’t exist. Shelly and Dean. They owned New York until Preet took them down.  They are now appealing their convictions, and their respective judges have allowed them to remain out on appeal. Outrageous?

Ever since they were found guilty last year in separate trials, Mr. Silver, 72, a Manhattan Democrat who was speaker of the State Assembly, and Mr. Skelos, 68, a Long Island Republican who served as the State Senate majority leader, have moved aggressively to stave off the day that they had to begin serving their prison sentences and pay the imposed fines.

In seeking bail pending appeal, they argued that a Supreme Court decision in June that overturned the corruption conviction of former Gov. Bob McDonnell of Virginia, a Republican, had changed the law in a way that increased their chances of winning reversals.

For those who didn’t pay attention, because they weren’t Bob McDonnell, the Supreme Court held that he could not be convicted absent the jury being instructed that the gifts and favors shown a politician was a quid pro quo for the exercise of power.  The problem, as the Court explained, is that everybody wants to curry general favor with powerful people, so showering them with gifts and cash just to be their bestie falls under the category of “politics as usual.” If that was a crime, every politician would be convicted.

So while the cases against Silver and Skelos was different than the case against McDonnell, the jury instruction still applies.  And in their cases, the wrong instruction was given, so the judges have allowed them to remain free pending appeal since there is a “substantial question,” which is legal jargon for a damn good chance of reversal.

But, citing the recent McDonnell decision, she added that there was a “substantial question” whether the court’s instructions to the jury, which defined official action, were in error, and if so, whether that error was harmless.

So were there cheers over this decision, because we are a nation of laws, not men?

The ruling drew varied reactions in the legal community, where the men’s efforts to obtain bail were being watched with interest by lawyers with no involvement in the cases. Jennifer G. Rodgers, the executive director of the Center for the Advancement of Public Integrity at Columbia Law School and a former federal prosecutor, said she believed that all three men would eventually lose their appeals.

“The problem from the public’s perspective,” she said, “is that, whether or not the judges’ bail decisions were technically legally correct, leaving Silver and Skelos free feeds into the notion that these corrupt officials continue to succeed in working the system to their advantage.”

That’s right, the exec director of the Columbia Law School Center for whatever said that “whether or not the judge’s bail decisions were technically legally correct” should not matter.  What does matter is the “public’s perspective,” not the law, and the public’s perspective is that “corrupt officials” win while they lose.

Burn the witches!

And then, of course, there is the critical addition that this same prawf doesn’t “believe” the three men will win.* Because sensitive reasons.

That two of the most powerful men in New York are out while tons of others are not is, generically, an optics problem.  One can chalk it up to the fact that they have far better lawyers than most, who can put in far more work since they’re being far better paid than most. One can chalk it up to the judges’ prejudice, though it’s pretty darn hard to imagine that Judge Kimba Wood had particularly warm feelings for Dean Skelos. Maybe even the old, rich, white guy patriarchy explanation, which is always available when the people in question are old, rich white guys.

Or, one can chalk it up to the fact that the “decisions were technically legally correct.”  You know, “technically,” as in the stuff that keeps beautifully designed bridges from falling down and crushing you.

There was once a time when technically legally correct was considered a good thing. We wanted judges to reach technically legally correct decisions. That was the goal. But somewhere along the road, the word “technically” took on a taint, as if it was some trick played on the groundlings to deprive them of their feelz of justice because of some technicality. You know, like constitutional rights, which only exist to keep the 99% down and the 1% in power. And who was more 1% than Silver and Skelos?

The flip side is that if you don’t like the law, work to change it. Chances are pretty good that whatever you think the law should be in your sushi-for-brains imagination is crap and will end up being far worse than whatever you think is wrong now, but that’s only because law is really hard to craft and the notion of recreating law to fix an optics problem under one peculiar circumstance is kinda stupid. But hey, this is a democracy, so vote into office whichever candidate suits your feelz. That’s your right.

What is not your right, or Jennifer Rodgers’ for that matter, is to try to make people stupider by conceding that the judges’ decisions were legally correct while fooling the village idiots by throwing in the word “technically” as if that’s a bad thing.

And as bad as this ubiquitous contortion of thought may be, it’s exacerbated by the fact that it’s being committed by someone from Columbia Law School, who will trade her academic credentials to spew advocacy, and who gets a paycheck to teach kids how to be lawyers someday. Well, technically, anyway.

*The third man is Dean Skelos’ son, who was convicted with him.

5 thoughts on “For Unworthy Defendants, Law Is Just A Technicality

  1. Marc Whipple

    I remember a SCOTUS judge being interviewed on NPR, I can’t remember which one but he was known for being very polite and soft-spoken. At one point the reporter referred to horrible criminals getting off on “technicalities.” The justice stopped him and in a firm, nearly-angry voice said, “They are NOT technicalities. They are basic Constitutional protections fundamental to our system of justice.” The reporter beat a hasty retreat, figuratively speaking.

    I wish I could put him and Director Rodgers in a room together and watch what happened. Or pretty much any current prominent legal commentator.

      1. Scott Jacobs

        Yes it was Brennan, but it was Bill Moyers doing the interview.

        Totenberg wouldn’t, I don’t believe, do something as foolish as call them “technicalities.”

  2. Rick Horowitz

    “You know, ‘technically,’ as in the stuff that keeps beautifully designed bridges from falling down and crushing you.”

    I have to say that is simply the pithiest, most perfect encapsulation of legal “technicalities” I have ever seen.

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