The Law is an Ass

[AmateurScientist]

In Oliver Twist, one of Charles Dickens' characters, Mr. Brumble, comments, "If the law supposes that, the law is a ass- a idiot."

DD's thread about H. Beatty Chadwick's spending 11 years in jail for contempt of court in his spiteful "scorched earth" divorce case inspired me to start a new thread with a slightly different focus.

There is one point DD was trying to make that I happen to agree with, although I was loathe to concede it in his thread, as DD's stance on the issues in that case is remarkably obtuse. Also, the case that inspired his point is a poor example to illustrate it, because it doesn't exemplify the kind of injustice he thinks it does.

That one point is this. Too often, when the law is applied to a particular set of facts in a case, justice does not result. In that sense, sometimes law and justice are at odds with each other. I agree with that notion wholeheartedly, although it is certainly not the case as often as many litigants claim. Even Justice Oliver Wendell Holmes agreed, and quoted Dickens' remark above in a famous written opinion from the bench. In any event, I think it's fair to say that virtually any experienced lawyer or legal scholar would agree that what is legal and what is just is not always the same thing.

Lawyers even have a common expression for this idea. "Bad facts make bad law." Most of us heard it at some point in law school. It means extreme cases can yield distorted and unjust results in court, and if those cases are appealed and a published appellate court decision results, that published decision can become law binding on everyone in that jurisdiction (judge made law, as opposed to statutory, or laws created by the legislature). Here's a link to a short essay written by an assistant district attorney in Texas about such a case.

http://www.wisecounty.com/themuse/Cuellar.htm

I don't mean to ignite a heated debate about the Cueller case. I'm interested more in a discussion in general about how sometimes a strict application of the law can result in justice's not being served, and sometimes its being twisted or even subverted altogether. I welcome your own stories, or examples of cases you find to be illustrative of the notion.

Discuss.

AS

[toddjh]

I think there are two important questions that need to be asked in order to frame this debate:

1. Is it even possible to create a system which maps every possible situation to a just result?

I vote no. Legislators and judges are human, and they're bound to make mistakes. They'll pass a law without considering every possible application, or they'll make a poor decision. We all know what the road to hell is paved with, and I don't think it's possible to foresee every possible pitfall down the road.

Okay, so you say that they should just do the best they can. Great...but aren't they doing that already? What specific changes can we implement to decrease the "bad law" which results from "bad facts?" I can't think of anything good, but of course I'm not a lawyer.

And,

2. What would be the effect of having such a system? Would it cause more harm than good?

I think it would. Any system which catered to every possible scenario would by necessity be so complex and cumbersome that it would be impenetrable even to lawyers. A system of law so labyrinthine would make it excessively difficult for a lawyer to do his job effectively.

It would also erode the predictability of the law, which is part of the point of having a system to begin with. If there are laws covering thousands of different scenarios, then naturally the lines between those scenarios would tend to get a bit blurry. It might get difficult to examine a case and decide which legal approach to take -- is it closer to Situation A or Situation B? Maybe it has subtle elements of both...what then? Not that this problem doesn't already exist, but I think trying to shoot for perfect justice would exacerbate it to an unacceptable level.

In other words, changing the law to address the legal difficulties of extreme situations might increase the practical difficulties. Sure, it might make the law more deterministic once the facts were decided, but determining the facts could become a nightmare.

[drkitten]

Okay, so you say that they should just do the best they can. Great...but aren't they doing that already? What specific changes can we implement to decrease the "bad law" which results from "bad facts?" I can't think of anything good, but of course I'm not a lawyer.

My understanding is that there are two major methods for getting rid of the "bad law" that results from "bad facts."

One is to re-write the law sensibly, via statute.

The other is to appeal a more sensible case and have it re-write the precedent.

Both of which are actually done. In the Chadwick case that prompted this thread, there is/was an interesting discussion in one of the Federal appeals (cited by Suddenly in the other thread). Basically, the Federal District Court more or less appealed its own decision (in one of the cases cited as precedent).

Basically, the law-as-established-by-precedent required the District Court to assume (apparently non-rebuttably) something that was clearly and demonstrably false. The District Court ruled in line with the law, not the facts, and explicitly invited appeal to the Supreme Court. Taking this broad hint, the Supreme Court granted cert. and ultimately ruled in favor of common sense.

Alternatively, the District Court could have ruled in favor of the facts (again inviting appeal) and let the Supreme Court figure it out.

That may be a solution for Cuellar as well. If another case, one with "good facts" comes up, then appeal it all the way up to the point where it is no longer binding precedent.

I don't see this as being as big a problem as people (lawyers, mostly), seem to think. There's always one more court to appeal to... and if it really is, demonstrably, "bad law," then the court will be happy to accept the appeal to fix it.

[AmateurScientist]

You make some good points.


I think there are two important questions that need to be asked in order to frame this debate:

1. Is it even possible to create a system which maps every possible situation to a just result?


No, I don't think so. No one has a crystal ball, and life is far too complex to make predictions on a systemic scale with billions of variables anyway.

Also, one man's justice is another man's travesty.


I vote no. Legislators and judges are human, and they're bound to make mistakes. They'll pass a law without considering every possible application, or they'll make a poor decision. We all know what the road to hell is paved with, and I don't think it's possible to foresee every possible pitfall down the road.


Good point. The law of unintended consequences manifests itself in the actual law far too often. In this sense, I'm speaking of statutory law. Lawmakers in general are usually horrible at foreseeing the unintended consequences of their actions.

The "bad law" in the OP is really about judge made law. A strict application of the law often results in poor outcomes when tough or extreme facts are present in a case.


Okay, so you say that they should just do the best they can. Great...but aren't they doing that already? What specific changes can we implement to decrease the "bad law" which results from "bad facts?" I can't think of anything good, but of course I'm not a lawyer.


I agree with you. I'm not proposing any specific or broad changes to the system. It works remarkably well.


And,

2. What would be the effect of having such a system? Would it cause more harm than good?


What kind of system? One with more legislation, one designed to address even more foreseeable instances, one where whenever someone thinks, "There ought to be a law," there is?

I think in general we are overregulated and that there is far too much legislation. So much of it is reactionary, like Megan's Law, for instance, that has far reaching unintended results. Lots of it is empty headed political grandstanding nonsense, like the perrenial attempts to ban flag burning. Even more of it is simply pork barrell appropriations crap that gets tacked onto larger bills.

We need regulation, of course, especially for consumer protection, for the safety of the public, for the smooth and orderly functioning of society, and to ensure that professionals are properly trained, of good character, and skilled and credentialed. We don't need laws resulting from the lobbying of powerful industries that serve only to protect their interests, like laws prohibiting the sale of satellite TV services in certain markets, which serve only to protect the monopoly interests of the cable companies, for instance.


I think it would. Any system which catered to every possible scenario would by necessity be so complex and cumbersome that it would be impenetrable even to lawyers. A system of law so labyrinthine would make it excessively difficult for a lawyer to do his job effectively.


You have no idea. As large as a good law library is, and as many millions of pages of information one can find in one, it is amazing to learn how often legal questions that seem easy enough simply don't have well-defined answers. In other words, quite often a lawyer will research an issue and discover that there is no law that speaks to that issue directly, and there are few, if any, cases discussing it. Even more common is finding a handful of cases that mention one's issue in passing, but don't really settle the question at hand.

As a result, an awful lot of the providing of legal advice and advocating legal positions comes from synthesizing a proposed solution from very fuzzy bits here and there. Black letter law, that is to say actual statutory and binding case authority, is surprisingly gray. That's in the abstract, without even applying it to the particulars of one's set of facts in a case. Applying the law to the facts too often yields the result that there is a paucity of law that speaks to the issues, and very little to work with when arguing to a judge.

Sometimes we run into questions that legislators and appellate courts simply have never addressed. We call these cases of first impression, and they appear more often than one might think.


It would also erode the predictability of the law, which is part of the point of having a system to begin with. If there are laws covering thousands of different scenarios, then naturally the lines between those scenarios would tend to get a bit blurry. It might get difficult to examine a case and decide which legal approach to take -- is it closer to Situation A or Situation B? Maybe it has subtle elements of both...what then? Not that this problem doesn't already exist, but I think trying to shoot for perfect justice would exacerbate it to an unacceptable level.


You're right that this problem already does exist.

There is no perfect system. I wish persons in the general public would cease to believe in a giant, mythical corrupt legal system as some sort of monolith. Too often it's perceived to be, or portrayed to be in popular media, as run in secret by a star chamber whose only interest is to line its members' pockets and to screw the common man in the process. That's a gross distortion of the truth, and the truth in the vast majority of instances is far closer resembling the ideals exhibited by Clarence Darrow in real life, and Atticus Finch in fiction, than those displayed by the villainous lawyers in John Grisham's The Firm or the sleazy scumbags on Ally McBeal.

Our legal and judicial systems have not been corrupted by money or greedy bastards out to cheat people. It has evolved over the course of hundreds of years (thousands, if you include vestiges of ancient Roman law), and many of the seemingly arbitrary rules of procedure and evidence, for instance, arise directly as solutions to some problem encountered in the past. Over time, the body of law that addresses procedure and evidence evolves much like species of animals do. It adapts and grows to meet current conditions. Usually law lags behind technology, however, so it may take a while to catch up in the information age, and usually the changes are reactive, not proactive.


In other words, changing the law to address the legal difficulties of extreme situations might increase the practical difficulties. Sure, it might make the law more deterministic once the facts were decided, but determining the facts could become a nightmare.

I don't advocate an overhaul of the legal or judicial systems. I'm not for an inflexible, deterministic system that cannot accommodate unusual or unforseeable circumstances.

I am mostly interested in anecdotes and illustrations, but your comments, and others like them, are certainly welcome.

AS

[The Atheist]

I don't mean to ignite a heated debate about the Cueller case. I'm interested more in a discussion in general about how sometimes a strict application of the law can result in justice's not being served, and sometimes its being twisted or even subverted altogether. I welcome your own stories, or examples of cases you find to be illustrative of the notion.

Discuss.

ASNo heated debate, but I'm wondering why you're using that one. If your point is to show that Law creates injustice, Cuella seems to be showing exactly the opposite.

You're the lawyer.

Explain.

[marksman]

If you want evidence of it going the other way, check out the front page New York Times article today about New York State village and town justices. Many of them are untrained. 75% are not lawyers. SOme of them have no high school education. They have authority to impose up to 2-year jail terms.

The original idea for these courts is that for small offenses -- traffic tickets, small commercial disputes, landlord-tenant issues -- in small towns, it's better to have someone who is familiar with (and elected by) the community, who can apply practical solutions that fits the specific cases, rather than rigidly apply a law that might not be appropriately tailored for the instant case.

The result? Rampant corruption, abuse of power, racial discromination in sentencing and general unequal treatment under the law. For all who decry the existence of lawyers, a short examination of what justice would look like when administered by non-lawyers should be a splash of cold water in the face.

There is no perfect system. One must find a balance between applying laws that apply equally to all and tailoring justice to meet the needs of an individual case.

[AmateurScientist]

No heated debate, but I'm wondering why you're using that one. If your point is to show that Law creates injustice, Cuella seems to be showing exactly the opposite.

You're the lawyer.

Explain.

I happened upon the case by Googling "Bad facts make bad law." I was hoping to start a discussion about the notion, not about the particular case. The case actually is a good example, nevertheless. If you don't see why from reading the District Attorney's account of it, then I can explain further (by the way, I misspoke in the OP when I stated that an assistant district attorney wrote the essay; it was the DA himself).

First, it is noteworthy that a District Attorney who represents the State of Texas is questioning the case, as it is the state which would have prosecuted Cueller and argued that the criminal offense of intoxication manslaughter was the appropriate criminal offense of which Cueller should have been convicted. The author's essay is forthright and candid in its suggesting that perhaps the case was wrongly decided at trial, at a post-trial hearing, and on appeal. I think he's right.

Please note that the whole notion of "bad facts make bad law" has to do with the implicit recognition that sometimes law and justice are not perfectly aligned. With that in mind, analyzing the application of the law to the facts at hand is best done from a legal perspective, not a moral or societal one. Justice is the ultimate goal in such an analysis, but in order to arrive there, one must apply a legal analysis and jump through those legal hoops. Court cases are within the purview of the law, of course, not necessarily in the domain of common sense notions of what is fair or right.

Look at Cueller's case. The offense for which he was indicted and convicted is intoxication manslaughter. The element of driving while intoxicated is satisfied easily enough according to the DA's account presented in the link. We can take it as a given in this scenario. The troublesome part is the manslaughter bit. According to the DA, under the relevant Texas law, the state must prove beyond a reasonable doubt that Cueller's driving while intoxicated caused "the death of another." He explains that the law defines "another" as meaning "a person," and that means "an individual," and that means " a human being who has been born and who is alive."

Please step back a moment and review the facts. Cueller was driving his vehicle while intoxicated and struck another vehicle driven by a pregant woman. He was not charged with having killed that woman, because according to the facts as stated in the DA's account, that woman did not die. The trauma of the motor vehicle collision with Cueller caused her to be admitted to the hospital for an emergency Caeserian section. She was 7 1/2 months pregnant at the time, so at the time of the collision itself, her baby had not been born -- it was still inside her body.

The woman's baby was born in emergency surgery, and it was born alive. Tragically, however, the baby died 43 hours later.

The question Cueller's lawyer raised at trial was whether the baby's death could satisfy the manslaughter part of the charge for which Cueller was indicted and standing trial. The lawyer argued that it couldn't for a simple reason. The law as it read made it explicit that in order to apply, a human being that had been born and was alive at the time of the incident had to have died as a result of the DWI collision Cueller caused. The lawyer wasn't arguing that Cueller wasn't intoxicated, or that he had not caused the collision. His lawyer was arguing that the unborn baby didn't satisfy the legal definition of "another" required by the statute. That's a very good argument. As the DA notes in his essay, it takes a very tortured reading of the definitions to come up with the result that a baby not yet born and still inside its mother, but which is later born and dies shortly thereafter, "has been born and is alive" at the time of the collision.

