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      August, 19th, 2009


  Republication of article written in 1995.



  First published in 1995, I read this again and realize that many years ago I saw the fallacy of our legal system early on. Yes its a great system relative to the rest of the world but its greatest weakness is that it is run by men and women. 

   In business school we are told of an interesting lore of business where an American company orders 10,000 door panels from a Japanese manufacturer.  The terms allow for a 3% defective rate. The order arrives with a neatly packaged aside with a note that reads "we do not know what you need these defective door panels for but here they are as you requested".  In business it alerted Americans that we were looking at the assembly line askew.

   In law, it is much more alarming.  It can not be denied that our system is akin to an assembly line. The process begins on the street with a police officer. The arresting officers training vary from city to city and department to department.  This is handed to a new judge who sets bond and usually a brand new prosecutor as such menial tasks as bond and charging the defendant is delegated to the lower echelons.  Once charged the defendant meets his trial judge which in smaller jurisdictions is the same judge.  A more experienced prosecutor then takes the case.  Each case carries with it a vast array of differences involving human input. Most important is the variance of the human element involving evidence, whether it is the witness or the scientist. Credibility and ability to be accurate varies greatly amongst all humans.  This amorphous body of facts in a case is sifted and shaped by a judge who has a varying level of character and ability. It is no surprise that some judges are conservative and some are liberal. Both may tend to skew, and I use 'tend' lightly, the evidence to conform to their beliefs.

   This amorphous body of fact, which started at the hand of the sometimes unintelligent and sometimes intelligent officer, sculpted by the sitting judge, is then presented to twelve humans with varying degrees of character and ability.  Each of these humans view on life is grotesquely shaped by an industry whose job it is is to keep that person shocked and stimulated. In a few short days the legal process attempts to shed jurors misconceptions of a lifetime of Perry Mason, CSI, and other shows which have little relation to reality.

  This amorphous body of fact has narrators. In some instances those narrators are less then honorable. I should say in many instances.  There is the prosecutor who hides evidence which will give the amorphous shape a truer ring. There is the defense lawyer who has hidden contempt for his client and is more then willing to see him down the river and thus fails to shed light on parts of the amorphous body of what is the animal which has been borne of this process. 

  Of course this is all reviewed on appeal. Many appellate courts have no experience in criminal matters. Many states do not have criminal appeals courts but have general courts which hear all cases. Add to that the very real fact the judges predisposition has a real effect. We see how political the appellate court may be every time a new supreme court justice is appointed.  At a party of appellate court clerks, a story was overheard. The story was that on the clerks first case she wrote the opinion and the result favored the defendant. The judge turned the case away and informed the clerk she had done it wrong. Do it again. She did. The next draft came down on the side of the state.  This is no surprise. It likely happens the other way too.  Corbin and Willston have been discussing this dichotomy of judges effect on cases for decades.

  This is the assembly line. What is the error rate of this assembly line?  In Illinois 50% of death row were freed as being wrongfully convicted.  Forget about that for a moment. If 50% is the error rate for death row what is the error rate for the armed robbery cases? for the sex cases? for drug cases?  Death row cases get all the attention the court will allow. Either side needs more time to do some act it is granted. The evidence is poured through with great interest. Another expensive test? Done.  The possession of 2 grams of cocaine? More time is needed to investigate? Denied.

  If the machines generate 3% defective rate on a regular basis and have no personal interest, have no bias, no hidden agenda, do not tire, and did not have a family member fall victim to a similar crime what is the error rate for our system? Add to that 50% defective rate in death row cases what is the failure rate for the rest of the cases?


   The overriding purpose of the law it seems is to reign in our spirit to effect the outcome.  Like logic to someone who is passionate. It is the medicine for the illness. The human illness is the desire to view all one way or the other. Logic thru the law is the cure.  Most all evidentiary rules are aimed at this cure.




