There was fury, outrage and anger. It proved every nutjob’s conspiracy theory true, and the emptiness of the American legal system.  Sharpen your pitchforks and light your torches, as this was the final straw.  But then Ken White, hero of the great unwashed, sucked the air out of the room:

[T]hey are very upset about a Supreme Court of Connecticut decision overturning a rape conviction. The case is Fourtin v. Connecticut. Fourtin was convicted of sexually assaulting a profoundly mentally and physically handicapped woman, a woman who clearly had no capacity to consent. If you read and relied upon “progressive” sources — like the Huffington Post or Think Progress or BoingBoing — you’d conclude that the Supreme Court of Connecticut held that Fourtin wasn’t guilty of rape because the evidence suggested that the victim could have resisted but didn’t.

The problem is that Think Progress, Huffington Post, and BoingBoing are full of shit.

In contrast, Gideon, no friend to injustice, explained that law cuts both ways when it comes to who ends up getting the benefit of a correct application of law, and sometimes it’s not the person we’re rooting for.

As Gideon explains at length here and here, prosecutors made the strange and probably incompetent tactical decision to charge Fourtin under an infrequently used subsection of the Connecticut rape statute, a subsection that only applies to sexual assault of someone who is “physically helpless.” What the Supreme Court of Connecticut found was not that “if a severely handicapped person could resist but doesn’t, its not rape.” 

Fourtin walks and everyone is furious. Fair enough, but we’re furious for the wrong reason, furious with the wrong entity, furious at the wrong law.

Law is not a team sport, though most interested people play it as such.  We cheer when our team wins. We cry when it loses.  We aren’t terribly interested in the “how or why” of the win or loss, but only the outcome.  When we lose, we need to find a reason, something basic and obvious enough to be clear to even the most vapid player on the team.  We fudge the language, we contort the explanation, sometimes we just fabricate phony excuses out of whole cloth to reconcile the outcome we really, really want with the outcome that happened.

History repeated itself, but this time at Reason in a post by Ed Krayewski, where he uncritically regurgitated the “legal experts” from Think Progress, subsequently addressed here.  Hated outcomes make strange bedfellows.  But Ed, angsting over a killer cop walking, reached this conclusion:

Even if Servin is in the clear legally, and it appears that he is, the absence of a conviction is not the same as the absence of culpability. Servin’s recklessness, irrespective of how that word can by lawyered into meaning something else, led to the death of a person who was posing no reasonable threat to Servin. Servin was driving the wrong way down a one way street after getting into an off-duty altercation when he fired over his shoulder and behind himself as if he were re-enacting a cop movie.

No doubt what Servin did was horrible, but what of “the absence of a conviction is not the same as the absence of culpability”?  When it’s someone on “our” team, we emphasize that a defendant is presumed innocent, and remains innocent unless and until convicted. How many times has the other team whined, “but he did it, so he’s guilty, even if he beat the rap.”  We reply, “no, he’s innocent. Every person is innocent until convicted.”  And here is Servin, and it’s killing us.

Now that a judge has let him off on what’s commonly called a “technicality,” Servin wants his job back. 

Ed explained that he put “technicality” in scare quotes for a reason, because his focus isn’t on whether the court’s decision was substantively correct, but because Servin isn’t a guy who should be allowed to have a gun and shield, to be a cop.  While that may be true, that fails to explain the blind leap into the “technicality” hole.

Holding, as a matter of law, that an element of an offense cannot be proven under a specific set of facts may be maddening, but it’s hardly a technicality. To suggest, with or without scare quotes, that elements of crimes can be ignored when the defendant is from the other team cuts both ways.  Most of the time, it’s a non-cop who gets burned by fudging the law, and we cry for judges to adhere to the law no matter how unpleasant the outcome.

The outcome for Servin was, without a doubt, unpleasant.  It was not, however, a technicality. It was fundamental to the sound working of the system. The judge applied the law as we would have demanded had it not been a cop in the defendant’s seat, and unless we are rank hypocrites and this really is just a big team sport, devoid of principle and logic, the judge did what the law compelled him to do. Even though it served to benefit a cop.

As commenter Wrongway wrote:

Fuck You, & your ‘Legal Bullshit’.. this is just plain wrong..
1st cop prosecuted in 15yrs.. should be the first clue..
How about throw out all that crap, & Read the bill of rights.. but no.. can’t do that..
then the govt. & its employees would have to admit to being wrong..

he shot a lady in the back of her head.. and walks.. thanks to the very system that employs him..

We demand the rule of law when it’s our team. We despise the rule of law when it’s their team.  We complain about how “the ends justify the means” when it’s the cops doing it to us, but then we invoke it when it’s us doing it to the cops.  We’re all legal this and legal that when it serves our purposes, but as soon as it doesn’t, we’re “fuck you and your legal bullshit.”

We complain about the police, the government, undermining our rights, and we do exactly the same when the situation is reversed.  We decry law enforcement’s “us v. them” attitude, but when put to the test, our attitude is no better.

Either the law is real for everyone or for no one. You can’t have it both ways.