The closing scene from Alfred Hitchcock’s Psycho:

What makes that scene particularly creepy for me is the last fraction of a second of the shot of Norman Bates’s face. Just before dissolving to the shot of the car being pulled out of the lake, Hitchcock superimposed an image of a skull over Norman’s face. I don’t know if I would have seen it, or known what I was seeing, if I weren’t looking for it; I might just have been generally creeped-out.

Here is a blog post (from New Mexico appellate Prosecutor Joel Jacobsen’s Judging Crimes blog) that had the same effect on me. (Thanks to Kirk Chavez’s Issues and Holdings blog for recommending Judging Crimes, which is very well-written). Joel talks about the public perception of lawyers, and argues that “the public perception that lawyers do these kinds of things is nonetheless perfectly accurate. The problem isn’t that the public doesn’t know what lawyers do, but that it knows all-too-well what some lawyers do.”

Here is one of the two examples Joel gives of “these kinds of things” that some lawyers do:

Nor is it true that most lawyers “spend too much time finding technicalities to get criminals released”, as an ABA survey found 73% of Americans believe (page 7).

There’s that skull floating there — am I the only one who sees it? Joel says that some lawyers spend too much time finding technicalities to get criminals released.

As an appellate prosecutor, I’m sure Joel spends lots of his time looking for “procedural default”, the many ways that a defendant can lose his freedom by not jumping through all of the hoops of preserving error. Yet I’m confident that Joel doesn’t refer to procedural default as “a technicality.” The 73% of Americans who think lawyers spend too much time finding technicalities no doubt think Joel spends just enough (or too little) making criminals’ lawyers follow the rules.

“Technicality” is a subjective pejorative. One man’s technicality is another man’s rule. A technicality is a rule that leads to the wrong result. Those who resent the time we spend “finding technicalities to get criminals released” would likely approve of the time Joel spends “making criminals’ lawyers follow the rules.” Do prosecutors spend too much time making criminal lawyers follow the rules? No. Do they spend too much time finding technicalities to keep people in jail? Sure.

Polls are a funny thing. The wording of the question is everything; a pollster can load his questions to get any result he wants. In the poll cited by Joel, the ABA asked, “Do you agree or disagree that lawyers spend too much time finding technicalities to get criminals released?” and 73% said they agreed. If they had instead said “Do you agree or disagree that lawyers spend too much time protecting people’s freedom?”, fewer people would have agreed.
Some people see the warrant requirement as a “technicality”; some see the exclusionary rule as a “technicality”, some see the requirement of a valid indictment as a “technicality”, and some some people undoubtedly see the requirement of proof beyond a reasonable doubt as a “technicality.” Criminal law is not about “right and wrong;” it’s about rules. When the government doesn’t follow all of the rules, it sometimes (not often — courts usually will give the government a free pass) loses.

I have never had the family of a client complain that I was spending too much time finding technicalities to free their loved one. Is it possible that the ABA found 450 randomly-selected Americans, 73% of whom had never had loved ones benefit from the services of a criminal-defense lawyer? Of course not. When they’re in that position, they know that what defenders are really doing when they’re “finding technicalities to get criminals released” is making the government’s lawyers and agents follow all of the rules before determining who the “criminals” are and putting them in jail.

Trying to keep people out of jail is what the market pays us for. If you want us to spend less time trying to keep people out, stop paying the government so much to put people in. Until then, I don’t object to lawyers who spend too much time “finding technicalities,” but to those who spend too little.
“Finding technicalities to get criminals released” is how those who don’t approve of our existence describe what we do. I’d like to see Joel, who is determined to “engage not just with the expressions of judicial power, but with the assumptions on which those expressions rest,” engage with the assumptions on which his post rests.

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0 responses to “Technicalities”

  1. Here is a HARD fact that I had to learn to deal with after a year of being a prosecutor —— the best defense attorney’s I have been up against are the ones that scour the files, checking dates, checking the exact wordings on warrants, checking filing dates, checking names over and over again.

    Making sure all i’s are dotted and t’s are crossed. Making sure that all rules are followed.

    They frustrate the hell out of me. At the time, when they are doing it, I can’t stand it. Sometimes, to be honest, I can’t stand them.

    But, I always think to myself, Christ if I ever need an attorney, this is how I want my attorney to be.

    As a prosecutor, when a slight rule violation is pointed out to me by a defense attorney, I think “technicality.” As a defendant, I would tell my attorney “make sure they follow the RULES to a tee. DO NOT GIVE THEM A BREAK.”


  2. Public memory being short I don’t use this anymore, but I used to remind folks that Kay Bailey Hutchinson was the beneficiary of a “technicality”. If it was good enough for her, it ought to be good enough for my clients.

  3. Technicalities being a bad thing smacks of the same thinking that says “if the prosecutor brought charges you must have done something wrong”. I guess there’s this whole notion out there that only people who commit a crime get caught in the dragnet of law enforcement and the judiciary. What they forget is that too often people who have done nothing wrong and subject to the vagaries of prosecutorial negligence. At the same time though – there are people who do inherently bad things and are brought to trial to answer for their crimes but therein lies the great thing about this country – we labor (at least in theory) under the notion that someone is innocent until proven guilty, that one generally has the right to confront their accuser etc, and a host of rights as afforded by the constitution because we believe in rules. Not liking technicalities is like playing a game with your rules and then not liking how they turn out for you in the middle of the 4th quarter.

  4. It’s a good analogy; one point I was trying to make is that “technicality” is a term of disapprobation. It’s not that people like some technicalities and dislike others; rather, it’s that the rules they like are rules and the rules they don’t like are “technicalities.”

  5. Funnily enough, my comment about the ABA poll began with “Nor is it true that …”

    I think your post actually says the same thing as the little aside in mine. This is why I think that:

    (1) Some people commit acts of violent cruelty and escape criminal punishment for them. No one would deny that.

    (2) Most of the time, lawyers have nothing to do with that result. But you provide many excellent reasons why lawyers sometimes have an ethical duty to contribute to it.

    (3) For the very reasons you give, members of the public aren’t mistaken when they express their belief that lawyers contribute to that result.

    (4) PR efforts by state bar associations will never convince the people otherwise (which is all that the original post was actually saying).

    If you read my blog regularly, as I invite you to do, you’ll notice that it doesn’t go after defense lawyers. Lawyers who represent their clients honestly get no criticism from me.

    But how did you know I wear my skull outside my skin? Have we met?

    — Joel

  6. A criminal is someone who has committed a crime, not someone who has been convicted. That would make them a convict. Criminal defence lawyers are the worst, slimiest, nastiest, manipulative, evil, selfish and morally devoid pieces of work in civilised society. At least the bankers don’t look people in the eye across a room as they dole out their technically just injustice. Kirk Chavez has it completely right. I am privy to stories of injustice, particularly domestic abuse cases, that would make your sanctimonious toes curl, and you wouldn’t dare look me in the eye as I told you them. All because someone missed a box check, failed to dot an i or cross a t. It’s pathetic.

    • “Wouldn’t dare” is tough talk for someone who hides behind ‘Anon’. Some might say it’s pathetic

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