Hello, and welcome to 'Justice in Action: Leaves from a Trial Lawyer's Notebook'.
I spent 40 years in the practice of law - as a public defender, then an intermission (for more than a decade) as an entrepreneurial lawyer, followed by a return to the civil service as a prosecutor for the last half of my career. Most of that time was spent as a trial lawyer. I did a couple of stints in the appellate assignment at the Santa Clara County Public Defender's Office (I was Rose Bird's successor the first time around) and handled a death penalty appeal while I was in private practice. But it was the criminal trial, and the criminal trial experience, that shaped my career, life and perspective.
It is that trial lawyer's perspective that I intend to share in this blog, both on big issues and small, the theoretical and the practical. There's no question that theoretical issues abound here - how does society decide what acts should be identified as a crime? (In most Anglo-American legal systems, receiving stolen property is a crime, a type of theft. Asian cultures have more of a 'finders-keepers' philosophy - and the notion of intellectual property is close to non-existent.) How do we punish those acts? For what reason do we punish? The rationale makes a lot of difference to the type of sanction we choose.
The secondary questions aren't much smaller. How do we enforce criminal law? What is the appropriate balance between public safety and personal civil rights? How do we react to police activity that disturbs that balance?
There are no easy answers to any of these, or the countless other policy issues. I was educated philosophically, and considered sedriously a career in academic philosophy. (For the record, I am a BA Pomona College, 1968, and JD, Boalt Hall, 1971. I'm also a CPA - or would be, in many states beside California - and a Certified Specialist in Tax back in the day. Useful stuff during the entrepreurial years. Member of the California Bar since 1972.) I tend to think about these matters from first principles. But underlying - actually, undercutting - all this theorizing is a trial lawyer's recognition of how difficult all this is in practice, and how far in actual practice the nitty-gritty, the personal and the personalities, are from the conceptualizations of the ivory tower.
Doing justice isn't easy, though it surely seems that way in crime dramas and after-the-fact critiques. It's actually difficult to the point of impossibility. Leave the moral aspect to one side for a moment. Simply doing history is incredibly hard - determing that the offense actually occurred, identifying the offender, determining the degree of the offense, separating the relevant facts from the larger clutter of history - and doing all this while the moral urgency that makes the incident worthy of classification as a crime flies disappears into time. It would be nice to think of the Big Questions as looming in the background like the Alps or the Rockies, while all this whirligig of fact goes on in front. But that's not the case. All the questions, big and little, are part of the ongoing chaos. Add to the fact that, at least in the United States, the public insists on (a) a disposition of the matter that reflects all the individual characteristics of the actors, and also (b) equal treatment under the law. Think about what that implies for a second.
The result of all this is that really precise ideal case results are literally impossible, even in the simplest matters. So why do we do it? I think, because - like democracy - everything else is worse. The alternative to attempting to do justice on principle is the law of the jungle, might makes right, or whatever is best for the State. That's been the dismal reality throughout most of human bistory. Expressed in those terms, the realistic goal of the criminal justice system isn't perfect justice - it's good faith. We cannot expect perfect outcomes in any case, but we can expect that everyone involved in the system is going to do his or her best to achieve them. On that point, my perspective is a little more positive. By and large, every one does try, regardless of the difficulty. We are a very decent people, and it shows, no where moreso than when we try to do justice.
But enough now of introductions - a word or two about the program I intend to pursue. There are four major topics.
The first is the one that this blog has been named for - a series of extended anecdotal essays, about some of the more significant cases I handled in my career, each ideally illustrating some nuance or aspect of criminal justice as it happens in ordinary human experience. These are anything but war stories - in most of them, I figure rather poorly. The first of these, however, 'Replacement Atoms', concerning a convict who was at that time (1974) the third longest tenured prisoner in the California penal system, is the rule-proving exception. I did ok in that one.
Second, I am going to present a series of Modest Proposals for improvements in the criminal justice system. These reflect what might be called an engineering perspective about the system, i.e., they don't particularlhy favor prosecution or defense, just changes that might make for more efficient and accurate fact-finding.
Third will be some thoughts of a philosophical nature on subjects such as jury nullification, the death penalty, and so on.
And finally interspersed with all this will be comments about news items and current hot topics. A particular, painful interest of mine is 'exonerations' and the activites of organizations such as the Innocence Project. God knows mistakes of all kinds are inevitable in a system so redolent with human fallibility. But many of the exonerations claimed are anything but - and the Innocence Project seems to me far more interested in creating cynicism than correcting error. (I'd have been a lot more impressed if it had been named 'the Truth Project).
So that's my program. I hope you stay with me. All comments are welcome.
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