The DA labels these facts as "bad" because they present a very unusual case. That's what "bad" means in this context. It is extremely unusual for a pregnant woman to be injured in a car accident, have a baby born alive in an emergency C-section, and then have the baby die within a short enough time such that we can claim with a straight face that the car accident caused the baby's death. One could even argue that the car accident caused the baby's birth, because in a very real sense it did.

It's the tortured application of the law in this case -- the intoxication manslaughter law in Texas -- to the facts at hand which yield a "bad" result. The reason it's "bad" is not because justice wasn't served. To the DA, at least, Cueller's driving while intoxicated and causing the pregnant woman to lose her unborn child, albeit after it was then born, is of course tragic, and Cueller's criminal behavior deserves severe punishment. Nevertheless, the proper offense in this case is simply driving while intoxicated. Under the facts as presented, Cueller was guilty of that offense. He should be punished for that.

What about the unfortunate mother-to-be who lost her child? Sadly, the criminal law should serve in this instance only to provide her some small comfort that at least that the man responsible for her tragedy was convicted of DWI and received a jail sentence. The court can, and probably did, order that he pay her restitution for her medical bills and damage to her automobile. Presumably, she would also have a civil cause of action, proably for bodily injury to herself and damage to her automobile, and possibly negligent or wanton infliction of emotional distress (I have no idea if Texas recognizes negligent or wanton infliction, as opposed to intentional infliction).

One cannot, or at least should not, look to the results to the unfortunate mother-to-be (as she was at the time of the collision) in deciding how to charge Cueller with the appropriate criminal offense. The state has to prove the elements of the offense beyond a reasonable doubt. The particular law under which Cueller was charged has to be strictly construed in a criminal case. A strict construction of the statute can only yield the result that Cueller's conduct did not cause the death of another. That's because "another" means a human being who has already been born and who is alive at the time. The baby wasn't born. It was unborn at the time of the collision, still inside the woman's womb.

Why then did the trial court and the two out of three appellate judges who heard this case allow Cueller's conviction to stand? The DA suggests that politics played a big role in that decision. He postulates that the case comes very close to raising the issue of when is a baby a human being as that notion arises in hotly contested abortion debates. I think he's probably right. Another reason is that Cueller's conduct had such horrible and tragic results that punishing him only for simple DWI seems unduly lenient. Thus, the unusual (read "bad" in this context) facts make for "bad" law. That's because the appellate decision upholding Cueller's conviction for intoxication manslaughter has now become the official law of the land in Texas. Now, according to that judge-made law, the next time someone in Cueller's shoes "kills" an unborn child, it will be easier for the state to argue and win the argument that such conduct can serve as the basis for a conviction for intoxication manslaughter.

That's bad law.

The larger issue presented here is whether we want the ends to justify the means in the application of law. If we examine what happened to the poor mother-to-be in this case, it is horrible and tragic, and we want to do right by her. We want the guy to suffer. That's the ends we seek. Unfortunately, the law regarding manslaughter doesn't strictly apply to the facts, so the best a strict construction of the law can do is to charge, convict, and punish the guy for the offense he actually committed. That offense is driving while intoxicated.

The problem here is that justice, in the sense that most laypersons mean, cries out for the guy to be punished more severely than your garden variety DWI offender. OK, so the judge can max him out on punishment. If the DWI offense is a misdemeanor, that means the most he can get is a year in jail and a fine, probably up to about $5,000.00.

Anyway, back to the issue of the ends justifying the means. Many people can look at this case and say that the ends of justice were served, and thus there is no problem with this case. Most lawyers and legal scholars, however, would look at the torturing of the plain meaning of the statute the courts used to convict and uphold the conviction of Cueller and conclude that they "cheated" in order to get the result they wanted -- that the guy suffer more severe consequences than a year in jail for DWI. Thus, the trial judge and the two out of three appellate judges allowed the ends of their own sense of what was just in this case to justify the means of stretching the words and the meaning (the spirit of it) of the statute beyond all reasonable construction and fitting them to the facts of this case.

That's not a good idea, and it's not good public policy. It is not in the best interests of a civilized, conscientious society to allow the ends to justify the means when it requires abandoning sound and valuable principles. The sound and valuable principle at issue here is the strict application of the clear meaning of the intoxication manslaughter statute in Texas. The standard of proof in a criminal case is beyond a reasonable doubt, after all. That's the standard the jurors must apply to the facts and the elements of the offense. When the judges involved in the case, who are supposed to be dispassionate and above falling prey to sympathy and emotional appeal, abandon the high standard for a conviction in a criminal case because they feel sorry for the poor woman who lost her baby, something serious is amiss.

Justice lost here, and that's because the courts likely caved into emotion and abandoned the rule of law.

AS

[The Atheist]

Justice lost here, and that's because the courts likely caved into emotion and abandoned the rule of law.

ASGrr, silly me and my big mouth - asking a lawyer a simple question. My own fault for not being specific enough, I guess.

I completely understood the case from the first reading. I see that all judges decided that the child could be born "after the fact". I can't see that being a problem anywhere, ever. The appelate judges obviously concurred, justice was done, and seen to be done. Justice, as far as I have always been taught is about equity and fairness - arriving at the right result. The justice of Solomon is a classic example.

I could have sworn that your thread was pointing out that justice was in some way not done as a result of "bad facts", yet I see neither a lack of justice nor any facts which I'd care to dispute.

Your lawyerly interpretation on why the judges should have listened to the letter of the law is irrelevant - you've already touched on precedent; well, one's been set here, and damned good show! The precedent must now stand that a 7 1/2 month foetus who is then "after the fact" in a similar incident is now counted as a person.

If, however, the case had gone the other way and he'd got off only with drunken driving, because the baby hadn't been physically born, then I would have agreed with you that bad facts had resulted in an injustice. A 7 1/2 month foetus is as alive as you or I. In either of our respective countries, I suggest that the likelihood of a normal foetus being born at that stage would have a statistically extremely high chance of living.

The only area you can see an injustice is around that definition of person/individual and as far as I can see, you could argue that the LAW hasn't been served well by the case. Justice seems to have been served superbly.

ps. Sorry to derail your thread to exactly where you asked for it not to go, but hell, I'm a train wreck and in my way of thinking, the case negates your argument.

[AmateurScientist]

You don't see a problem with stretching the law beyond the limits of its clear meaning to fit the facts of this particular case, so as to achieve a result you would reach anyway, without any guidance from the law?

If not, what's the purpose of the law? Why not just decide all cases based on fairness and justice?

AS

[JamesDillon]

Interesting opening post, but I think Todd pretty well answered it:
I think there are two important questions that need to be asked in order to frame this debate:

1. Is it even possible to create a system which maps every possible situation to a just result?

I vote no.
I agree. The goal of the law is to create principles of general application intended to do justice most of the time in a given set of circumstances. Real life inevitably gives rise to complications that simply cannot be predicted, and the fact that human beings are applying the system means that sometimes they'll get it right, and sometimes they'll get it wrong. I've been working as a judicial officer for just over three weeks now, and have already been amazed and somewhat humbled by how difficult it is to puzzle over a set of facts and determine what even relatively well-settled law, much less justice, requires the outcome should be. The best we can hope for is that we'll get it approximately right, most of the time.

The situation is made all the more complicated by the fact that our (referring to the political mainstream's) conception of justice is not at all static. An outcome that might be deemed just 50 years ago (or even 20, as in the cases of Bowers v. Hardwick and Lawrence v. Texas) might be held to be an abominable miscarriage of justice today.

2. What would be the effect of having such a system? Would it cause more harm than good?
I disagree here, because the reasons you offer in support of your position seem more like a refutation of question 1 than a defense to a negative answer of question 2. If a perfect system of justice were possible (meaning possible in practice), then it wouldn't be subject to the shortcomings you note. I think that if such a system could be created, we'd be fools not to adopt it, but for the reasons stated in the first section of your post, such a system simply isn't possible.

[NoZed Avenger]

[QUOTE=AmateurScientist;1952340](I have no idea if Texas recognizes negligent or wanton infliction, as opposed to intentional infliction)./QUOTE]



No. It did historically, then required a physical injury along with the negligent conduct, then eliminated the tort entirely.

[NoZed Avenger]

You don't see a problem with stretching the law beyond the limits of its clear meaning to fit the facts of this particular case, so as to achieve a result you would reach anyway, without any guidance from the law?

If not, what's the purpose of the law? Why not just decide all cases based on fairness and justice?



And the potential harm here is the iron law of unintended consequences.

If you accept and unborn child as a "person," how are you reading that in relation to . . .say . . . abortion? Or HOV lanes? Or a dozen other laws that you weren't thinking of when you passed this decision?

If you divorce the decision from the text of the law, then you simply set judges up with unlimited power to enforce their own personal moral and ethical codes, without any real recourse. And it becomes hard, if not impossible, for normal citizens to predict what conduct will or won't be allowed if the texct of the laws can essentially be eliminated at will.

It comes down to this: how can you make sure that the judge rules "correctly" if you don't require him to follow laws which have been discussed, debated, and ultimately adopted through the legislative process?

[trvlr2]

Quote: You don't see a problem with stretching the law beyond the limits of its clear meaning to fit the facts of this particular case, so as to achieve a result you would reach anyway, without any guidance from the law?

If not, what's the purpose of the law? Why not just decide all cases based on fairness and justice?

AS


Actually , cases were supposed to be decided based on fairness and justice,from the beginnings of law.

How we got here from there is our "system of justice", which has stricken the justice part from the system.
How much justice you get is proportional to how much money you can afford to spend on justice.
If any crumbs of justice fall to the poor, it is indeed amazing. Color me rarely amazed.

[AmateurScientist]

I've long viewed a judge's sworn duty to uphold the law and to apply it when applicable as paramount in legal cases. I have also recognized the frequent conflict between applying the law and trying to do what the judge believes is just, regardless of what the law has to say about it.

I have many pragmatic tendencies, but I get queasy when I see judges disregard the law and apply from the hip notions of justice in real cases affecting real people. I get queasy even when they do it and it benefits my clients' causes and interests.

I see law and justice as wrestling for dominance in many cases, and sometimes I'm not sure about how I feel about them or which one to root for. The strict constructionist in me has a greater tendency to emerge, and I believe evenness, uniformity, and predictability in the law are all important virtues. On the other hand, sometimes the law really is an ass, and justice can be so obvious that the law can be shunted aside.

A fictional example I can think of it at the end of To Kill a Mockingbird when the sheriff and Atticus are standing on the porch discussing Boo's killing of the mean old man who attacked Jem. They both conspire in a real sense to ignore that Boo did it, and to allow the sheriff to write up the report that Boo was merely acting in self-defense (or was it that the killer couldn't be found?). The point is, both men, men of honor, chose justice over the rule of law as it applied to Boo. They knew that arresting and prosecuting Boo for the man's killing would serve no beneficial purpose for their community.

AS

[The Atheist]

Why not just decide all cases based on fairness and justice?

ASOh, christ no, we couldn't have that - fairness and justice! What would the world come to if fairness and justice ruled, you're quite right, how silly of me.

[AmateurScientist]

And the potential harm here is the iron law of unintended consequences.

If you accept and unborn child as a "person," how are you reading that in relation to . . .say . . . abortion? Or HOV lanes? Or a dozen other laws that you weren't thinking of when you passed this decision?

If you divorce the decision from the text of the law, then you simply set judges up with unlimited power to enforce their own personal moral and ethical codes, without any real recourse. And it becomes hard, if not impossible, for normal citizens to predict what conduct will or won't be allowed if the texct of the laws can essentially be eliminated at will.

It comes down to this: how can you make sure that the judge rules "correctly" if you don't require him to follow laws which have been discussed, debated, and ultimately adopted through the legislative process?

I'm with you.

AS

[AmateurScientist]

Oh, christ no, we couldn't have that - fairness and justice! What would the world come to if fairness and justice ruled, you're quite right, how silly of me.

The problem with that very popular lay approach, Atheist, is that it subverts the effect of the law making process of the legislature (what's the point of statutes when judges can ignore them at will?), it undermines respect for the rule of law, it makes uniformity in applying the law all but impossible, it destroys the ability of anyone, including lawyers who need to advice their clients about what the law says and how it applies in a case, to predict the probable outcome of any given case, since law apparently means nothing when fairness and justice rule the day.

Also, one man's fairness and justice is another man's travesty of justice. In the US, one of the basic tenets set forth by our founding fathers is that ours is a government of laws, not of men. That means it has continuity of values and principles, and rests on solid bedrock, rather than being subject to the whims of capricious persons who happen to be in positions of authority at the moment. That's the ideal, anyway, if not always the practice.

Given the choice, I'd choose the rule of law as implemented in common law countries over fuzzy notions of fairness and justice any day of the week and twice on Sunday.

AS

[AmateurScientist]

Quote: You don't see a problem with stretching the law beyond the limits of its clear meaning to fit the facts of this particular case, so as to achieve a result you would reach anyway, without any guidance from the law?

If not, what's the purpose of the law? Why not just decide all cases based on fairness and justice?

AS


Actually , cases were supposed to be decided based on fairness and justice,from the beginnings of law.

How we got here from there is our "system of justice", which has stricken the justice part from the system.
How much justice you get is proportional to how much money you can afford to spend on justice.
If any crumbs of justice fall to the poor, it is indeed amazing. Color me rarely amazed.

We got here mostly because of two documents which you may regard as trivial, but I don't. They are the Declaration of Independence and the US Constitution, including the Amendments, especially the first ten constituting the Bill of Rights.

