Probable Cause

During a momentary escape from a brief I’m trying to complete before the end of today, I ran across an article on the Pennsylvania Litigation Blog about a sheriff who has become a hero to some because he won’t conduct auctions on foreclosed homes as the law requires.

The article itself was basically just a reprint of one that was supposed to appear in the Wall Street Journal on June 6, 2008.  It was a user comment that struck me more and inspired this post.

I don’t normally write about non-criminal law issues, but since this involved a sheriff picking and choosing what duties to perform, it seemed an acceptable fit here.

The commenter praised the sheriff because even though what the sheriff did was “against the law,” it was the morally right thing to do.  At least, it was the morally right thing to do in that commenter’s opinion.

I disagree.  At least I think I disagree.  (Keep reading!)

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A post by Gideon gave the final push for this post.  I’ve been thinking for a long time about “legal fictions,” particularly as they relate to gang cases.  Frankly, they irk me more than a bit.

You see, I’m what’s known as an idealist: I think the law should be understandable and it should mean what it says.  Some people think that makes me stupid; some think it makes me naïve; some (few) think it makes me a good guy.

I think it makes me an American.  True Americans are naturally idealists.

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This post isn’t about child custody cases.  It’s not about family law at all.  Oh, and it’s not about religion, either.

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As the First District Court of the State of California has noted in a case certified for partial publication — the irony of this will soon become apparent —

It is commonly said that ignorance of the law is no excuse. (People v. Meneses (2008) 165 Cal.App.4th 1648, 1661 [82 Cal.Rptr.3d 100].)

It is also commonly said that sausage and legislation are two things you don’t want to see being made.

Although I doubt he had the protection of your sensibilities in mind, the Roman Emperor Caligula developed a unique plan to hide the law from the people who were, nevertheless, held accountable for it:

[G]reat grievances were experienced from the want of sufficient knowledge of the law. At length, on the urgent demands of the Roman people, he published the law, but it was written in a very small hand, and posted up in a corner, so that no one could make a copy of it. (Seutonius, “Gaius Caesar Caligula” from The Lives of the Twelve Caesars, XLI, p. 280.)

California courts have found a better way.

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The other day, I was sitting in a courtroom waiting for a case to be called.  I was stuck.  Having received a call from another attorney, a very good friend who could not make it to the courtroom, I agreed to make a courtesy appearance for her to ask for a continuance.

When I arrived, another case was in progress: an extradition hearing.  I’d never observed or been involved in an extradition hearing.  The person they were trying to extradite, through his lawyer, was making numerous objections to the evidence being admitted.  And, in particular, he was repeatedly objecting that the California Evidence Code — which he believed the court was ignoring — should apply in this extradition hearing.

That’s how it happened that I got myself into a little pickle.

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There is a saying in the legal community that “hard cases create bad law.”  When I was young, whenever I would explain my behavior as contingency planning based on the possibility that something might happen, my father had a saying of his own.  In response to my “if this happened” or “if that happened” reasoning, he would state the following maxim:

If worms carried shotguns, robins wouldn’t eat them.

Not infrequently, as a child engaged in excessive contingency planning, I found this response nothing short of irritating.  As a rational adult attorney, I have found myself quoting this maxim with some regularity.

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A young person — I’m not going to provide any more identifying information than that individual did — left a comment to my article about “Defending Innocent People.” The comment is interesting on many different levels.

One of the things that really stood out, though, was this statement:

I do agree that a lot of people convicted are in fact guilty, and even if not for that particular crime than [sic] they probably did something before that and somehow got away with it.

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Many years ago, before I was an attorney, I was involved in a then-infamous fight with a quite well-known but also quite obnoxious technical writer.  The details are unimportant, but due to the influence he had over numerous 12-to-14-year-old wannabes (for which I believe he remains immensely proud), he was able to prevent my access to a certain Internet Relay Chat channel for quite some time.

The crux of the reason for my long-term banishment was that I mentioned the impact the supposed adult — I’ll call him “Jack Merridew” — was having on my ability to perform some of my work and that I suggested continued interference by Merridew might provoke a legal complaint.  And that threw everyone into a tizzy.  I had unknowingly committed the ultimate sin: I “confused RL with IRC”; that is, I ignored the unspoken (and idiotic) belief that “real life” and “Internet Relay Chat” are two separate things.

Today, we know better.  Or do we?

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In a regular courtroom when the defense makes an objection, there is the potential for “argument” on the issue. The defense may explain the basis for his objection. The prosecutor will argue for why the objection should be overruled.

This doesn’t happen with every objection, but every objection has this potential. If there is an argument, the judge has to hear both sides. Only then can he or she dismissively wave in the direction of the defense while announcing the objection is “overruled.”

And since any argument not infrequently occurs only in a sidebar, the time incurred in allowing a fair airing of the issue is increased.

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Here we have another example of how the courts have decided that the quaint concept of “justice” is no longer compatible with modern life.  The court in Pace v. United States Automobile Ass’n, 2007 U.S. Dist. LEXIS 49425, 9-10 (D. Colo. 2007) has held that because the courts decided to put themselves in the same class as pornographic spammers and stop using the United States Postal Service with its more than two centuries of service, law firms and their clients will be punished.

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