Why Make Losing Arguments?

I may be off a bit on the timing, but it was soon after the Supreme Court held the federal Sentencing Guidelines constitutional that I argued in the Southern District of New York that the crack/powder cocaine sentencing disparity — then 100 to 1 — was arbitrary and capricious.  Back then, crack was the stuff of myths, a super powerful, incredibly addictive drug that made people go crazy and violent. Powdered coke, on the other hand, made people attractive at Studio 54.

When I first learned of crack, I had no clue what it was. I had a client explain it to me, and then run me through the way it was made.  In essence, it was the cocaine version of a red wine reduction sauce, coke mixed with a filler like baby laxative, then cooked down to a more concentrated rock, which could be smoked. The delivery method was different, but it was still just coke.

So I challenged the crack guidelines, believing they made no sense at all and were just the by-product of media hysteria surrounding the drug. The judge didn’t just deny my motion, but ridiculed me for having made it. I was young then, and assumed that my argument was horribly wrong, because the judge said so. I let it go.  Ten years later, others started making the same noise. Twenty years later, the noise became deafening. Now, the disparity is largely gone as being arbitrary and, well, wrong.

But I let it go.  I have long regretted my mistake.

While listening to other speakers at the Texas Criminal Defense Lawyers Association CLE this week, it occurred to me that so many truly good points were being made that would, if tried, fail miserably.  At least for now.  A drug dog trainer explained to the group that the handler should never be allowed to testify as to the dog’s effectiveness, as he was clearly biased in favor of the excellent work the dog, and he, did.  He noted the Rosenthal expectancy effect, a great point.

But the reality is that few judges, if any, would preclude a handler from such testimony. The handler is there, on the stand, testifying anyway. He knows his dog, and he’s qualified to speak from experience. The judge won’t require the prosecution to call in a separate witness to testify about the effectiveness of the handler’s dog when the handler is already there. It’s time consuming, a burden and unnecessary in the court’s eyes. The likely response is, “counselor, if you think his testimony is biased, then bring it out on cross and make your argument. Proceed.”

The same thoughts occur to me whenever someone speaks to jury selection, where we are told the 12 questions that must be asked of every potential juror.  They may be terrific questions, but if the judge gives us a total of 15 minutes to question 16 jurors in the box, you will be lucky to get 5 question to the entire panel done.

Lawyer: But your honor, 15 minutes isn’t sufficient time for me to conduct voir dire.

Judge:  Well, it’s now down to 14. You probably should move forward, counselor.

Lawyer: But Judge, my client is entitled to select a jury of his peers, and that requires time to ask questions of each juror.

Judge: 12 minutes left.

Lawyer: But, but, but…

Judge: Fine. I’ll do it for you. Can all of you be fair to the defendant and follow my instructions on the law?

(Jurors all nod their head in unison.)

Judge: There you go, counselor. Any strikes?

So why do we bother?  As part of my talk, I implored the lawyers in the room to raise arguments about computer searches that, at this point in time, are likely to fail.  I didn’t pretend otherwise, and in fact said that they are likely to fail. But they still ought to be made.  In my view, they must be made, because the alternative is unthinkable.  This makes little sense on its surface, but it’s not without purpose.

First, it’s possible, if not probable, that an argument will catch the interest of a judge, who actually spends a few moments thinking about the point, pondering whether you just might be right, and, if the stars align, will grant the motion. As Judy Tenuta used to say, it can happen.

But second, it’s unlikely to happen the first time you do so, or the tenth time you do so.  But each time the point is made and driven home, it moves the needle just a fraction. The judges become increasingly familiar with the argument, with the idea that maybe it’s not completely off the wall to allow the defense to put an expert on the stand to explain how false confessions happen, or how eyewitness IDs aren’t as reliable as everyone thinks they are, even when the witness emphatically proclaims, “I will never forget that face.”

Each time an argument is made, it pushes the envelope just that tiny bit more to the point where we can do to judges what the SDNY judge did to me as a young lawyer: make them doubt their accepted wisdom and question whether you may have a sound point. It starts with a crack, and the crack starts with an argument that challenges the way things are done.

If making the losing argument will somehow serve as a tactical detriment to the client, then you pass on it. The client comes first, and there are times when the dynamic of the case, whether because it detracts from winning arguments, the judge has a short attention span or is particularly hostile, that the time isn’t right to toss a loser into the mix. But when it may work, or it won’t hurt, then raising arguments that will likely fail will serve a greater purpose of familiarizing judges to the point that needs making.

And, you never know when that first crack will happen, or whether you will be the one whose argument is the straw that breaks the camel’s back and changes the law for everyone.  If you pass on the novel arguments, however, you are guaranteed that it won’t happen. And maybe it won’t anyway, but as long as it doesn’t hurt your client, it won’t hurt you to try.

The behemoth of the law doesn’t change easily, but it does change. Do your part to be the cause of positive change.  The worst that can happen is a judge will ridicule you, and you won’t be the first.

6 thoughts on “Why Make Losing Arguments?

  1. John Barleycorn

    Bravo, the fans in the unreserved upper deck seats in right field applaud the curmudgeon as he spits a cheerful cheekful of leaf chewing tobacco right smack in the center of the foul line chalk at the foot of an umpire on his trot back to the dugout between innings. Then they break into the reduction dance while chanting “what are you waiting for” to the bullpen, and order more beers.

  2. Marc J. Randazza

    This is why I continue to push against Section 2(a) denials of trademark registrations. Hardly the noble stuff of criminal defense, that I will readily admit. But, thank you for summing up the theory perfectly.

  3. Bill

    The more I read, the more I’m astounded that any defendant/CDL ever wins a case b/c the deck is so stacked against a defendant. You had a post about law and big data, but I swear that’s going to be one of the only venues that can get the average joe to see how bad things are. I’m speculating but I have to guess that few if any dog handlers have ever testified against how effective their dogs are. A statistical analysis showing that it never happens (assuming the study ever saw the light of day media wise) would open some eyes – I had no idea that was the case. At the risk of being a kiss a55, the whole post is spot on and it applies outside of law. Thank God there are people that share your beliefs and don’t hold back for fear of ridicule or rebuke.

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