AS

[AmateurScientist]

[QUOTE=AmateurScientist;1952340](I have no idea if Texas recognizes negligent or wanton infliction, as opposed to intentional infliction)./QUOTE]



No. It did historically, then required a physical injury along with the negligent conduct, then eliminated the tort entirely.



Thanks. Negligent infliction was always on shaky grounds anyway, in my opinion. I haven't looked into it lately, but I'm pretty sure Alabama may require a physical injury in order to support a cause of action for intentional infliction of emotional distress.

AS

[RandFan]

I don't feel qualified to add anything meaningful so far but I must say that I'm thoroughly enjoying the thread.

Thanks

:popcorn1

[qayak]

I don't feel qualified to add anything meaningful so far but I must say that I'm thoroughly enjoying the thread.

Thanks

:popcorn1

Not being qualified has never stopped me! :Banane20:

In my view, there is no such thing as a criminal justice system it is an industry pure and simple.

I think this results in a lot of bad things happening, like the privatization of prisons, the changing of laws to create new classes of criminals to fill these prisons and the complete lack of respect for law and law enforcement by a large portion of society.

Okay, now I feel better. :Banane08:

[RandFan]

Not being qualified has never stopped me! :Banane20:

You know, rarely does it stop me either, it's just that in the past whenever I tried to complain about the legal system and attorneys by sharing my anecdotes about what scum they were some killjoy with a law degree would make reasonable sounding arguments and reference Snopes or some credible news source that called into question my claims so I decided that I'm just not going to play their game.

[Darat]

Excellent thread - thanks.

[aerosolben]

According to the DA, under the relevant Texas law, the state must prove beyond a reasonable doubt that Cueller's driving while intoxicated caused "the death of another." He explains that the law defines "another" as meaning "a person," and that means "an individual," and that means " a human being who has been born and who is alive."

...

As the DA notes in his essay, it takes a very tortured reading of the definitions to come up with the result that a baby not yet born and still inside its mother, but which is later born and dies shortly thereafter, "has been born and is alive" at the time of the collision.
Perhaps there is some precedent involved here that I am missing (as IANAL), but the ruling does not seem as tortured to me as you and the DA make it out to be.

Manslaughter occurs when the accused causes the "death of [a human being who has been born and who is alive]". However, in the second paragraph I quoted, you have tacked on "at the time of the collision". Where does this come from? Why not "at the time of death"?

A literal reading of the statute could easily lead me to assume that death is when the assessment of personhood should occur, as death appears to be the event for which assessment is required. If that were the case, the decision seems quite reasonable from a legal standpoint.

I could see reading the case as you have, as well, but perhaps you could share why "at the time of the collision" is necessarily the legally correct decision?

[The Atheist]

........it destroys the ability of anyone, including lawyers who need to advice their clients about what the law says and how it applies in a case, to predict the probable outcome of any given case, since law apparently means nothing when fairness and justice rule the day.Well, I guess that's why you're opposed to it and I'm not.

Fewer lawyers, more justice, I'm happy.

[AmateurScientist]

Well, I guess that's why you're opposed to it and I'm not.

Fewer lawyers, more justice, I'm happy.

That's an awfully cynical view, and a foolish one too. Who are you going to turn to if you have the misfortune of being misidentifiied by a stranger and accused of having committed a horrible crime (it happens)?

Are you going to rely on your faith in justice to prevail, because no one ever gets wrongfully convicted? Are you going to rely on your lay reading of the law to guide you in your defense? What if you are mistakenly identified by two different witnesses at the scene as the man who raped and murdered a small child? Don't you suspect that an angry lynch mob mentality might demand "justice" in the form of cutting off your balls and feeding them to hungry wolves? Wouldn't you likely end up dead when it's all said and done?

How just is that?

You completely miss the value of being able to predict the outcome of possible disputes before they arise with a reasonable degree of certainty due to well crafted law. Businesses couldn't function without that ability, persons couldn't engage in mundane things like knowing what expenses they could deduct on their income taxes, and employees wouldn't know if they had been unlawfully treated on the job, for some routine examples. Those kinds of things affect everyone, whether they consult lawyers or not. Of course, prudent businesses do consult competent lawyers for assistance with the conduct of their businesses. Those who do not, often find themselves in trouble for having not obtained the proper licenses, paid the appropriate taxes, or having not required their employees to produce relevant documentation.

If you still fail to appreciate the value of such things, then you don't appreciate the complexity of a modern functioning society.

Lawyers are not a drag on society. They are integral to its proper functioning. Without them, you have the rule of the mob to decide what is just. Good luck with that.

AS

[JamesDillon]

I've long viewed a judge's sworn duty to uphold the law and to apply it when applicable as paramount in legal cases. I have also recognized the frequent conflict between applying the law and trying to do what the judge believes is just, regardless of what the law has to say about it.

I have many pragmatic tendencies, but I get queasy when I see judges disregard the law and apply from the hip notions of justice in real cases affecting real people. I get queasy even when they do it and it benefits my clients' causes and interests.

I see law and justice as wrestling for dominance in many cases, and sometimes I'm not sure about how I feel about them or which one to root for. The strict constructionist in me has a greater tendency to emerge, and I believe evenness, uniformity, and predictability in the law are all important virtues. On the other hand, sometimes the law really is an ass, and justice can be so obvious that the law can be shunted aside.

I agree. This is why I get queasy reading the Supreme Court's substantive due process line of cases, despite the fact that as a philosophical matter I prefer the outcome in virtually every one of them. The doctrine comes down to letting five people in black robes substitute their view of justice for that of a duly elected state legislature, and while I hate to admit it, the right wing has a point that there's something disturbing about that.

[The Atheist]

That's an awfully cynical view, and a foolish one too. Who are you going to turn to if you have the misfortune of being misidentifiied by a stranger and accused of having committed a horrible crime (it happens)?

Are you going to rely on your faith in justice to prevail, because no one ever gets wrongfully convicted? Are you going to rely on your lay reading of the law to guide you in your defense? What if you are mistakenly identified by two different witnesses at the scene as the man who raped and murdered a small child? Don't you suspect that an angry lynch mob mentality might demand "justice" in the form of cutting off your balls and feeding them to hungry wolves? Wouldn't you likely end up dead when it's all said and done?

How just is that?

You completely miss the value of being able to predict the outcome of possible disputes before they arise with a reasonable degree of certainty due to well crafted law. Businesses couldn't function without that ability, persons couldn't engage in mundane things like knowing what expenses they could deduct on their income taxes, and employees wouldn't know if they had been unlawfully treated on the job, for some routine examples. Those kinds of things affect everyone, whether they consult lawyers or not. Of course, prudent businesses do consult competent lawyers for assistance with the conduct of their businesses. Those who do not, often find themselves in trouble for having not obtained the proper licenses, paid the appropriate taxes, or having not required their employees to produce relevant documentation.

If you still fail to appreciate the value of such things, then you don't appreciate the complexity of a modern functioning society.

Lawyers are not a drag on society. They are integral to its proper functioning. Without them, you have the rule of the mob to decide what is just. Good luck with that.

AS"More justice, fewer lawyers" is a cynical view.

What in the name of %#$&& is that stuff you've just posted?

Jesus, I just made a post on how some sceptics are actually as prone to woo as any bleary-eyed ectoplasmic medium at 3 am on Walpurgis Night.

You may as well go back the ten commandments. Think about it - you're a lawyer and a sceptic. You know damned well that precedent has been a basis for law for centuries. Precedent comes about when a judge, usually followed by a panel of them, does something different, out of the ordinary. Nobody's suggesting degenerating to mob rule, but to treat the law as an inflexible, graven on stone tablets business is absurd. If the judges have shifted the goalposts, then so be it - isn't that why you live in a democracy where the judiciary and the executive are separated by statute? If the judiciary creates a precedent which the executive dislikes, they change the law as they're supposed to.

Just because the precedent in this case is unprecedented makes it no less worthy. I think you completely miss the value in having a legal system where exactly this kind of thing is allowed to happen - not encouraged, but allowed as circumstances provide.

[AmateurScientist]

Manslaughter occurs when the accused causes the "death of [a human being who has been born and who is alive]". However, in the second paragraph I quoted, you have tacked on "at the time of the collision". Where does this come from? Why not "at the time of death"?


That's a good question that is easy to answer. The answer is that we always look to the law as it existed at the time of the alleged offense and apply it to the facts at the time of the offense. Otherwise, you end of with ex post facto prosecutions, and the law (and justice too) prohibits that.

The main rationale for prohibiting ex post facto applications of the law in criminal prosecutions is that without that prohibition, persons going about their business wouldn't know whether they were committing criminal offenses or not. Now that may not seem so pertinent in Cueller's case, as he knew he was driving while intoxicated. The maximum punishment for that offense (when it's a misdemeanor, but it's not always a misdemeanor in some states, for it becomes a felony in mine if you have 3 or more prior convictions for driving under the influence) is 1 year in jail. Cueller got 16 years in prison. The reason he did is that the trial judge allowed his prosecution to proceed as a manslaughter case, even through the law as applied to the facts of the case at the time of the offense could not have applied to his conduct. He simply didn't kill anyone who was alive at the time of his offense.

Look at this another way. If you are going to wonder about how to apply the law to a give set of facts, let us suppose that on December 31, 2006, possession of marijuana is illegal in your state. The legislature has passed a law that will decriminalize possession of marijuana effective on January 1, 2007. You buy some weed on January 2, 2007, and you take it home and smoke a nice bowl. Your neighbor is a nosy Parker and dislikes potheads, so she calls the police and has you arrested for possession of marijuana.

Well, it was illegal. Let's apply the old law to your offense, since according to your reasoning it doesn't matter what the law was at the time of the offense. We can choose our time arbitrarily. See anything wrong with that?

Why shouldn't it work in the other temporal direction?


A literal reading of the statute could easily lead me to assume that death is when the assessment of personhood should occur, as death appears to be the event for which assessment is required. If that were the case, the decision seems quite reasonable from a legal standpoint.

I could see reading the case as you have, as well, but perhaps you could share why "at the time of the collision" is necessarily the legally correct decision?

The statute required that the "person" had already been born and alive at the time of the offense. The judge at trial disregarded that requirement, and the appellate judges did too (well, two of the three did; apparently one dissented, making the same objection to the application of the law that the DA does in his essay). In this case, the "person" alleged to have been killed didn't exist at the time of the offense. He -- the baby -- had not yet been born, as he was still an unborn fetus inside his mother-to-be. An unrelated, but similar question for you: Is a woman pregnant with her first child a "mother?" What if she later loses the child to miscarriage and never gets pregnant again? When was she a mother?

AS

[AmateurScientist]

Excellent thread - thanks.

Thanks for letting me know you're enjoying it.

Randfan,

Thank you too for acknowledging it. Feel free to participate from a lay perspective if you wish, or not, as you like.

AS

[JamesDillon]

"More justice, fewer lawyers" is a cynical view.
The idea that the former goal could be facilitated by the latter is both cynical and foolish, as AS explained to you.

You may as well go back the ten commandments. Think about it - you're a lawyer and a sceptic. You know damned well that precedent has been a basis for law for centuries. Precedent comes about when a judge, usually followed by a panel of them, does something different, out of the ordinary. Nobody's suggesting degenerating to mob rule, but to treat the law as an inflexible, graven on stone tablets business is absurd. If the judges have shifted the goalposts, then so be it - isn't that why you live in a democracy where the judiciary and the executive are separated by statute? If the judiciary creates a precedent which the executive dislikes, they change the law as they're supposed to.

Just because the precedent in this case is unprecedented makes it no less worthy. I think you completely miss the value in having a legal system where exactly this kind of thing is allowed to happen - not encouraged, but allowed as circumstances provide.
You seem to have, at best, only a tenuous grasp of how the legal system works. Most precedent is not a matter of a judge "doing something different." Most published opinions, which themselves form precedent, contain nothing more than the judge applying the same legal rule to the case at hand as was applied one or more previous cases, which themselves followed the same rule set down by yet earlier cases. Second-most common are instances in which no relevant court has ruled on the exact factual or legal issue before the court, so it must tread new ground not by doing something different than previous courts, but by creating a legal rule where there was none before. You'd be surprised how often this happens, despite the fact that the common law has been evolving for centuries. Only in a small minority of cases does a court feel justified in actually disregarding or reversing a legal rule set down by precedent that clearly applies to the case at hand. Moreover, the court making that decision must be a higher court than the one that laid down the rule initially-- a trial court, for example, has no discretion to depart from a legal rule articulated by a court of appeals, however unjust it might find that rule's application to be to the case before it.

You seem to think that AS is somehow blind or foolish to not realize that this state of affairs can sometimes lead to injustice, but what you fail to understand is the compelling priority of predictability and procedural justice over substantive justice in every case. Judges are never going to agree unanimously as to what a just outcome in every case would be, anyway-- this is why decisions are so frequently reversed and then re-reversed on appeal. Besides that, judicial adherence to the authority of precedent gives the law a consistency and predictability that, as AS noted, is absolutely essential for a properly functioning legal system. While judges inevitably have a great deal of discretion, the system hopes to minimize the effects of individual judges' idiosyncrasies on the outcome of cases, as it seems unjust that the outcome of one's case should depend in any significant way on the judge to which it happens to be assigned. That kind of consistency is simply impossible to attain if every judge acts purely in accordance with his or her own conception of justice, without regard to legal authority. It would be foolish to think that empowering judges to act more on the basis of their own conceptions of morality or justice would lead to consistently better results than the current system.

Edit: As an illustration of the perils created by a judicial system answerable to no higher authority, take a look at the NY Times's excellent article (http://www.nytimes.com/2006/09/25/nyregion/25courts.html?ex=1159416000&en=7d5452be6360a0ac&ei=5087%0A) on the state of the village justice system in New York State:
A woman in Malone, N.Y., was not amused. A mother of four, she went to court in that North Country village seeking an order of protection against her husband, who the police said had choked her, kicked her in the stomach and threatened to kill her. The justice, Donald R. Roberts, a former state trooper with a high school diploma, not only refused, according to state officials, but later told the court clerk, “Every woman needs a good pounding every now and then.”

