July 5th.  The fireworks are over, and our patriotic fervor has faded with the barbecue embers.  After a day off and a day of good feelings, it’s time to return to our real world.

In contrast to yesterday’s post, remembering the insane leap of faith that gave birth to a nation, The Consumerist posted about a problem someone had trying to return a bra to Victoria’s Secret (note the reference from yesterday).  The customer returned with unworn bra, receipt and credit card in hand, but was turned away by a highly trained cashier because the customer lacked a driver’s license.  It seemed that the computer at VS required a driver’s license number, and no other number would do, to process a refund.  The customer has a green card, issued by the government of the US of A, but the cashier refused it.  The customer left, crying and empty handed.

The VS story isn’t the point, however.  The point is the comments in response to the story.  The first bunch reflected my greatest fear about Americans.  They “explained” that non-drivers can obtain a non-driver’s license that will do the job.  They have been so totally indoctrinated to follow the rules that it was inconceivable that they disobey the cashier at Victoria’s Secret.  The only issue in their minds was how better to follow the rules.  Had the cashier told them to jump 3 times and turn around on their left foot, would they have done it?

This knee-jerk response represents a mindset of compliance.  Lemmings would be jealous.  The very idea of “disobeying” the cashier was anethma.  It wasn’t that they wanted the consumer denied a refund, but that the mechanics of getting what is due is through the most obsequious conduct possible. 

This is a critical bit of information in understanding and appreciating why innocent people get convicted.  We, by our nature as lawyers, forget that our response to cashiers telling us what to do is to bristle and refuse.  For the most part, we are mavericks, ill-inclined to stay in line because some twinkie says so.  Indeed, it’s almost an invitation to us to challenge pretend authority, especially when it’s some pimply-faced cashier whose world view is encompassed by a 2 page sheet of the Rules of a summer employer.  We all know this person:  She’s the one who begins a sentence with “Our policy is…”

These are rules of inconsequence.  And still people compulsively comply.  Imagine then the force that propels people to adhere to the rules that our government imposes.  Not compliance upon pain of compulsion or punishment, but compliance because any other response would be unthinkable.  Docile appeasement is not good enough.  It’s closer to the Stockholm Syndrome, where we grow to love the rules, want the rules, enforce the rules ourselves.

So as you argue to a jury of twelve that there is some possibility, no matter how remote, that one individual’s failure to abide the rules that the government tells us required and expected of all good citizens, think about what you’re asking them to do.  Noncompliance in a compliant society is unthinkable.  This may be a greater wrong than the whatever deed your client is accused of.  He must stay in line, even if he’s going to rob the cashier. To do otherwise would be anarchy.

Here’s a little game to play.  The next time you are waiting on line,  listen to the employee tell your fellow waiters what to do.  Count how many people happily comply.  Count how many compliant people thank the employee for telling them what to do.  Add these numbers together and multiply by the age of the employee.  Then divide by 231.  The answer will be either “1776” or “1984”.  It’s uncanny.  Give it a try.