If There Was No Other Way, Part 2

In Part 1, I attempt to offer Judge Kopf’s explanation for why, despite his private pain at being in the position where he would feel compelled to do so, he would send a person he knew to be factually innocent to his death.  My hope is that I’ve been fair in my explanation.  While it’s poor rhetoric to put words into anyone’s mouth, this in particular isn’t the sort of issue where there should be any confusion.

When a criminal defense lawyer asks a judge to suppress evidence, with a defendant against whom the evidence of guilt is overwhelming and, to the extent it can be, conclusive, we exalt adherence to the law over pragmaticism.  We don’t ask that the defendant be cut loose because he deserves it, but because the law demands it.

This is a tough argument to make, as the crime may be heinous, or there are victims who believe that their version of justice will be served.  The victims have done no wrong, are sympathetic, and deserving of the best the law has to offer.  Yet, they have no role to play in our argument, as we rely on the greater glory of the law.

To some extent, this is what appears to motivate Judge Kopf’s explanation of how he can follow that law, perform his function as a judge, and yet order the killing of a person he knows to be innocent.  On its surface, it appears to be the same argument, flipped over.  It’s principled in the sense that a judge’s authority is not his, but derives from the law, which derives from the will of the people.  Sure, the glorious platitudes never seem to pan out as well for the defendants as they do for others in the system, but the system isn’t perfect.  There are even platitudes for that.

But the “law” to which Judge Kopf refers, the law as cavalierly expressed by Justice Scalia, is something of a lie to which we all pay our respects because that’s what we, as lawyers, have been trained to do.  The higher court opinions are capable of describing the facts in a paragraph or two, and apply the law with string cites culminating in a few sentences explaining why nothing written before it applies.  It all sounds so glorious, so comprehensible, so sanitary.

Judge Kopf is a district court judge.  The federal district court is a trial court, where the sausage is made.  Any judge, or anyone else for that matter, who has never experienced a criminal case from arraignment to verdict, would be incapable of understanding that it’s made up of dirty, confusing, contradictory, arbitrary, angry, frustrating, and yes, nasty and brutish, encounters. A million of them, some big and some small. Some capture a judge’s interest, while others disappear with a simple “meh.”

There is nothing in the trenches that happens the way platitudes say they should. This is where it’s decided that innocent people must die.  When it’s later discussed by judges with clean, soft hands, it’s presented as so utterly conclusive and beyond dispute that no reader could possibly discern the fighting in the gutter that happened below. Poof, it all makes perfect sense when you remove the blood and grime from disputed facts. Poof, it all seems so fair when the little details of concealment, gamesmanship and lying cease to exist.

I trust that Judge Kopf, as a former trial lawyer and a trial judge, knows this.  I trust that he remembers this.  I know I think of it every time I play my role in making the sausage.

The judge, as did Justice Scalia, looks to due process, the bottom line of law, as configured by the laws enacted by our elected representatives.  He gives great credit to the choices of the people.  Far more than they deserve, says Jeff Gamso.  I agree with Jeff, but I also understand Judge Kopf’s embrace of the people’s will, even if it’s more benign fiction than reality.

What I cannot accept is that anyone who has spent any time wading in the filth of the trenches can accept the premise that the outcome of this disgusting, unfair, pretense of a system fulfills the dream we call due process.

There are two prongs to due process, procedural and fundamental fairness.  It compels us to provide the mechanism to offer every individual what is called a “full and fair opportunity” to make their case, and constrains us to only credit outcomes that are fundamentally fair.  We fail on both counts. We fail miserably.

It’s not, as ideologues whose understanding of the law is shallow and simplistic, sufficient to create the appearance of fairness, which is necessary as a palliative to the foolish public.  It’s about giving the human being whose life the government seeks to take the right to fight, to use all the weapons in his arsenal.  In contrast to the government, defendants enter the battle unarmed.  This can’t be overstated.  Aside from money, investigators, clout, a thousand exceptions to avoid the harsh consequences of platitudes, the government has one thing far more powerful than anyone realizes: they have the heart of the judiciary.

Judges may like defense lawyers enough, but they will never hold them as dear as the government. In the million decisions that are made between arraignment and verdict, the government will win almost every one, not because they deserve to in that adherence to the law sort of way that Judge Kopf relies upon to justify the death of an innocent person.  No, it’s because the judge doesn’t know what the right decision is, and defaults to the government. Always.

Realizing that the clean, sanitary and glorious exposition of law expressed by circuit and Supreme Court justices bears no real connection to the battle that took place in the gutter of district court, falling back on the platitudes, from due process to democracy, as an explanation for how one can sleep at night knowing that he sent an innocent human being to his death, cannot be justified by principle.

We work in terrible trenches, even if the stench is removed with the perfume of an appellate decision.  Nothing we do happens well enough to satisfy due process, law or the thoughtful concerns of a knowledgeable electorate.  The law doesn’t happen well enough to make it just to execute anyone, no less a person known to be innocent.

All of us who labor in the trenches are unworthy of that level of respect, that the product of our labors is sufficiently sound that it justifies the taking of a human life.  To believe otherwise is unbounded hubris.  We may do so by relying on the platitudes of the law, but we are only fooling ourselves.  There is nothing we do so well in the name of justice that the killing of an innocent person can be excused.



8 thoughts on “If There Was No Other Way, Part 2

  1. Pingback: If There Was No Other Way, Part 1 | Simple Justice

  2. Bob

    The universal truth, indeed: “No, it’s because the judge doesn’t know what the right decision is, and defaults to the government. Always.”

  3. bmaz

    I am no judge, and no one will contemplate that I be one (probably a good thing). But, as you say, “death is different”. I do not, and will not, accept Kopf and Scalia’s absolutism on the final penalty of death.

  4. Mark Draughn

    Maybe I don’t get it. But if the participants in the judicial branch have good reason to believe that a convicted criminal is innocent and yet have no way to avoid executing him, it seems to me that either (a) this is a terrible flaw in the judicial system, or (b) judges who believe this are badly mistaken in their understanding of the judicial system.

    And there’s something else I wonder about: If the judge believes the condemned is innocent, would he tell the executioner? Would he let him know that when he throws the switch to start the injections, he will be responsible for the death of an innocent person? Would the judge explain that he had to do this because nobody wanted to “play games with the law”?

  5. Pingback: Portland Press Herald Contributors | Interesting items: Haitian sex abuse defamation, executing the innocent

  6. Ron

    You mention that the Government wins all or nearly all (you said all but it doesn’t matter) motions at trial, “No, it’s because the judge doesn’t know what the right decision is, and defaults to the government. Always.” Is this just a personal observation perhaps based on experience or are there studies supporting your view?

    1. SHG Post author

      I didn’t say motions, but refer to the million “calls” made throughout a case. Yes, the “always” is a bit of hyperbole, but used to emphasize the point. This is based upon my experience, and I guess the experience of all the other lawyers reading this, since no one has suggested otherwise (and folks love to point out when I’m wrong).

      I am not aware of there being any studies on the subject, nor how there possibly could be a study. It’s simplistic to think that it’s only motions, for example, that present the problem. Motions are the obvious tip of the iceberg, but there are myriad decisions made during the course of a prosecution that have a cumulative impact, and I doubt they would be susceptible to study.

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