[NoZed Avenger]

Edit: As an illustration of the perils created by a judicial system answerable to no higher authority, take a look at the NY Times's excellent article (http://www.nytimes.com/2006/09/25/nyregion/25courts.html?ex=1159416000&en=7d5452be6360a0ac&ei=5087%0A) on the state of the village justice system in New York State:

Beat me to it; I thought of the same thing.

No practical limits on these quasi-judges and a system that encouraged them to use "common sense" rather than law ended up with inconsistent decisions and rampant corruption, as the system did away with the limits we are discussing.

[AmateurScientist]

"More justice, fewer lawyers" is a cynical view.

What in the name of %#$&& is that stuff you've just posted?

Jesus, I just made a post on how some sceptics are actually as prone to woo as any bleary-eyed ectoplasmic medium at 3 am on Walpurgis Night.

You may as well go back the ten commandments. Think about it - you're a lawyer and a sceptic. You know damned well that precedent has been a basis for law for centuries. Precedent comes about when a judge, usually followed by a panel of them, does something different, out of the ordinary. Nobody's suggesting degenerating to mob rule, but to treat the law as an inflexible, graven on stone tablets business is absurd. If the judges have shifted the goalposts, then so be it - isn't that why you live in a democracy where the judiciary and the executive are separated by statute? If the judiciary creates a precedent which the executive dislikes, they change the law as they're supposed to.

Just because the precedent in this case is unprecedented makes it no less worthy. I think you completely miss the value in having a legal system where exactly this kind of thing is allowed to happen - not encouraged, but allowed as circumstances provide.

I think you misunderstand what precedent means. You are hardly alone in that regard.

Law comes from several sources. I recognize that you are in New Zealand, but your law is based on the same original source as ours in the US -- the English Common Law.

Common law was originally exclusively made by judges. They were empowered by and spoke for the Crown. At that time, there was a firmly entrenched concept that "the King can do no wrong," because he was quite literally above the law. This view is similar to and exemplified in Louis XIV's famous declaration, "L'etat, c'est moi."

Of course, the US was created as a constitutional republic, with three separate branches of government. Today, much of the West is modeled at least in part on that tri-partite system of government. The legislature is the law making body of the government. It passes laws in the form of statutes. The executive body carries out the day to day functioning of government, including regulating private behavior, and it too makes rules in the form of regulations. The judicial branch at the trial level decides cases before it, but at the appellate level, judges and justices make law too.

Let's discuss judge-made law for a moment, because I think that's where some of your misconceptions about precedent arise. Trial judges don't make law. Their decisions and orders in cases don't get published in the law books (ignore that a minority of federal trial court decisions do, but they don't have binding precedential effect) and have no binding precendential effect on anyone but the parties to that particular case, and only then the effect extends only to that matter, but does not necessarily govern the parties with respect to other affairs. Appellate court judges are bound by the lawful acts of the relevant legislature (that with the authority over their nation or state). I say "lawful acts," because judges do have the authority to declare acts of the legislature unconstitutional if they clearly do exceed their constitutional remit. Judges are not free, however, to declare legislative acts (statutes, which are law) simply "unjust" or "unfair" according to the whims of the judges. In order to strike down a law passed by the legislature, a court must make a written finding and explain that the law is unconsitutional. The court has to state explicitly why, and exactly what provision or provisions of the constitution the legislature has violated in enacting the law (there is actually another way to find a law unconstitutional, and that's in its application rather than on its face, but that's a much deeper discussion than this one is).

Where you are seemingly unknowingly equivocating is in your use of "precedent" as binding law. When we hear lawyers speak of "precedent," they are referrring to judge-made law, which is law which is decided at the appellate level, not the trial court level. So long as we are referring to laws passed by a legislature which have not been struck down as unconstitutional, however, judges, including trial judges, appellate judges, and supreme court justices, are bound by the acts of the legislature -- statutes. Does that make better sense. We do not refer to statutes as "precedent." Statutes are often referred to simply as "law." In court, one can often hear lawyers argue to the judge that "there is a statute which addresses this point, Your Honor, and it's found at Section 13-6-145 of the MyState Code." That statute is binding on the judge if it applies to the facts of the case. Deciding whether it applies to the facts at hand can be very difficult in practice. That's one reason you shouldn't so blithely dismiss lawyers as unnnecessary or superfluous. Judges and lawyers, both trained and schooled in the law, disagree on whether statutues apply. How well reasoned do you think the average layperson's decision to apply a statute or not to the facts is going to be?

Now, back to judge-made precedent. As the DA in the link I gave argues, and I agree with him, the trial court in Cueller's case misapplied the statute passed by the Texas legislature prohibiting DWI and causing the death of another to the facts of Cueller's case. The judge allowed the case to go to a jury and let them decide if Cueller was guilty of that offense. What he should have done is grant the defense's motion to dismiss the indictment, or to amend it to the correct, applicable charge -- simple DWI. Because Cueller was convicted of the greater offense, he appealed and argued on appeal that the statute was misapplied to his circumstances because they baby born later wasn't born and live at the time of his offense. The appellate court misapplied the statute as well, and upheld the trial court's decision to allow the case to go to the jury, which had the effect of upholding Cueller's conviction. That is now precedent, as you seem to understand.

Precedent in that sense is not the only law that is binding on persons subject to its jurisdiction, as you seem to be positing. You are ignoring legislative law, or statutes, and you are ignoring the supreme law of the land in constitutional republics, the constitution itself.

Sometimes what seems just requires disregarding all three of those: judge-made precedent, legislative law or statutes, and the text of the constitution.

Therefore, sometimes law and justice conflict with each other.

AS

[JamesDillon]

Beat me to it; I thought of the same thing.

No practical limits on these quasi-judges and a system that encouraged them to use "common sense" rather than law ended up with inconsistent decisions and rampant corruption, as the system did away with the limits we are discussing.

Also note that 3/4 of the village justices are not lawyers, which The Atheist seems to think would lead to greater justice in the world. The available evidence appears to suggest the exact opposite-- that ignorance of the law encourages judges to rely on their own personal prejudices and brings out the worst as often as the best in human nature.

[Darat]

Also note that 3/4 of the village justices are not lawyers, which The Atheist seems to think would lead to greater justice in the world. The available evidence appears to suggest the exact opposite-- that ignorance of the law encourages judges to rely on their own personal prejudices and brings out the worst as often as the best in human nature.


Out of curiosity how does the "village justices" idea differ from the UK Magistrate courts?

ETA - scrap that question I just took the time to read that article and a couple of others - I now know how it differs!

[Darat]

Also note that 3/4 of the village justices are not lawyers, which The Atheist seems to think would lead to greater justice in the world. The available evidence appears to suggest the exact opposite-- that ignorance of the law encourages judges to rely on their own personal prejudices and brings out the worst as often as the best in human nature.

Going to disagree with you slightly. For instance the Magistrates in England and Wales are rarely lawyers and I would say that the system over here works as well as any part of the Justice System. To me the major problem with the NY "tiny courts" seems to be a matter of not having an established and monitored "due process" and lack of legal advice for the JP - both of which could be solved by appointing a court solicitor to provides advice on the law to the JP and to see that the trial is conducted as per the legal requirements.

[AmateurScientist]

Edit: As an illustration of the perils created by a judicial system answerable to no higher authority, take a look at the NY Times's excellent article (http://www.nytimes.com/2006/09/25/nyregion/25courts.html?ex=1159416000&en=7d5452be6360a0ac&ei=5087%0A) on the state of the village justice system in New York State:

Wow.

My state has nothing comparable. All municipal judges are appointed and are licensed lawyers, and all state judges are licensed lawyers appointed and/or elected to the bench (they can be appointed initially, but they must run for office when their initial term is out). The only judges who are not necessarily lawyers are probate judges, and nearly all of their acts are ministerial, not requiring a close reading of the law. In practice, when they have genuine legal issues before them, such as in a will contest, the lawyers on one side or the other will simply have the case removed to circuit court, which is presided over by a lawyer duly appointed or elected to the bench. In effect, probate judges rarely have to apply law to the facts as other judges routinely do.

We have magistrates, of course, but they are limited to performing ministerial acts, such as issuing warrants. They cannot hear or try cases, with the very limited exception of being able to accept a guilty plea for a very minor parking or traffic offense which is punishable only by fine and court costs. A local magistrate cannot sentence anyone to jail.

Those local justice courts in New York sound like abominations. The horror, the horror.

AS

[ponderingturtle]

Oh, christ no, we couldn't have that - fairness and justice! What would the world come to if fairness and justice ruled, you're quite right, how silly of me.

Interesting, this is the first time I have seen people argueing for an all powerful judicial.

[ponderingturtle]

Well, I guess that's why you're opposed to it and I'm not.

Fewer lawyers, more justice, I'm happy.

Go popular justice, bring back the vigilance comities! That will solve this whole problem with courts and lawyers.

[AmateurScientist]

Going to disagree with you slightly. For instance the Magistrates in England and Wales are rarely lawyers and I would say that the system over here works as well as any part of the Justice System. To me the major problem with the NY "tiny courts" seems to be a matter of not having an established and monitored "due process" and lack of legal advice for the JP - both of which could be solved by appointing a court solicitor to provides advice on the law to the JP and to see that the trial is conducted as per the legal requirements.

That's interesting. Your Magistrates and their court solicitors advising them regarding the law sound very much like administrative separation boards in the US military. Such boards are constituted of military officers (and at least one non-commissioned officer in the case of an enlisted person) appointed by a high ranking commander (usually a two-star -- that's a Major General in the army, for instance, or a Rear Admiral in the navy). Those officers are not lawyers. They preside over the proceedings and apply the appropriate law and regulations to the facts of the case as they decide them. Both sides before the board have attorneys representing them. The government trying to discharge the servicemember has counsel, and so does the servicemember facing possible discharge. In addition, there is a legal advisor appointed to advise the administrative separation (discharge) board.

Here is one problem I often encountered when serving as the legal advisor to such boards while I was an active duty US Army JAG officer (an army lawyer). I was a mere First Lieutenant and then a Captain during my army career. The majority, if not all, of the members of the board typically outranked me. In theory, they were supposed to listen to my legal advice and follow it in matters involving questions of law and regulation. In practice, they often disregarded my correct advice in favor of listening to their own guts and applying their own senses of justice in the case. My relative inexperience as soldier compared to theirs was an important factor in their disregarding my advice at times, in my opinion.

I suspect that may also sometimes be the case with your Magistrates when the court solicitor is younger and less experienced in court matters than the Magistrate is. A critical difference, however, is that presumably your Magistrates serve continuously for a period or term, or even a succession of them, whereas the US military's administrative separation boards are not standing bodies; they are constituted ad hoc, for that single case alone. Therefore, such military boards do not have an opportunity to establish a rapport with and trust in the counsel of the legal advisor, whereas your Magistrates do have such an opportunity with their solicitors.

AS

[NoZed Avenger]

My state has nothing comparable. All municipal judges are appointed and are licensed lawyers, and all state judges are licensed lawyers appointed and/or elected to the bench (they can be appointed initially, but they must run for office when their initial term is out).

We have Small Claims Courts/Justice Courts here that require no law degree, but their jurisdiction and powers are apparently much more limited than in NY. The majority (in my experience) are also lawyers, though it isn't a requirement. Appeals from those courts are, however, de novo to the county court level.

[AmateurScientist]

Interesting, this is the first time I have seen people argueing for an all powerful judicial.

Yes, it seems that The Atheist would be happy with Star Chambers.

AS

[AmateurScientist]

We have Small Claims Courts/Justice Courts here that require no law degree, but their jurisdiction and powers are apparently much more limited than in NY. The majority (in my experience) are also lawyers, though it isn't a requirement. Appeals from those courts are, however, de novo to the county court level.

We have small claims courts too, of course, but they are district court judges (who must be licensed attorneys and initially appointed by the Governor and/or then subsequently (or initially, but this rarely occurs in practice) elected by the electorate) wearing their small claims court hats (those same judges also try misdemeanor cases, juvenile cases, and civil cases not involving equity, and limited to a maximum dollar amount in dispute).

Georgia has magistrate judges who are not required to be lawyers, and they can try small claims court cases.

AS

[marksman]

For instance the Magistrates in England and Wales are rarely lawyers and I would say that the system over here works as well as any part of the Justice System. To me the major problem with the NY "tiny courts" seems to be a matter of not having an established and monitored "due process" and lack of legal advice for the JP - both of which could be solved by appointing a court solicitor to provides advice on the law to the JP and to see that the trial is conducted as per the legal requirements.

Of course adding a court solicitor, who would likely be a lawyer, would eliminate Amateur's ideal of having fewer lawyers in the courtroom. Might as well just make sure your judges are lawyers and reduce your staffing in half.

[marksman]

Those local justice courts in New York sound like abominations. The horror, the horror.
It's not as bad as the article makes it seem, but it's not good. Large communities have better judges because, oddly enough, the more distanced you are from the constituency the more neutral you can be. The problems in the article occur in small counties in which the judge knows everybody's business and thus finds it difficult to be objective. Also, since he's used to dispensing "country justice", he's disinclined to take a more dispassionate view when people he doesn't know are involved.

You won't find justice courts are much of a problem in Manhattan, Yonkers or Binghamton. The problem is when you head into Wyoming County with 3,000 residents, and a judge who can remember where he was when each litigant was born.

[AmateurScientist]

Of course adding a court solicitor, who would likely be a lawyer, would eliminate Amateur's ideal of having fewer lawyers in the courtroom. Might as well just make sure your judges are lawyers and reduce your staffing in half.

Careful. I think you mean The Atheist's ideal, not mine. I certainly never advocated dispensing with lawyers. I'd be out of a job.