It occurred to me that there are many very old maxims of law which have been "overturned" or have been carved up to meet "societal demands". Often, sayings like "traditional is not necessarily just" are developed to advance "better" and more sound reasoning. In evidence we learn that "any competent attorney can get evidence admitted under a hearsay exception". The rule which protected the accused or the defendant is now riddled with holes such that classmates exclaim "How idiotic, why do we even bother? If any competent attorney can get in evidence under a hearsay exception why should we have or learn it?". I am not claiming to have discovered that the hearsay rule is ineffective, many law review articles have claimed just that. I am not trying to advocate for the accused. Reasoning of courts have fallen by the wayside to achieve their goal, their so called "agenda". What stood as a "sound" rule for so many years is done away with in a relatively short period time.

     In Constitutional law we learn how Ollies bar-b-que is forced to adhere to the Commerce Clause to implement anti-discrimination legislation. The Court makes what seems to be local activity national in scope. Smoke, mirrors and an excellent command of the English language are implemented to do what the court feels necessary. I am not opposing anti-discrimination legislation. I am opposing double-speak in the courts.

    We learn that the court in Rodriguez v. San Antonio has ended the courts review of federal intrusion on the states rights. The Court does a dog and pony show, a good one I might add, to justify their position. What is amazing is that the reasoning makes sense when you follow the bench's lead. Not just in San Antonio but in many cases the court uses some good footwork to reach their desired result. When you do second and third analysis it becomes clear that some points are going unanswered or unaddressed. I doubt its for a lack of intelligence, in fact its more of an exhibit of great intelligence. To reach granmas house without going through the woods or meeting the wolf is no doubt a great feat. All to allow the Federal Government control over a cities actions in implementing minimum wage law. I am not saying that I oppose a minimum wage law.

    I'm sure the Republicans in the reading public are thinking "Yea! what an unfounded promotion of liberal ideology which is the epitome of big government". However, liberal and conservative positions are advanced using the same highway of analysis. The Federal Government "enforced" drinking age laws by withholding highway funds from states. South Dakota sues claiming a violation of the Twenty-First Amendment. The Court reaches the end by paving the means. Law reviews and Professors critique the analysis like a high dive competition. The State is found to not have been coerced. Thus the governments actions are upheld to further the idealogy of preventing underage drinking. I am not opposing the end of drunk driving or underage drinking.

     To look back and say well it was a liberal congress or a conservative congress or court which allowed such activity is unsound. To assume that a "conservative" congress never passed a "liberal" bill or vice versa is foolish. It is not just at the level of federal government. In state and federal courts the Fourth and Fourteenth amendment have been battered back, into the home by the same plethora of exceptions which did in the hearsay rule. The Automobile exception, Belton search, Inevitable Doctrine etc. etc. have descended upon the amendments for "good public policy" at the cost of sound reasoning and conformity with the Amendment as enacted. There once was a saying promoted in law schools that "it is better that a thousand guilty men go free than one innocent man be convicted". The saying is not necessarily in the advancement of accused rights but also the recognition that to adhere to a rule on a rational, reasonable, logical, basis will necessarily have costs. Oh yes, it is because at the time they could not have foreseen such technology and societal advances as we encounter today. No we mustn't adhere to traditional or antique rules to the frustration of sound government. A traditional rule which is in opposition to sound reasoning should be done away with, not the reverse. It seems that "conventional", "more workable", rules are implemented in place of sound reasoning.
One party uses the government to advance its rights of the individual. The other screams less government but advocates more police, more courts and more jails. For whatever the reason, each side advances what is necessary and proper for their interests without considering what is good for the whole, for the healthy continuance of our great society.
The bench is too hung up with politics and not with sound reasoning. Or maybe they are not into politics enough. Who am I to ask when I advance some sort of political verbiage myself.
Nonetheless at some point an overreaching administration, is corrected by the seditious who feel that they have been overtaken, ask Thomas Jefferson, Benjamin Franklin, John Hancock.

-Jason R. Epstein



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