One of our favorite lawyer expressions is “sending a message,” used to explain why something that is otherwise inexplicable happened.  It is beloved by prosecutors and judges, who “send messages” about how people shouldn’t commit crimes by seeking or imposing incredible sentences.  Defense lawyers like to use it as well, but we don’t get nearly as many opportunities.

It is axiomatic that communication is comprised of two parts, sending and receiving.  Lawyers focus on the sending piece, where we send messages to “society” that some conduct won’t be tolerated.  What we fail to consider is the messages received, the ones that real people pick up on as a consequence of our legal system. 

Message sent are almost invariably announced as such.  When a judge imposes a sentence of more than 236 years in prison (without possibility of parole), she wants everyone to know that she does so to send a message, and expressly says as much, lest anyone think she’s merely bad at math or unfamiliar with the normal lifespan of human beings.  The message is, do the crime and you will be locked away for the rest of your life.  The intent of the message is general deterrence.

The reason for the “message sent” strategy is that those who indulge in it figure that people need a stark reminder that criminal conduct is wrong, and that they shouldn’t do it.  But, of course, the fact that certain conduct is criminal in the first place is intended to send that message.  It would be one thing if the consequence for certain conduct, say murder, was a “slap on the wrist,” a reference to a punishment that is inadequate to deter a person from committing the crime.  By balancing the desire to commit the crime with the punishment imposed (if one gets caught, a separate and more important factor, but not one to be discussed today), rational people inclined to engage in criminal conduct might willingly take the punishment in exchange for committing the crime.

But is the potential “ordinary” punishment for a murder, say a maximum of 25 years to life in prison in New York, insufficient to deter someone from doing it?  Many would answer yes, since murders keep happening.  But if 25 to life is inadequate to deter a murder, would 236 years change the potential murderer’s mind?  The obvious answer is no.  The length of punishment becomes just more of the same.  If life won’t do it, will a two lives in prison?  Or 5 lives?  It’s just silly.

Now to the point of this post.  Criminal defense lawyers learn from our clients the messages that they receive from our legal system and government.  I also receive a surprising number of emails as a result of this blawg from people who want to express their understanding of the law and the system.  It’s not a pretty picture.

To the extent that “messages sent” become “messages received,” the message is that the system is harsh and irrational.  Impose a sentence of 236 years, which even the dumbest criminal recognizes to extend beyond a human life, and they find it laughable.  While the judge believes she is being “tough”, the message is that she’s a nitwit.  Nobody lives that long, they realize.  “Doesn’t the stupid judge know this?” 

This, of course, is not the message intended, but it’s the message received.  Rather than strike fear in the hearts of potential perpetrators, it reduces the sentence to a farce. 

But the “message received” side of the equation gets worse.  More often, the “message received” comes when no message is sent, but when the legal system simply does what it normally does.  For example, in the case of Marty Tankleff, who spend 17 years in prison and was subsequently released after an appellate court determined that there was sufficient evidence to show that his conviction for the murder of his parents was based upon unreliable and inadequate evidence, the message received was loud and clear:  The system is unfair, unreliable and unacceptable.  If an appellate court does not believe the conclusions of a jury, and 17 years later, a trial judge, when how can the public trust a judge to properly and adequately do his job?

For lawyers, we look at the release and dismissal of charges against Tankleff as a success of the legal system.  Marty won.  He got out.  The indictment was dismissed.  Aren’t we wonderful!  But this is an example of thinking like a lawyer, which Anne Reed warns us not to do, and David Giacalone reminds us does not require us to think like an ass.

To the non-lawyer world, Tankleff stands for the failure of the legal system.  They see 17 years in prison for an unproven crime.  They see a one-in-a-million chance at reversal almost two decades later.  They see the wrong person convicted, the system trying desperately to defend the conviction despite the fact that it flies in the face of all the fine rhetoric that we use to promote the system, and proof that the system failed at every point along the way, until this one lucky kid finally got a fair shake.

A more subtle, but far more pervasive, message received comes from the our system’s inability to discern truth from lies.  We pretend that a trial provides a magic way to ferret out lies and reveal the truth.  But we are only kidding ourselves.  A situation occurs on the street.  Present are a couple of cops and a person, later to be called the perpetrator and then the defendant.  No one, other than these three people, know what actually happened on the street.  But these three people do know, and their reality will not be altered by any fact-finding later in a courtroom, no matter how well our systematic protections are applied.

Initially, the two cops provide a written description of the person’s (now called the “perp”) conduct.  It falls somewhere along the spectrum of truthfulness and expediency, assuming that the perp in fact committed a crime and the cops’ purpose is to get him prosecuted for it.  But the details are changed, whether to eliminate some impropriety along the way, or to embellish the wrongdoing to assure a conviction or enhance leverage.  Assuming it’s not entirely false, it’s not entirely true either.

The message received is that the government, the cops, the system, promotes lying to achieve it’s societally beneficial goals.  The message received is that lying, conduct that is malum in se, is an accepted and acceptable weapon in the conflict between cops and other persons.  When the perps turn into defendants, they tell their lawyers about this.  Our response is, “this is how it happens.”

This is a terrible response.  It’s true, but worthless to the defendant.  While words like “truth” and “justice” are uttered ad naseum, the message received is that the best liar prevails, and that the government’s lies are happily accepted by the judge as truth, even though the defendant knows them to be lies.  This is the problematic part:  No matter how deeply the judge believes the cops to be telling the truth, the defendant still knows that the cops are lying.  The system cannot change this. 

And eventually the cause comes on for trial.  Witnesses swear to God, then lie.  The judge and jury nod their head knowingly, as one cop tells a  story and the other backs him up.  It sounds so normal, so factual.  The prosecutor argues that the cops have no reason to lie, to frame an innocent man.  The arguments are compelling.  Even the defendant, listening to the testimony, recognizes that it sounds completely plausible.&
nbsp; Except that it’s untrue, whether in whole or part.

The message received, by the defendant, by his family, by his friends, is that it is a system built on lies, deception and ignorance.  As the judge and jury decide with certainty, beyond a reasonable doubt, that a lie is true, the message received is that there is no such thing as justice, and that obedience to the law is sham.  If there was any value to obedience to the law, then cops would not swear to God and then lie.  If there was any integrity to the system of law, then judges wouldn’t blindly accept the cops’ word as truth.

Defendants have asked me, far more times than I can recall, “how can the cops lie?”  I’ve struggled for years to come up with an answer that will both explain the phenomenon as well as instill a belief that our system is not inherently rotten and that it is worthwhile to be honest and obey the law.  But the message received is that the system is an unfair game, and that the winner of the game is the one who can lie and deceive better than the other side. 

This has never been the message intended to be sent, but this is the message received.