Robert (gurdonark) wrote,

the problem with a well-ordered system of laws

I tend to have a prejudice against the Court TV approach to legal analysis, in which camera-hungry former prosecutors issue (often inaccurate) snap judgments about reports of reports of the facts of cases. I frequently think that in our imperfect adversarial adjudicatory system, which I believe in the main works quite well, the finder of fact and the judge who applies the law to the facts so found should (and do) receive a deference on difficult determinations, so that matters other than issues of pure law are wisely left to the person(s) sitting in the courtroom hearing all the evidence, and not to bleached-hair "legal analysts" who seem more a satire than Stephen Colbert.

This week's developments in the case against Zacarias Moussaoui give me sufficient pause to relax my "leave it to the judge and jury on issues of fact" view. Before I begin expressing my concern, though, let's get a few givens out of the way. By all accounts, including his own admission, the only issue about Zacarias Moussaoui is merely the degree to which he succeeded at being a terrorist. He's pleaded guilty to conspiracy to commit horrible acts, and despite the stench/whiff of madness about his person, I feel that even under a fairly liberal standard of what is insanity, even if insanity had been pleaded, he should be sent to prison for life. Despite my recognition of the eccentric humanity about his absurd and sometimes wilfully abstruse pronouncements, I am not concerned in particular about Zacarias Moussaoui, a man who needs to be in jail forever at the very least. I am concerned about the rights of the victims of the terrorism which people less eccentric and more successful than Zacarias Moussaoui managed to perpetrate. Also, although I personally oppose the death penalty, let's set that aside, as the death penalty exists, and if I am to do any "apples to apples" analysis, I must assume that it is on the table.

This week the prosecution in the Zacarias Moussaoui had to go to the judge and announce that the worst had happened. In the midst of their death penalty case against Zacarias Moussaoui, a lawyer employed by the FAA had, contrary to the judge's orders, coached a set of FAA witnesses, including sending witnesses copies of trial transcripts. The judge reacted appropriately in the first instance, calling for an evidentiary hearing on the issue. The evidentiary hearing went particularly poorly for the government, resulting in the uncovering of a series of violations, including, apparently, alleged attorney dishonesty about whether witnesses were discussing or willing to discuss matters with the attorneys.

I don't like to talk intense law in weblogs, because I am very aware of the problems inherent if anyone uses a weblog for legal advice. For one thing, I am licensed in only 2 states, and I have weblog friends in a zillion. For another, I do not serve as anyone here's attorney. For a third, to get at a point in ordinary dialogue, I frequently shorthand concepts with a broad brush, without applying the precision I apply when I do practice law. Yet I think that I can say without anyone thinking they are getting a law consultation, that in trial work, the notion that one does not let witnesses who have not yet testified know about what testimony has gone before is so ingrained in litigation that the particular rule of evidence is almost universally enshrined during trial as "The Rule". When any lawyer says at the beginning of trial "I invoke The Rule", all the lawyers know that means "no telling the witnesses about the testimony". In the case against Zacarias Moussaoui, the judge's pretrial orders went a step further, barring witness preparation in ways that The Rule might not reach.

To what extent should a prosecution suffer because the government has violated the law? It's an age-old question. Should a 9/11 widower be deprived a chance to see an ultimate sanction be imposed upon a defendant because an FAA lawyer commits an egregious mistake?
It's not an easy question, particularly when the defendant is a Zacarias Moussaoui.

Yet I must say that I was surprised to hear that Judge Brinkema, a capable, fair-minded judge, had imposed a sanction less than taking the death penalty off the table. She struck witnesses, issued various other sanctions, but left the government with a chance to try to go to trial rather than imposing a life sentence. Rather than breathing a sigh of relief at this reprieve in the face of what the judge found to be "egregious" misconduct, the prosecution did what advocates are supposed to do, and starting fighting immediately to get the judge to change her mind and lessen the sanctions. The word came down today that the judge had relented in some minor but important ways.

I do not write this post to attack Judge Brinkema, who is trying to balance her call in a difficult situation. I certainly don't blame the prosecutors for trying to salvage the wreck that government misconduct caused to their case. That's their job, after all. I don't need to spend any time talking about what palpable impropriety needlessly created this prosecutorial pickle, as it's an oft-sung song.

Yet I do express the concern that judges watch the Watchmen. When the EPA decided that it could issue regulations to turn the Clean Air Act on its head, a different federal court this week ruled that laws have the odd way of sometimes meaning what they say, and not what a corporate-indebted administration wishes they said. When law schools decided that they had a constitutional right to government funding despite flouting a law which required them to allow the military to recruit on-campus as a condition of the funding, the US Supreme Court unanimously ruled that no such right exists. Both these cases "gored oxen" of in the former case big business and in the latter case, of those of us who wish to see an end to homophobic discrimination by the military. Yet the courts ruled correctly in both those cases, because neither government nor even law schools are above the law, whatever their view of the "right way to do things" may be, and even regardless of whether they are "right" or "wrong" in their opinions which motivate their legal transgressions.

I ordinarily defer to Judge Brinkema, in my opinion as well in in fact, to choose the most appropriate sanction for government misconduct. But when she found as fact, as she did, egregious government misconduct, then to me the sanction was simple. When the state
commits pervasive error which prejudices the system, the system requires ultimate sanctions to protect the orderly administration of justice. In this case, that would mean sentencing Zacarias Moussaoui to life in prison without parole.

We live in a system of laws. Sometimes politicans forget that, and then we get warrantless wiretaps in violation of statute, and presidents who swear under oath at a deposition the opposite of the truth. People try to excuse wrongdoing with "higher justifications"--I'm old enough to remember well the smirking Oliver North all but bragging to Congress that he had lied under oath, participated in a violation of the law, and that it was all justified by the notion that a bush war in El Salvador and Nicaragua affected, in his view, th heart of national security. People still excuse Mr. Clinton his error merely because his subpoena was issued by political partisans.

I am from a school of thought that holds that the integrity of the system transcends the fate of even Zacarias Moussaoui. A system of laws is what protects us from the tyranny of government, and protects us from private tyranny through government. A judge in Indiana throws out religious propaganda masquerading as science, even when a majority of Americans believe in the propaganda rather than the science. Judges in California hold that a criminal sentence can be enforced even against a man who showed evidence that he has reformed, and who has widespread public and celebrity support for a stay of his sentence. In many cases, these are difficult choices, cutting against the popular grain. But that is what judges are suppposed to do--protect the system and not the popular grain.

I have seen many signs of hope amid a bleak time for our country. The deliberate (and conservative) prosecutor in the Plame/Lewis Libby indictment pursues the truth regardless of where the political chips lie. Mr. Abramoff, who bought a legislature, an election, and several items of pork for his clients, finally took so much money that the system indicted him, and dozens of powerful men and women will now fall with him.

They say that "hard cases make bad law". Zacarias Moussaoui is a difficult defendant, a man with a real wish to commit crime, prevented only by his own personal limitations from succeeding in doing so. Victims of 9/11 in many instances see his case as a solitary hope for justice (and parenthetically, it amazes me we can fly to Mars but we cannot comb Bin Laden out of Pak-Afghani border regions).

But who will stand up for the system? When do the rules matter? Judge Brinkema has her heart in the right place. But shouldn't palpable government wrongdoing have more palpable consequences?

The problem with a well-ordered system of laws is that mercy must be tempered with justice. Zacarias Moussaoui is not a sympathetic figure, but the law requires he get a fair trial. When the agents of the law break the rules, consequences must inhere.

I want us all to live in a world in which our government, no less than you or I, lives with the consequences of its choices and errors.

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