It was a reasonable question:

Maybe it’s just me because I am working on my first federal criminal appeal for a defendant, but is anyone else alarmed at the ease by which the government can get into evidence incriminating material relating to uncharged crimes and bad acts under F. R. Crim. Pro 404(b)? I mean, everything and the kitchen sink can come in to prove “intent” as long as it doesn’t touch character? I’m not an expert like some of you here, but my research so far reveals that admission of 404(b) material as evidence is never reversed (if you have a case, let me know . . . ) and there is no question in my mind that the jury will have no trouble hearing that bell ringing in every case.

It seems that the Federal Rules present an uphill battle, barefoot, in the snow, for a defendant on appeal and that the constitutional guarantee of a fair trial may be undermined by the Rules.

The sort of question with accompanying observation one sees with some regularity on criminal defense listserv, reflecting the dismay of the rookie that years of studying the law has failed miserably to prepare her for the harsh reality.  So many fine platitudes turn out to be empty, meaningless words.

The problem isn’t that there is anything terribly unusual about the either the question or the epiphany, but that it comes from Deborah Borman, an assistant professor of law at Northwestern Law School, and was posted at PrawfsBlawg.  Don’t be fooled by her attractive, youthful appearance.  She didn’t pop out of law school yesterday.

Prior to her appointment at Northwestern, Professor Borman served as a career clerk for a Justice of the Illinois Appellate Court from 1991-2008, drafting more than 300 opinions in all areas of civil and criminal law, and as an Illinois Assistant Attorney General in the Consumer Fraud Bureau. Ms. Borman is a Panel Contributing Editor to the 9th Edition of Black’s Law Dictionary as well as an Assistant Editor of the Journal of the Legal Writing Institute.

Borman spent 17 years of her career as a clerk for a Justice of the Illinois Appellate Court.  According to her CV, she “researched and drafted over 300 published opinions and unpublished orders addressing civil and criminal issues.” She is now charged with training the next generation of lawyers at Northwestern, having previously been an adjunct at John Marshall and DePaul law schools.

After all that, she vents the common frustration,

It seems that the Federal Rules present an uphill battle, barefoot, in the snow, for a defendant on appeal and that the constitutional guarantee of a fair trial may be undermined by the Rules.

Putting aside the unanswerable question of why, now, she’s doing her first federal criminal appeal and what qualifications she possesses to take a person’s life in her hands, it is unfathomable that she spent 17 years writing decisions that brought tears of joy and sorrow to others, that made or ruined lives, without ever having realized that the playing field was a little out of level.

It’s wonderful that Borman has come to the realization that Rule 404(b) can be unbearably unfair, though it appears that she may still believe that the rest of the criminal law is working swimmingly well.  Until she has to do her second, then third, appeal, where she will learn that it’s not just 404(b).  Given enough time and appeals, she may eventually come to the grander epiphany that the defendant is always fighting an uphill battle, barefoot and in the snow.  Hopefully she will get there eventually.

Hidden within her growth spurt, however, is a lesson for those of us who write briefs and argue causes before appellate courts, where we want to believe that whoever is in the backroom researching and drafting has at least a little idea of the reality in the trenches.  We presume they aren’t so totally isolated, disconnected from reality, that they actually believe the black letter law dressed up in grand platitudes, and take comfort in their decisions knowing that the law is a wondrous thing, the best it can be.

Having bent an elbow or two with people whose careers were spent making decisions, or helping others to make decisions, I’ve been told that they get it, they know what really happens in the trenches.  Some do, as they were in the trenches themselves.  Others have to be taken on faith, since the only basis to believe them is their own word.  We hope they aren’t lying to themselves and us.

After 22 years of transition from law student to lawyer, Deborah Borman has come to the realization that at least one rule of criminal procedure isn’t nearly as fair in practice as it would appear from the caselaw.  That’s good.  It would have been a whole lot better, though, had she reached this plateau about 300 decisions earlier.   Still, better to learn this life lesson later than not at all.