AS

[ponderingturtle]

It's not as bad as the article makes it seem, but it's not good. Large communities have better judges because, oddly enough, the more distanced you are from the constituency the more neutral you can be. The problems in the article occur in small counties in which the judge knows everybody's business and thus finds it difficult to be objective. Also, since he's used to dispensing "country justice", he's disinclined to take a more dispassionate view when people he doesn't know are involved.

You won't find justice courts are much of a problem in Manhattan, Yonkers or Binghamton. The problem is when you head into Wyoming County with 3,000 residents, and a judge who can remember where he was when each litigant was born.

Actualy one of the problem judges was in westchester the same county as yonkers.

Another, in Westchester County, had warned the police not to arrest his political cronies for drunken driving, and asked a Lebanese-American with a parking ticket if she was a terrorist.

And yes I can see you know that as you also live in the same county(I live in ossining)

[Dave1001]

I think there are two important questions that need to be asked in order to frame this debate:

1. Is it even possible to create a system which maps every possible situation to a just result?

I vote no. Legislators and judges are human, and they're bound to make mistakes. They'll pass a law without considering every possible application, or they'll make a poor decision. We all know what the road to hell is paved with, and I don't think it's possible to foresee every possible pitfall down the road.

Okay, so you say that they should just do the best they can. Great...but aren't they doing that already? What specific changes can we implement to decrease the "bad law" which results from "bad facts?" I can't think of anything good, but of course I'm not a lawyer.

And,

2. What would be the effect of having such a system? Would it cause more harm than good?

I think it would. Any system which catered to every possible scenario would by necessity be so complex and cumbersome that it would be impenetrable even to lawyers. A system of law so labyrinthine would make it excessively difficult for a lawyer to do his job effectively.

It would also erode the predictability of the law, which is part of the point of having a system to begin with. If there are laws covering thousands of different scenarios, then naturally the lines between those scenarios would tend to get a bit blurry. It might get difficult to examine a case and decide which legal approach to take -- is it closer to Situation A or Situation B? Maybe it has subtle elements of both...what then? Not that this problem doesn't already exist, but I think trying to shoot for perfect justice would exacerbate it to an unacceptable level.

In other words, changing the law to address the legal difficulties of extreme situations might increase the practical difficulties. Sure, it might make the law more deterministic once the facts were decided, but determining the facts could become a nightmare.

I think the optimizing equations are going to enter the law with increasing frequency, until eventually for all intents and purposes it will be economists and applied mathematicians that write the law. Because economics is the god of utilitarian law and policy.

[drkitten]

You completely miss the value of being able to predict the outcome of possible disputes before they arise with a reasonable degree of certainty due to well crafted law. Businesses couldn't function without that ability, persons couldn't engage in mundane things like knowing what expenses they could deduct on their income taxes, and employees wouldn't know if they had been unlawfully treated on the job, for some routine examples. Those kinds of things affect everyone, whether they consult lawyers or not. Of course, prudent businesses do consult competent lawyers for assistance with the conduct of their businesses. Those who do not, often find themselves in trouble for having not obtained the proper licenses, paid the appropriate taxes, or having not required their employees to produce relevant documentation.

I think you may be asking too much of the law.

A well-crafted law, almost by definition, produces a decision that will be broadly recognized as "fair and just" in well-crafted circumstances, such as the typical circumstances envisioned by the legislature when they wrote it. In this regard, it's no different than any other equipment. My well-crafted car works well and reliably under "normal" circumstances; but if I got drunk and tried to turn it into a submarine, it would probably not work properly. But we don't expect cars to work underwater.

"The value of being able to predict the outcome of possible disputes before they arise with a reasonable degree of certainty due to well crafted law" is similarly a value that really only applies in well-crafted circumstances. Ill-crafted circumstances, you don't have that predictability, precisely because the laws are never well-enough written to cover all cases.

[Metullus]

That's a good question that is easy to answer. The answer is that we always look to the law as it existed at the time of the alleged offense and apply it to the facts at the time of the offense. Otherwise, you end of with ex post facto prosecutions, and the law (and justice too) prohibits that.

The main rationale for prohibiting ex post facto applications of the law in criminal prosecutions is that without that prohibition, persons going about their business wouldn't know whether they were committing criminal offenses or not. Now that may not seem so pertinent in Cueller's case, as he knew he was driving while intoxicated. The maximum punishment for that offense (when it's a misdemeanor, but it's not always a misdemeanor in some states, for it becomes a felony in mine if you have 3 or more prior convictions for driving under the influence) is 1 year in jail. Cueller got 16 years in prison. The reason he did is that the trial judge allowed his prosecution to proceed as a manslaughter case, even through the law as applied to the facts of the case at the time of the offense could not have applied to his conduct. He simply didn't kill anyone who was alive at the time of his offense.

Look at this another way. If you are going to wonder about how to apply the law to a give set of facts, let us suppose that on December 31, 2006, possession of marijuana is illegal in your state. The legislature has passed a law that will decriminalize possession of marijuana effective on January 1, 2007. You buy some weed on January 2, 2007, and you take it home and smoke a nice bowl. Your neighbor is a nosy Parker and dislikes potheads, so she calls the police and has you arrested for possession of marijuana.

Well, it was illegal. Let's apply the old law to your offense, since according to your reasoning it doesn't matter what the law was at the time of the offense. We can choose our time arbitrarily. See anything wrong with that?

Why shouldn't it work in the other temporal direction?



The statute required that the "person" had already been born and alive at the time of the offense. The judge at trial disregarded that requirement, and the appellate judges did too (well, two of the three did; apparently one dissented, making the same objection to the application of the law that the DA does in his essay). In this case, the "person" alleged to have been killed didn't exist at the time of the offense. He -- the baby -- had not yet been born, as he was still an unborn fetus inside his mother-to-be. An unrelated, but similar question for you: Is a woman pregnant with her first child a "mother?" What if she later loses the child to miscarriage and never gets pregnant again? When was she a mother?

ASI think you missed aerosolben's point - I do not think it related to ex post facto application of law. I think it has to be with the temporal dislocation of events. There could be a difference, could there not, between the event (the car wreck) and the offense (the killing of the child)? If the offense is the killing of the child, then it would not matter when the child was born as long as the child was legally alive prior to its death, no? Does the law require that there must be a temporal relationship between the triggering event (the DUI and car wreck) and the alleged crime (the killing of the child).

Not very articulate of me I know, but..?


ETA: Great thread BTW.

[marksman]

Yeah, I had forgotten about him, ponderingturtle! Never mind. Justice courts just suck.

[The Atheist]

You seem to have, at best, only a tenuous grasp of how the legal system works.You seem to assume an awful lot, but then, fancy that, I've argued that with you previously, too.

[AmateurScientist]

I think you may be asking too much of the law.



Well, it works remarkably well in some circumstances, but not so well in others.

For an instance of the former, consider traffic laws (including the duty to obey signs, markings, and signals). Without them, trying to figure out what to do at a busy intersection would be vexing. They are essential and enormously beneficial for the orderly functioning of a society based upon getting around in cars, accidents notwithstanding.

Income tax laws are an example of the latter. They are so complex and so dense and difficult to apply in practice that even most Congress persons, the lawmakers themselves, hire accountants to prepare their own personal income tax returns.


A well-crafted law, almost by definition, produces a decision that will be broadly recognized as "fair and just" in well-crafted circumstances, such as the typical circumstances envisioned by the legislature when they wrote it. In this regard, it's no different than any other equipment. My well-crafted car works well and reliably under "normal" circumstances; but if I got drunk and tried to turn it into a submarine, it would probably not work properly. But we don't expect cars to work underwater.


That's a fair statement. I think a well-crafted law is broad enough to cover most circumstances it is intended to cover, but not so broad as to capture the unwary in its traps. I'm speaking of legislation in this context.

No one expects a car to drive underwater (except James Bond), so we're not surprised when it doesn't work there. The government does apply laws to situations in which they were not intended to be applied, however. Fortunately, we don't need Q to design and build us a car-submarine, as we have rules of statutory construction to assist courts (and lawyers advising their clients, and even lay persons reading those same laws) in determining whether the law applies, and if so, how to apply it. Those rules tend to stop the government from driving underwater too often.



"The value of being able to predict the outcome of possible disputes before they arise with a reasonable degree of certainty due to well crafted law" is similarly a value that really only applies in well-crafted circumstances. Ill-crafted circumstances, you don't have that predictability, precisely because the laws are never well-enough written to cover all cases.

No doubt. That will always be the case. Hence, the origin of the phrase "bad facts make bad law." The lesson one is supposed to learn from that maxim and the cases which illustrate it is that we shouldn't rely on extreme or unusual circumstances in fashioning guidance for the more pedestrian ones. Unfortunately, the appellate rulings in such cases too often end up on the books, and because of their precedential value, they end up being extended to apply to circumstances in which they shouldn't. Contrast this with my above comments in which I was discussing legislation. Here, I'm speaking of common law, or judge-made law.

Actually, I suppose bad facts can result in bad statutory law as well, particularly when legislation arises solely as a reaction to a horrific event. In particular, I'm thinking of "Megan's Law" and its implementation at the state level in the various states. Sex offender registration laws derived from the federal Megan's Law requirements tend to be over broad in scope, and overly restrictive on the persons to whom they apply as well. I don't think they serve their intended purpose, which is to make children safer from sexual predators. Megan's Law is a poorly crafted law, in my opinion, but we already had a discussion about that in another thread, so I don't wish to derail this one with yet another about sex offenders.

AS

[AmateurScientist]

I think you missed aerosolben's point - I do not think it related to ex post facto application of law. I think it has to be with the temporal dislocation of events. There could be a difference, could there not, between the event (the car wreck) and the offense (the killing of the child)? If the offense is the killing of the child, then it would not matter when the child was born as long as the child was legally alive prior to its death, no? Does the law require that there must be a temporal relationship between the triggering event (the DUI and car wreck) and the alleged crime (the killing of the child).


I don't think aerosolben intended to raise the issue of ex post facto laws, but I think he did so inadvertently.

In determining whether Cueller committed the offense of intoxication manslaughter (and I haven't read the statute; I'm relying solely on the DA's description of it from the essay), we have to examine the facts of the offense at the time of its commission. The DA tells us in the essay that the offense for which Cueller was indicted and then convicted is intoxication manslaughter, and he tells us that it requires that Cueller cause the death of another, which is defined elsewhere in Texas law as "a human being who has been born and who is alive." The clear meaning of "has been born" is that at the time of the offense, which is the time when Cueller was operating a motor vehicle while intoxicated, that human being had to have been born.

That is clearly not the case in the facts presented to us. The baby was born after the automobile collision Cueller caused. The pregnant woman Cueller hit was rushed to the hospital and delivered the baby prematurely in an emergency C-section. It could not have been born prior to its birth in the ER. Therefore, the baby could not have been born at the time of the offense. Retrofitting the law to the facts in this case requires disregarding the plain meaning of "has been born" in the statute. It also calls into question the meaning of "alive" at the time of the offense. That's the part the DA is referring to when he mentions that the case comes awfully close to being part of the abortion debate. Was the unborn fetus "alive" at the time of the automobile collision? That's a question we could debate medically, but the legal custom as reflected by birth certificates and the societal custom of referring to birthdates both assume that we mean "alive" to refer to the moment of birth itself, not some time before that. My state's birth certificates are entitled "Certificate of Live Birth" for instance. It gives me a headache to ponder how a fetus could be alive prior to its birth. Apparently, however, that is the effect of the Cueller decision. The courts determined in effect that the baby was not only alive, but also "had been born" prior to its being removed from its mother-to-be's uterus in surgery.

Bizarre.

AS

[aerosolben]

I think you missed aerosolben's point - I do not think it related to ex post facto application of law. I think it has to be with the temporal dislocation of events. There could be a difference, could there not, between the event (the car wreck) and the offense (the killing of the child)? If the offense is the killing of the child, then it would not matter when the child was born as long as the child was legally alive prior to its death, no? Does the law require that there must be a temporal relationship between the triggering event (the DUI and car wreck) and the alleged crime (the killing of the child).
This is indeed what I meant, and I don't think ex post facto is the same thing. Though the child is not alive at the time of the collision, it would have been considered alive at the time of the offense, as you put it. One could fairly say that the actions of the accused directly caused the death of a person, given that the bar for personhood had been met when death occured (if not when the initiating incident occured).

[aerosolben]

I don't think aerosolben intended to raise the issue of ex post facto laws, but I think he did so inadvertently.

In determining whether Cueller committed the offense of intoxication manslaughter (and I haven't read the statute; I'm relying solely on the DA's description of it from the essay), we have to examine the facts of the offense at the time of its commission.
I see you beat me to a reply.

If the mother herself had died 48 hours later, the driver could have been charged with manslaughter under Texas law, yes? Despite the fact that she was still alive at the time of commission?

ETA: Let me assume an answer and continue my point to speed the discussion. If death can be evaluated after the fact (something a different usage that what you've pointed out with ex post facto, I think) as a direct result of an incident (or whatever the text of the relevant statute is), shouldn't the acquisition of personhood as part of that causual chain of events been considered?

[ponderingturtle]

Yeah, I had forgotten about him, ponderingturtle! Never mind. Justice courts just suck.

I was reading throuhg the article I found this

Across the Hudson, Joseph Cerbone, the Mount Kisco justice with the miniature violin, persuaded a young woman to drop her abuse case against the son of a couple he had done legal work for. She told the commission that while she did not believe the justice’s claim that the son was “a decent guy” who had “made a mistake,” she had no choice article (http://www.nytimes.com/2006/09/25/nyregion/25courts.html?pagewanted=7&ei=5087%0A&en=7d5452be6360a0ac&ex=1159416000)

I am in mount kisco right now(it is where I work)

On the other side I think this is the kind of judge that my neibor down the street is(not sure he has been a judge for at least 15 years so I am not sure if he is this sort of judge or a different one or both) I do know he is elected.

[The Atheist]

I think you misunderstand what precedent means. You are hardly alone in that regard.And I can guarantee that I don't misunderstand it at all, but thanks to both yourself and JD for spending all that time typing it out.

I had hoped that my comments would have been read as intended, that I'm not seeking to change the law to allow judges to have the ability to use the law as they see fit (which I did say), but selective reading seems to be the norm, so let's try again........

First off, I have made one assumption, which no doubt you can correct me on if I'm wrong: that these circumstances have never arisen previously in the state. The definition of having been "born and alive" at the time of the crash is obviously the crucial one.

Yes, yes, it isn't the judge's place to decide that, it needs legislation changes, blah, blah, blah. I know all that, I just don't bother writing it all, as I expect people to follow simple concepts without the need to write pages on it.

My single point is that your OP was about injustice and in this case, there hasn't been any. Buried away in my posts, you may have seen this comment:
If your point is to show that Law creates injustice, Cuella seems to be showing exactly the opposite.

You're the lawyer.

Explain.

And it's still the one point which hasn't been answered. You've gone to great pains to tell me what I already know, but you have NOT answered that question, which is actually the only one which matters.

My position is simple - better to have the right justice rather than the right law, but that's what got us side-tracked, so I won't say that again. People seem to be unable to read the small print in posts, I'd love to be drawing up financial contracts for you guys!

Therefore, let's forget all the legal jargon and concentrate on that issue. I accept all of the legal arguments and always have. As your OP says, the law's an ass.

I've seen you discuss the potential for injustice, but nowhere have I seen you give a reason as to why this decision is unjust - unless you're related to the killer, there isn't one. The right decision has been reached for the wrong reasons. The very definition of the word justice includes "fairness". In Cuellar's case, unfairness and injustice would be him getting away with [almost] murder.

No legal arguments, please, just tell me why, from a JUSTICE, not legal position, this is sush an unjust result. You made the point yourself that justice and the law are different beasts, so stick to the J word only. {aside: This situation doesn't arise here in NZ as unborn, viable foetuses are already protected by law and regarded as people.}

[AmateurScientist]

I see you beat me to a reply.

If the mother herself had died 48 hours later, the driver could have been charged with manslaughter under Texas law, yes? Despite the fact that she was still alive at the time of commission?


I almost mentioned this a while ago in this thread. I'm glad you brought it up.

To answer simply, yes. There is a difference, however. If the mother-to-be (to be precise) had died 48 hours later, then the issue would be was her death caused by Cueller's DWI and the collision it caused? I think nearly all of us would answer in the affirmative, including me.

This issue has certainly arisen many times before, and legislatures have familiarity with it such that they have codified the meaning of "causing the death" of someone. In my state, for instance, I believe that if one dies within 1 year of an event criminal in nature that led to one's death, then one can be charged with murder, manslaughter, or criminally negligent homicide. That one year time period is defined specifically in the statute itself. It isn't read into the statute later to criminalize behavior so as to fit what we want it to say.

In the Cueller case, it wasn't the mother-to-be who died. Clearly, she was alive at the time of the offense, when Cueller was driving while intoxicated and caused the collsion. The one who died had not yet been born, and was not alive at the time of the offense. The statute itself requires that "another" whose death is caused by the DWI have been born and be alive at the time of the offense. It cannot be any other way and make any sense.


ETA: Let me assume an answer and continue my point to speed the discussion. If death can be evaluated after the fact (something a different usage that what you've pointed out with ex post facto, I think) as a direct result of an incident (or whatever the text of the relevant statute is), shouldn't the acquisition of personhood as part of that causual chain of events been considered?

Well, the term "personhood" isn't defined in the statute. This case is about statutory construction -- how do courts construe statutes and apply them. The terms are all there, albeit not in the same code section, according to the DA. The terms we need are DWI, caused by, death, another, individual, human being, has been born, and alive. As those terms are defined in the Texas Code, they don't apply to Cueller's circumstances, not unless we are willing to call an unborn fetus "having been born" and "alive."

Like I mentioned above in this thread, I can make a straight faced argument that Cueller's offense caused the birth of the woman's baby. Quite literally, it did. Had not Cueller been DWI and caused this collision with this pregnant woman, the baby would likely not have been born on that date. This case presents a bizarre near paradox that with one single act Cueller caused both the birth and the death of a baby.

That seems true enough factually. The problem with the legal case is that crimes are defined by statute, and the statute charging Cueller with causing the death of another simply couldn't apply to the unborn baby's death.

Had the woman died 48 hours later, she would have satisfied the definition of "another" and Cueller could have been properly tried and convicted under similar facts.

AS

[AmateurScientist]

My position is simple - better to have the right justice rather than the right law, but that's what got us side-tracked, so I won't say that again. People seem to be unable to read the small print in posts, I'd love to be drawing up financial contracts for you guys!

Therefore, let's forget all the legal jargon and concentrate on that issue. I accept all of the legal arguments and always have. As your OP says, the law's an ass.

I've seen you discuss the potential for injustice, but nowhere have I seen you give a reason as to why this decision is unjust - unless you're related to the killer, there isn't one. The right decision has been reached for the wrong reasons. The very definition of the word justice includes "fairness". In Cuellar's case, unfairness and injustice would be him getting away with [almost] murder.

No legal arguments, please, just tell me why, from a JUSTICE, not legal position, this is sush an unjust result. You made the point yourself that justice and the law are different beasts, so stick to the J word only. {aside: This situation doesn't arise here in NZ as unborn, viable foetuses are already protected by law and regarded as people.}


OK, I see what you're getting at better now. Thanks. Oh, and by the way, you asked me to explain. You forfeit the right to complain about my explaining once you ask, particularly since you didn't ask a precise question.

Anyway, I think now that you are right to point out that perhaps Cueller illustrates the opposite of my noting that sometimes a strict application of the law yields an unjust result. There is another way of regarding "justice" here, however, without getting bogged down in "legal jargon," as you derisively refer to it.

Justice can mean as between the parties involved in this particular case, but it can also mean with respect to society as a whole. I think the kind of legislating from the bench, which is effectively what the judges in Cueller's case did, is a terrible disservice to society, and to a sense of what is just for the orderly functioning of that society. The reason that is so is that they subverted the rule of law and substituted their own sense of right and wrong for that rule. By doing so, they undermine the respect for law that their positions demand, and also the respect for law that our society as a whole requires in order to remain civilized and orderly. Respect for the authority of law isn't something to be sneered at or taken lightly. It is the very bedrock of our modern civilization. Without it, we have bedlam, chaos, and anarchy.

OK, so Cueller may or may not have gotten what he deserved if you can divorce his consequences from the law and decide that solely on moral or ethical considerations. I don't know how much time in prison causing a pregnant woman to lose her baby warrants, but it's not up to me to decide that. First, it's up to the legislature to define that as criminal behavior, and they failed to do so prior to this case arising. Second, it's up to the judge to sentence a convicted defendant before him within the range allowed by law.

Cueller does indeed illustrate the principle of bad facts making bad law, but that's ultimately because the Texas Court of Criminal Appeals refused to exercise its discretion to hear the case on further appeal from the intermediate appellate court. The lower appellate court's wrongly decided opinion in the case now stands as the law of Texas, and it will continue to serve as binding precedent unless or until it is overruled by another case later. You may not find that to be a bad thing, and it may never serve any practical difference, but at the very least justice has lost in the sense that the judges have deprived a man of his liberty for a long time by ignoring his substantive and procedural due process rights in criminal procedure.

You don't seem to care about the rule of law in that context. I do.

AS

[drkitten]

No one expects a car to drive underwater (except James Bond), so we're not surprised when it doesn't work there. The government does apply laws to situations in which they were not intended to be applied, however.

Well, then the government needs to stop doing that. Duh.


No doubt. That will always be the case. Hence, the origin of the phrase "bad facts make bad law." The lesson one is supposed to learn from that maxim and the cases which illustrate it is that we shouldn't rely on extreme or unusual circumstances in fashioning guidance for the more pedestrian ones. Unfortunately, the appellate rulings in such cases too often end up on the books, and because of their precedential value, they end up being extended to apply to circumstances in which they shouldn't. Contrast this with my above comments in which I was discussing legislation. Here, I'm speaking of common law, or judge-made law.

The real crux of the problem seems, then, to be the fact that judges are too dumb to unmake law. Or they don't do it often enough, or something.

It's not like judges can't make decisions saying things like "such-and-such a precedent doesn't apply because the facts are materially distinguishable from the instant case." It's not even like judges can't make decisions saying "Precedent says I should do X, but that's contrary to common sense, so I'm going to decide Y and if anyone complains, let the Appellate Courts sort it out."

But a judge is never obliged to follow precedent. There's always some fig leaf he can find.

[aerosolben]

The one who died had not yet been born, and was not alive at the time of the offense. The statute itself requires that "another" whose death is caused by the DWI have been born and be alive at the time of the offense. It cannot be any other way and make any sense.
I don't see how this is the case. You keep tacking on the "alive at the time of the offense" without justification. I'm not saying you don't have justification, I just haven't seen it outlined in the context of the thread.

Well, the term "personhood" isn't defined in the statute. This case is about statutory construction -- how do courts construe statutes and apply them.
By "personhood", I of course mean 'meets the criteria for being a human being'. It is shorthand, not an attempt to rework the language of the statute. :)

As those terms are defined in the Texas Code, they don't apply to Cueller's circumstances, not unless we are willing to call an unborn fetus "having been born" and "alive."
The fetus was born, and it's death could easily be shown to be the result of the accident. Do you claim that the birth and death "cancel each other out"?

Let me present a far-fetched hypothetical situation to illustrate my point: A drunk-driver crashes into a support beam of an overhanging hospital wing where a woman is giving birth (but has not yet given birth - the fetus is not a human being). 5 minutes later, the beam collapses, killing the now newly-born child and mother. Assuming the driver is guilty of manslaughter in the case of the mother, is he also in the case of the child? If so, what is the difference between the babies?

That seems true enough factually. The problem with the legal case is that crimes are defined by statute, and the statute charging Cueller with causing the death of another simply couldn't apply to the unborn baby's death.

Emphasis mine. No unborn babies died in this incident - only born babies.

The accident caused the death of a human being, as defined in the statute you cited. You claim they must be alive at the time of the accident, I claim they must be alive at the time of death (in order for death to occur, natch).

[Suddenly]

Most of the trial level judges I've had think they are totally bound by precedent, to the extent that they won't even consider arguments that expand law without a clearly worded opinion from our supreme court (the only appeals court here...)

They are out there...

Maybe it is all the experience, but I've completely lost faith in the general workings of the criminal justice system.

The purposes of the U.S. criminal justice system as a whole, as far as I can tell:

1) Make sure as many poor and minorities as possible have felony records (this increases by an order of magnitude if the prosecutor is a Republican).

2) Make work for people as officers, jail guards, magistrates, etc. Or as one nameless magistrate told me "I think most of this is keeping our statistics up so we don't have to lay people off."

3) Keep the occasional violent criminal off the street.

4) Make up for the abysmal public mental heath system by jailing as many poor mentally ill people as possible.

5) Give people who have inferiority issues powers to abuse.

6) Give better definition to class distinctions.

7) Allow us to bask in the abusrdity of a society where one is considered "strong on law and order" if that person advocates breaking the law in order to convict other people of doing same.

8) Train non-violent criminals to be violent by putting them in the Hobbsian world that is incarceration.


Unfortunately, this is what as a people Americans deserve as long as most of our "news" is people telling us want to think based on what they think we want to hear.

[Suddenly]

As per this case thing, I do agree that the "alive at the time of offense" isn't necessary to have the statute make sense.

The requirement of "a human being who has been born and who is alive" only seems to prevent homicide charges for a kid never born. If the offender sets into motion a chain of events that would cause the death of a child, it is hard to argue a legal bar to prosecution based on the timing of birth. The only question it the factual one of logical and proximate causation.

The "life in being" requirement for a homicide is the interpretation I would find more tortured. If I poison the well and the first person to die from the poisoning is a baby not alive when I poisoned the well, I still killed a living, breathing human being.

Now if the mother drinks it and it aborts the baby, then I didn't kill a kid because an unborn child is not a person, and thus there is no living, breathing, human being killed.

Seems a sensible distinction without any "life in being" type restrictions. Seems more a restriction of the victim than some arbitrary line w/r/t forseeability of a victim in that the "life in being" version seems to also be contrary to the general idea behind transferred intent...

[NoZed Avenger]

It seems to me that the complexity of the example under consideration may be drawing attention away from the principle. This is especially true where we are arguing from a description of the statutes involved, as opposed to the text of the statute (as well as prior decisions interpreting them).

How about a different example taken from my first summary judgment proceeding? This involved an insurance policy issued by a company other than the one I was defending (originally issued in 1963 or so). My company did not issue the policy, never collected any premiums, and had no contact with the Plaintiff. the original company had cancelled the policy in 1964 or 1965 after Medicare was enacted. Because the policy would have substantially overlapped Medicare and would therefore not have actually paid anything, if the company had not cancelled the policy, it would have been guilty of bad faith by continuing to collect premiums on a worthless policy.

----------

Me: I have here three Texas Supreme Court decisions directly on point showing that my company has no duty to the Plaintiff and could not have acted in bad faith as a matter of law.

Judge: Well, what if I disagree with the Supreme Court?

Me: Excuse me? (I was young)

Judge: What if I just don't agree with them?

Me: Well, your Honor, my understanding is that their decision is the law of the state unless the decisions are overturned.

Judge: I think they just got this wrong. Motion denied.

Me: . . .

------

So -- if the original company or mine had collected premiums on the policy, either would be acting in bad faith. But by not collecting premiums and then not paying on a policy that had been canceled some 30 years previously, the company was at risk for the same bad faith filing -- including punitive damages, statutory penalties, and all the fees and expenses you would expect. Because this particular judge decided that he wasn't bound by the law that came before -- he used his personal sense of justice and fairness.

Let me add that this is the only time I have seen this happen, at least out in the open.

But the debate in the thread above above -- and even this example -- obscures the main point.

It doesn't matter to me whether you agree with the negligent homicide decision or even the judge in my case about what is "fair." Sometime, somewhere -- if you allow judges to decide things based only on their own sense of right and wrong -- a judge is going to do something that you wildly disagree with. What if the judge is strongly anti-abortion and you aren't? His personal sense of justice may lead him to declare that the aborted fetus was clearly a person killed by the woman's actions, and she is therefore guilty of homicide. His decision doesn't match the description of the crime? So what -- we're after "justice" here, not following a silly law. We look over that law in order to reach a decision that is "just" and "fair."

Allowing judges that type of unfettered power is great . . . so long as they are perfect and agree with you 100%. But what are the odds of that?

And why even bother to have anything other than an appellate court? Presumably, the appellate justice will have the same ability to decide that is right and wrong (and just) -- so the trial judge hardly matters. The appeals court can simply decide the outcome *it* wants and overrule the trial court at will. We may as well go straight to that step, as there is no reason to prefer a trial court's decision when the appelate judge's sense of right and wrong will be the one in play.

Hell, why not keep going? Why should any decision ever be final? why not take it to another court and ask them to review it. So the statutes say that the court doesn't have jurisdiciton -- who cares? The first court got it wrong, and we are, after all, looking for "justice," not following the law when the result is clearly "wrong."

[AmateurScientist]

I don't see how this is the case. You keep tacking on the "alive at the time of the offense" without justification. I'm not saying you don't have justification, I just haven't seen it outlined in the context of the thread.


Fair enough. Let's actually look at the statute itself, shall we?

Here it is as it existed at the time of Cuellar's offense, complete with a correct citation.

Tex. Penal Code Ann. § 49.08 (Vernon 1994)

49.08. INTOXICATION MANSLAUGHTER.

(a) A person commits an offense if the person:

(1) operates a motor vehicle in a public place, an aircraft, or a watercraft; and
(2) is intoxicated and by reason of that intoxication causes the death of another by accident or mistake.

(b) An offense under this section is a felony of the second degree.

[NOTE: this section was amended effective January 1, 2000 and it reads slightly differently now, but the pertinent parts as they apply to this case remain unchanged from the prior version]

****************

Remember, the DA told us that "another" in subparagraph (a)(2) is defined elsewhere in the Texas Code. We have to look outside this particular statute to find it.

Here is a quote directly from the Cuellar v. State of Texas opinion as cited in the link from the OP:

"Another" is defined in the Penal Code to mean a "person," a "person" is defined to include an "individual," and an "individual" is defined as "a human being who has been born and is alive." Tex. Penal Code Ann. § 1.07(5), (38), (27) (Vernon 1994).

Cuellar v. State, 957 S.W.2d 134 at 137 (Tex.App.-Corpus Christi, 1997).

After reading the actual Cuellar case itself, I have to retract something I said earlier. Usually, at least in my state, criminal statutes are strictly construed. This is because criminal cases apply the highest burden of proof in the law, beyond a reasonable doubt, and doubts should be fairly resolved in favor of the accused. Apparently this is not the case under Texas law. In fact, the Texas legislature has made it explicit in the Penal Code that its provisions are not to be strictly construed, but rather they "are to be construed according to the fair import of their terms, to promote justice and effect the objectives of the code."

The majority opinion notes very early on that, "'Has been born and is alive' does not tell us at what point in time the individual needs to have been born and be alive."

aerosolben, the majority agreed with your read on this issue precisely. The dissent did not, and took the same position I do. I'll get to that in a later post, but first let me note this.

The majority focused on what it declared to be ambiguity in the intoxication manslaughter statute and in the definitions contained elsewhere in the Penal Code and remarked that the Texas definition "has been born and is alive" closely resembles the ancient common law "born alive" doctrine. It then goes on to quote an ancient English case from 1648 discussing such doctrine:

"If a woman be quick with childe, and by a potion or otherwise killeth it in her wombe, or if a man beat her, whereby the child dyeth in her body, and she is delivered of a dead childe, this is a great misprision, and no murder; but if the child be born alive and dyeth of the potion, battery, or other cause, this is murder; for in the law it is accounted a reasonable creature, in rerum natura, when it is born alive."

3 Coke, Institutes 58 (1648).

[I'll return with more discussion of the majority opinion, and a discussion of the dissent later, but it's time for me to go home now].

AS

[Metullus]

I don't think aerosolben intended to raise the issue of ex post facto laws, but I think he did so inadvertently.

In determining whether Cueller committed the offense of intoxication manslaughter (and I haven't read the statute; I'm relying solely on the DA's description of it from the essay), we have to examine the facts of the offense at the time of its commission. The DA tells us in the essay that the offense for which Cueller was indicted and then convicted is intoxication manslaughter, and he tells us that it requires that Cueller cause the death of another, which is defined elsewhere in Texas law as "a human being who has been born and who is alive." The clear meaning of "has been born" is that at the time of the offense, which is the time when Cueller was operating a motor vehicle while intoxicated, that human being had to have been born.

That is clearly not the case in the facts presented to us. The baby was born after the automobile collision Cueller caused. The pregnant woman Cueller hit was rushed to the hospital and delivered the baby prematurely in an emergency C-section. It could not have been born prior to its birth in the ER. Therefore, the baby could not have been born at the time of the offense. Retrofitting the law to the facts in this case requires disregarding the plain meaning of "has been born" in the statute. It also calls into question the meaning of "alive" at the time of the offense. That's the part the DA is referring to when he mentions that the case comes awfully close to being part of the abortion debate. Was the unborn fetus "alive" at the time of the automobile collision? That's a question we could debate medically, but the legal custom as reflected by birth certificates and the societal custom of referring to birthdates both assume that we mean "alive" to refer to the moment of birth itself, not some time before that. My state's birth certificates are entitled "Certificate of Live Birth" for instance. It gives me a headache to ponder how a fetus could be alive prior to its birth. Apparently, however, that is the effect of the Cueller decision. The courts determined in effect that the baby was not only alive, but also "had been born" prior to its being removed from its mother-to-be's uterus in surgery.

Bizarre.

ASI understand perfectly what you are saying and I really appreciate the time and care you are taking in responding.

I have been trying to figure out a way to adequately express my question and I fear I must resort to a fantastic hypothetical, so please bear with me.

My fantastic hypothetical:

I have a really powerful rifle. If I fire it into the air it could take 24 hours for the bullet to return to earth.

On Mardi-Gras (I'm in Beaumont, Texas partying with MdC) I get all liquored up and fire a round into the air. I have committed a crime: Discharge of a Firearm.

Fourteen hours after I committed the offense a woman gives birth to a baby. The baby was not born when I fired the gun. The mother was not even in labor. The baby was not due for another month.

Ten hours after the baby was born, while being transferred into the family car to go home form the hospital, the bullet I fired into the air returns to earth and hits the child, killing it.

Now, I count two crimes, both arising from the same act, albeit 24 hours apart: 1. Discharging a Firearm, and 2. Manslaughter. It is this temporal disconnect that I was asking about in my post. In my read of the OP it would seem that the defense is arguing that because the first offense (Discharging a Firearm) happened before the child was born it precludes reponsibility for what might be seen as a second offence (manslaughter).

Am I missing something else?

[AmateurScientist]

I understand perfectly what you are saying and I really appreciate the time and care you are taking in responding.

I have been trying to figure out a way to adequately express my question and I fear I must resort to a fantastic hypothetical, so please bear with me.

My fantastic hypothetical:

I have a really powerful rifle. If I fire it into the air it could take 24 hours for the bullet to return to earth.

On Mardi-Gras (I'm in Beaumont, Texas partying with MdC) I get all liquored up and fire a round into the air. I have committed a crime: Discharge of a Firearm.

Fourteen hours after I committed the offense a woman gives birth to a baby. The baby was not born when I fired the gun. The mother was not even in labor. The baby was not due for another month.

Ten hours after the baby was born, while being transferred into the family car to go home form the hospital, the bullet I fired into the air returns to earth and hits the child, killing it.

Now, I count two crimes, both arising from the same act, albeit 24 hours apart: 1. Discharging a Firearm, and 2. Manslaughter. It is this temporal disconnect that I was asking about in my post. In my read of the OP it would seem that the defense is arguing that because the first offense (Discharging a Firearm) happened before the child was born it precludes reponsibility for what might be seen as a second offence (manslaughter).

Am I missing something else?

No, you're not missing anything. The majority in the Cuellar case agreed with your understanding and reading.

Apparently, I'm the dissenter here, and so was one of the appellate judges, and he wrote a nice, well-reasoned opinion. The majority relied on ancient common law (although I think maybe they got it backwards from what they intended), and a couple of handfuls of cases from other jurisdictions with similar facts involving later born babies that decided homicide cases similarly.

I think you and others did a very good job of picking up on the distinctions. I just think you're wrong. Like I said, I'm in the minority there, so it's a matter of perspective, and reasonable persons can differ on such matters.

AS

ETA: Oh, and I get your hypothetical. Thanks for helping me understand your point better. What you say makes very good sense. I just don't think the Texas legislature did a good enough job defining "individual" for the courts to have applied it to Cuellar's case.

[Hawk one]

Damn, who would have thought it? An intelligent thread in Politics, of all places.

AS and Metullus and most of the others are highly encouraged to keep it going. This is a good discussion to read (even when one isn't currently informed enough to debate in it), and no mistake.

[RandFan]

Damn, who would have thought it? An intelligent thread in Politics, of all places.

AS and Metullus and most of the others are highly encouraged to keep it going. This is a good discussion to read (even when one isn't currently informed enough to debate in it), and no mistake.Yeah, and sans esoteric language to boot so we can follow along. All for the price of a computer and broad band connection. Screw the porn.

[AmateurScientist]

How about a different example taken from my first summary judgment proceeding? This involved an insurance policy issued by a company other than the one I was defending (originally issued in 1963 or so). My company did not issue the policy, never collected any premiums, and had no contact with the Plaintiff. the original company had cancelled the policy in 1964 or 1965 after Medicare was enacted. Because the policy would have substantially overlapped Medicare and would therefore not have actually paid anything, if the company had not cancelled the policy, it would have been guilty of bad faith by continuing to collect premiums on a worthless policy.

----------

Me: I have here three Texas Supreme Court decisions directly on point showing that my company has no duty to the Plaintiff and could not have acted in bad faith as a matter of law.

Judge: Well, what if I disagree with the Supreme Court?

Me: Excuse me? (I was young)

Judge: What if I just don't agree with them?

Me: Well, your Honor, my understanding is that their decision is the law of the state unless the decisions are overturned.

Judge: I think they just got this wrong. Motion denied.

Me: . . .


He he. I can relate to that. Kind of knocks the wind out of you, doesn't it? Young lawyers can be so idealistic. Who knew some judges don't give a s**t about what the law says?


But the debate in the thread above above -- and even this example -- obscures the main point.


I agree. Our focusing too much on the Cuellar case -- and I have now become the biggest offender in doing so -- is obscuring the point I was trying to make and wished to discuss in the OP. Thanks for noting that and trying to pull the discussion back on track.


It doesn't matter to me whether you agree with the negligent homicide decision or even the judge in my case about what is "fair." Sometime, somewhere -- if you allow judges to decide things based only on their own sense of right and wrong -- a judge is going to do something that you wildly disagree with. What if the judge is strongly anti-abortion and you aren't? His personal sense of justice may lead him to declare that the aborted fetus was clearly a person killed by the woman's actions, and she is therefore guilty of homicide. His decision doesn't match the description of the crime? So what -- we're after "justice" here, not following a silly law. We look over that law in order to reach a decision that is "just" and "fair."

Allowing judges that type of unfettered power is great . . . so long as they are perfect and agree with you 100%. But what are the odds of that?

And why even bother to have anything other than an appellate court? Presumably, the appellate justice will have the same ability to decide that is right and wrong (and just) -- so the trial judge hardly matters. The appeals court can simply decide the outcome *it* wants and overrule the trial court at will. We may as well go straight to that step, as there is no reason to prefer a trial court's decision when the appelate judge's sense of right and wrong will be the one in play.

Hell, why not keep going? Why should any decision ever be final? why not take it to another court and ask them to review it. So the statutes say that the court doesn't have jurisdiciton -- who cares? The first court got it wrong, and we are, after all, looking for "justice," not following the law when the result is clearly "wrong."

Well said.

I might add that the Supreme Court has been guilty of ignoring law and making s**t up to get to the just result they wanted too, as all of us US lawyers know. Griswold v. Connecticut, 381 U.S. 479 (1965)(striking down Connecticut's ban on the use of any drug or article to prevent conception as unconstitutional because it violated married couples' right to privacy in the bedroom) is the first case that comes to mind, and to me the most prominent modern one. Although I favor the result of the decision, the simple fact is that the whole penumbra theory is a bunch of BS Justice Douglas, eloquent as he was, simply pulled out of his ass to invent a heretofore nonexistent constitutional right to privacy. There were three other concurring opinions, not as well reasoned, that "discovered," or rather found clever ways to invent, a right to privacy that simply isn't in the US Constitution. Go ahead, look for it. Nowhere will you find it in the text or body of the document. Nevetheless, because the Supreme Court said it's there, it's there.

Law and justice -- not equivalent, and not always comfortable with each other.

AS

[AmateurScientist]

Yeah, and sans esoteric language to boot so we can follow along. All for the price of a computer and broad band connection. Screw the porn.

He he. You realize of course that this is porn for me. Discussing deep and weighty legal issues and struggling with applying them to difficult facts is one of the things that floats my boat. It's why I went to law school and became a lawyer -- so I could argue to my heart's content with other bright people (some brighter than others) about non-trivial stuff. Generally, I don't care how the Braves are doing this season. It's meaningless in the scheme of things, and I just don't have a passion for it. I do have a passion for the law and government and how they interact and how they impact real people in every day, real world situations.

I'm glad you're enjoying this. I was actually afraid no one would find any interest in it, and it would quickly drop off the front page. I'm glad it hasn't.

AS

[Metullus]

No, you're not missing anything. The majority in the Cuellar case agreed with your understanding and reading.

Apparently, I'm the dissenter here, and so was one of the appellate judges, and he wrote a nice, well-reasoned opinion. The majority relied on ancient common law (although I think maybe they got it backwards from what they intended), and a couple of handfuls of cases from other jurisdictions with similar facts involving later born babies that decided homicide cases similarly.

I think you and others did a very good job of picking up on the distinctions. I just think you're wrong. Like I said, I'm in the minority there, so it's a matter of perspective, and reasonable persons can differ on such matters.

AS

ETA: Oh, and I get your hypothetical. Thanks for helping me understand your point better. What you say makes very good sense. I just don't think the Texas legislature did a good enough job defining "individual" for the courts to have applied it to Cuellar's case.Lord knows I have been wrong before...

I have been thinking about how the case at hand differs from my hypthetical and it occurs to me that the problem, and the solution as well, might be in one little detail: in my hypthetical not only is the child killed after birth, but the proximate cause of death occurs after birth (the bullet striking the child), while in the case at hand that which ultimately causes the death of the child occurs before birth (the trauma of impact), while only the death itself happens after the child is born. Is this, in fact, the important distinction?


ETA: I know that this is a digression from the OP (I think that the discussion is far too educational to be dismissed as a derail), but...

[aerosolben]

I think you and others did a very good job of picking up on the distinctions. I just think you're wrong. Like I said, I'm in the minority there, so it's a matter of perspective, and reasonable persons can differ on such matters.
Fair enough. I perceived your position to be that the majority position was a flagrant abuse of jurisprudence, and I wished to defend what seemed to be a reasonable legal decision (or determine what influenced your own position).

Personally, I agree with you - I dislike the precedent it sets, and I believe that politics and mob rule may have been more responsible for the decision than respect for legal precedent.

Also, let me echo other in thanking you for giving us some professional insight. I have great respect for the American legal tradition and always appreciate a deeper look into how it works. I also watch too much Law & Order. ;)

[aerosolben]

I have been thinking about how the case at hand differs from my hypthetical and it occurs to me that the problem, and the solution as well, might be in one little detail: in my hypthetical not only is the child killed after birth, but the proximate cause of death occurs after birth (the bullet striking the child), while in the case at hand that which ultimately causes the death of the child occurs before birth (the trauma of impact), while only the death itself happens after the child is born. Is this, in fact, the important distinction?
There is another important distinction that may push one towards AS' opinion: whether or not the proximate cause of death influenced the birth itself. Both of our hypotheticals posit causes of death independant of the birth, while the case in the OP has a birth induced because of the proximate cause.

I ignored this angle previously because, despite the clear distinction, I can't see how this would influence the decision of manslaughter. But IANAL, so perhaps others would know better.

[Metullus]

There is another important distinction that may push one towards AS' opinion: whether or not the proximate cause of death influenced the birth itself. Both of our hypotheticals posit causes of death independant of the birth, while the case in the OP has a birth induced because of the proximate cause.

I ignored this angle previously because, despite the clear distinction, I can't see how this would influence the decision of manslaughter. But IANAL, so perhaps others would know better.I considered that as well but I figured it unlikely that the circumstances of the birth would have any bearing on the question.

I too, would be interested in hearing any opinons on the matter.

[JamesDillon]

I might add that the Supreme Court has been guilty of ignoring law and making s**t up to get to the just result they wanted too, as all of us US lawyers know. Griswold v. Connecticut, 381 U.S. 479 (1965)(striking down Connecticut's ban on the use of any drug or article to prevent conception as unconstitutional because it violated married couples' right to privacy in the bedroom) is the first case that comes to mind, and to me the most prominent modern one. Although I favor the result of the decision, the simple fact is that the whole penumbra theory is a bunch of BS Justice Douglas, eloquent as he was, simply pulled out of his ass to invent a heretofore nonexistent constitutional right to privacy. There were three other concurring opinions, not as well reasoned, that "discovered," or rather found clever ways to invent, a right to privacy that simply isn't in the US Constitution. Go ahead, look for it. Nowhere will you find it in the text or body of the document. Nevetheless, because the Supreme Court said it's there, it's there.

I agree wholeheartedly. I think the real penumbra of Griswold-- the shadow that stretches to the present day-- is found in Justice Harlan's concurring opinion, in which he argued that the Fourteenth Amendment stands as an independent source of substantive rights binding on the states, rather than merely incorporating those provisions of the first eight amendments that are deeply embedded in the history and traditions of the nation or implicit in the concept of ordered justice. (Harlan first argued the same thing in Poe v. Ullman, but it really caught on after Griswold). I think the reason the Griswold majority got caught up in all that penumbra nonsense was because it still viewed the Fourteenth Amendment as merely incorporating the substantive provisions of the Bill of Rights, not as an independent source of protected liberty interests in itself. What we see after Griswold-- the first major case being Roe v. Wade-- is that the Court is no longer divided about the significance of the Fourteenth; it tacitly accepts Harlan's view, and from there on applies what had been a test for determining which of the specific provisions of the Bill of Rights the Fourteenth Amendment incorporated against the states-- history and traditions, implicit in ordered liberty-- as an independent test for identifying "fundamental" liberty interests protected by the Fourteenth Amendment, and that needn't be explicitly stated elsewhere in the Constitution. Roe, Casey, and Lawrence v. Texas (among others) followed directly from the one doctrinal move of untethering the Fourteenth Amendment from the Bill of Rights.

I'm in the midst of writing a law review article-- we'll see if it ever gets finished-- arguing among other things that the Griswold era is to social legislation a parallel to what the Lochner era was to economic legislation: a period of unprincipled and arguably abusive interference by the Court in matters more properly left to the political branches. Mind you, I'm fully in favor of abortion rights and the liberalization of anti-sodomy laws, but it does seem like an indefensible abuse of power for the Court to strike down state legislation on the basis of fundamental rights that only five Justices can see.

Edit: A couple of years ago I was watching an episode of Law & Order with a couple of non-lawyer friends; I don't remember exactly what the episode was about, but for whatever reason, McCoy was appearing before the Appellate Division to argue for the existence of some fundamental constitutional right that wasn't explicitly stated in the relevant constitution (I don't recall if it was the state or federal constitution he was arguing about). Just as he was getting started one of the justices asked, "You're not going to talk about penumbras, are you? I hate penumbras." I nearly fell out of my chair laughing, while my friends gave me an odd look of complete non-comprehension.

[JamesDillon]

You seem to assume an awful lot, but then, fancy that, I've argued that with you previously, too.
To the contrary, I assumed nothing, but expressed my assessment on the basis of the available evidence, in this case your own words. Feel free to try to change that assessment. I note, though, that you didn't bother responding to the bulk of my last post. Fancy that; I think I spent about two pages in our last discussion trying to get you to answer a simple question about your own position before finally concluding that, when painted into a corner, you simply refuse to respond.

[shuize]

Just as he was getting started one of the justices asked, "You're not going to talk about penumbras, are you? I hate penumbras." I nearly fell out of my chair laughing, while my friends gave me an odd look of complete non-comprehension.

I can relate to many of the experiences noted above. First, let me agree that I think the whole "penumbra" idea is dumb and I'm glad to see it falling out of favor.

Second, I've been out of the legal field for several years. But as a young lawyer I had similar experiences standing up in front of judges who'll do damn well whatever they please.

Not quite as extreme as a judge ignoring Supreme Court precedent, but many years ago I had a case in which my client and several other juveniles were invited over to another kid's house. While inside the burglar alarm went off and police responded. The kid that invited everyone over told them not to worry then went outside and talked the cops into leaving by telling them it's his uncle's place. Apparently the burglar alarm reset and some time later went off again. The same kid, who turned out to be a criminal mastermind of the highest order, met with the very same cops (who you might think were growing a little suspicious by then) and talked them away a second time. All would have been well too if, right as the cops were leaving, the real owner hadn't showed up. Yes, that's right, the real owner who the police themselves told, "nothing to worry about ma'am, your nephew's inside." Only problem was, she didn't have a nephew.

The criminal mastermind convinced everyone -- police included -- that it really was his house.

My client was charged with burglary. We argued no intent and called the cops, one a 20 year veteran, who were both very helpful and completely honest about being scammed, to testify that the mastermind totally fooled them.

Judge: "Guilty."

Us: "But there was no intent to commit burglary" (more specifically, no intent to commit a theft inside the dwelling -- a key element necessary to prove burglary).

Judge: "They were inside, weren't they?"

[NoZed Avenger]

Fair enough. I perceived your position to be that the majority position was a flagrant abuse of jurisprudence, and I wished to defend what seemed to be a reasonable legal decision (or determine what influenced your own position).

And let me chime in brifly on the side issue: as conservative as I am, I agree with the dissent and AS here, not because it is the only result that is reasonable, but because this is a criminal case and ambiguities or unclear applications should not be used to deprive people of freedom or their lives, IMO. Any time you have to stretch the law in a criminal case to reach a defendant, I get uneasy -- despite my "law and order" leanings in general.

ETA: I also find the court's dance around the language "a human being who has been born and is alive" to be a bit . . . strained. It seems from context that "has been born" applies to the time of the crime itself.

[The Atheist]

In fact, the Texas legislature has made it explicit in the Penal Code that its provisions are not to be strictly construed, but rather they "are to be construed according to the fair import of their terms, to promote justice and effect the objectives of the code."Well, would you look at that!

[The Atheist]

To the contrary, I assumed nothing, but expressed my assessment on the basis of the available evidence, in this case your own words. Feel free to try to change that assessment. I note, though, that you didn't bother responding to the bulk of my last post. Fancy that; I think I spent about two pages in our last discussion trying to get you to answer a simple question about your own position before finally concluding that, when painted into a corner, you simply refuse to respond.Never mind replying to your last post, I didn't even read it. One assumption in the first sentence was enough for me, and sheesh, would you credit it, if you have a look at the post above, I was right all along!

Cheers, and I see you're still admitting to not having a clue what we were discussing last time around.

[The Atheist]

OK, I see what you're getting at better now. Thanks. Oh, and by the way, you asked me to explain. You forfeit the right to complain about my explaining once you ask, particularly since you didn't ask a precise question.I'm just surprised you didn't charge me by the minute!Anyway, I think now that you are right to point out that perhaps Cueller illustrates the opposite of my noting that sometimes a strict application of the law yields an unjust result. There is another way of regarding "justice" here, however, without getting bogged down in "legal jargon," as you derisively refer to it.I'm not actually deriding anything, it's just the way I talk/type.

One thing does strike me in the whole case - 16 years for manslaughter by drunken driving. I guess Texas having the death penalty for murder raises the stakes, but 16 years seems to be a helluva long stretch. Over here, he would have copped 2 - 3 years for the same offence.

Anyway, you have a very popular discussion going, so I'll now let it to get back to where it was - cheers.

[JamesDillon]

Judge: "Guilty."

Us: "But there was no intent to commit burglary" (more specifically, no intent to commit a theft inside the dwelling -- a key element necessary to prove burglary).

Judge: "They were inside, weren't they?"

I hope that was overturned on appeal, but I have a feeling you're going to tell me it wasn't.

[Almo]

VERY interesting here. Maybe this should go on the featured threads thingy?

[drkitten]

I hope that was overturned on appeal, but I have a feeling you're going to tell me it wasn't.

I think that's the key observation that I'm taking away from it.

It's not that bad facts make bad law.

It's that bad appellate judges make bad law.

[shuize]

I hope that was overturned on appeal, but I have a feeling you're going to tell me it wasn't.

No. One of those cases that was blindingly obvious (to me at least) at trial but was going nowhere on appeal. My story left out the fact that the kids did eat and drink food given to them by the juvenile mastermind while inside the house -- enough for the judge to conclude "intent to commit theft" despite co-counsel and my attempts to point out that under such logic if someone invited you over to dinner but turned out not to own the house, you would be equally guilty of burglary.

In the end, however, after my client was committed to the state we managed to get the point across to the Department of Juvenile Justice worker in charge of his case that the whole thing was bullsh't and they just kept him on probation without any more serious consequences.

Juvenile client. No permanent record. A factual determination by the judge with no serious consequences at stake.* We let it go. But it's one of a few cases that still bothers me all these years later.

* For the non-lawyers, findings of fact made at trial are shown considerable deference by appellate courts.

[AmateurScientist]

I think that's the key observation that I'm taking away from it.

It's not that bad facts make bad law.

It's that bad appellate judges make bad law.

I don't think that's fair. The Cuellar case was decided by a 3-judge panel. Two judges agreed with each other, and the dissenting judge didn't. The majority and dissenting opinions are both well written, and I can't say the two judges in the majority are "bad." I think they used a tortured analysis to reach their decision, but that doesn't make them bad. They've probably written good opinions and made good decisions in plenty of other cases.

What I get from these kinds of tough cases is that they're tough emotionally, and because of that they can go either way when you let notions of justice and fairness override the black letter law.

AS

[geni]

He's out:


A judge ordered H. Beatty Chadwick's release from a county prison in suburban Philadelphia more than 14 years after he was jailed for refusing to turn over millions of dollars in a bitter divorce battle. The case prompted dozens of appeals to county, state and federal courts, twice reaching the U.S. Supreme Court.

http://ca.news.yahoo.com/s/capress/090710/world/us_jailhouse_millionaire