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.
I know, I know. Just by my making the claim that “true” Americans are naturally idealists, I’ve pissed off a whole bunch of the rest of you, including a whole bunch of criminal defense lawyers. You know what? I don’t really care. If you’re not fighting your ass off for the ideals that protect your clients, then as far as I’m concerned you’re a crappy criminal defense lawyer.
The United States was founded by idealists. The Declaration of Independence and the United States Constitution are paeans to idealism.
When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. (First third of the Declaration of Independence.)
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. (Preamble to the United States Constitution.)
What could be more idealistic than these words? These words were the Truth and the Inspiration for which the Founders of the United States fought the great war that created the United States. These are the words our Founders died for; these are the words for which the first few generations of their descendants lived. Without these words, the United States would not exist. This is particularly true of the Constitution, since the Constitution constitutes, or brings into existence, the structures and institutions of the government of the United States.
So I’m an idealist. I’m proud to be an idealist.
And I think it’s because I’m an idealist that I hate legal fictions.
Legal fictions are the words courts use to pretend that they are doing something fair; something noble, even. Or at least something “required” by the Law.
The reality is legal fictions are not much more than lip service to our ideals. By saying certain words, we verbally endorse what they purport to stand for. “Innocent unless proven guilty”; “beyond a reasonable doubt”; and so on. If we just say the magic words, we’ve done our duty.
At least (theoretically), these legal fictions are understandable. But as Gideon’s post points out, the embrace of legal fictions goes beyond such noble, empty phrases. Though everyone actually working in the legal community knows that there’s no such thing as a free lunch there are no good-hearted snitches informants, the prosecutors, law enforcement and judges wink and nod and accept the legal fiction that there are. Similar problems of understandability — particularly vagueness and overbreadth — affect anti-gang legislation. Defense attorneys try to fight back, but we’re not infrequently hampered by another legal fiction called “discovery.” (Actually, this one might be aptly named: if a defense attorney can discover it, he might be able to have it. The problem is in discovering it when it’s in the hands of the prosecutor and law enforcement.)
Other legal fictions, as criminal defense attorney Scott Greenfield from New York recently wrote, also involve witnesses. Scott wrote about a judge who refused to dismiss a lawsuit against New York City because, as the New York Daily News reported him saying,
“Informal inquiry by [myself] and among the judges of this court, as well as knowledge of cases in other federal and state courts … has revealed anecdotal evidence of repeated, widespread falsification by arresting officers of the New York City Police Department….” The judge said that despite better training for recruits and tough disciplinary action for bad cops, “there is some evidence of an attitude among officers that is sufficiently widespread to constitute a custom or policy by the city approving illegal conduct.”
The judge tempered his comments a little by stating, according to the Daily News, that “while the vast majority of cops don’t engage in crooked practices, it was common enough to be an institutional problem.”
That “institutional problem” is not limited to New York. Increasingly, law enforcement units are nothing more than state-sanctioned gangs, complete with their own pet names (“monikers”) for each other, cool names for their gangs (like “MAGEC”) and sometimes even tattoos. I still get a kick out of this legal fiction:
Though members of the Los Angeles Police Department may commit an enumerated offense while on duty, the commission of crime is not a primary activity of the department. (People v. Gamez (1991) 235 Cal.App.3d 957, 970-971 [286 Cal.Rptr. 894], emphasis in original.)
However, if one member of the Bloods, Crips, Bulldogs, Norteños, Sureños, or any other “street gang” commits one or more of the same enumerated offenses on multiple occasions, or two of members of these groups each commit one of the enumerated offenses on one occasion, then the commission of crime is a primary activity of the gang. Why? Because the court said so.
I’m not making that up. It’s all made possible by the vagueness and overbreadth of anti-gang legislation I mentioned above. And it’s true because the court said so. No other reason. Now that’s what we call a legal fiction!
In fact, it goes farther than that. If a police officer testifies that he is an expert on gangs, he is thereafter an expert on gangs. Why? You guessed it: legal fiction. You see, he wouldn’t testify to that if he hadn’t heard a lot of stories about what gangs are like from other police officers who called themselves experts. Oh, yeah, I almost forgot: part of his expertise will be based on the fact that he has arrested gang members some number of times.
Courts accept this legal fiction for a lot of reasons. For one thing, bringing in real experts on gangs — the anthropologists, sociologists (including even some pseudo-sociologists, the criminologists), and psychologists who actually have training in the study of groups and then actually study the groups instead of just arresting them — won’t back up the prosecution as often. They aren’t paid to do that like police officers who call themselves “gang experts” are. Another reason is that the courts need “gang experts” because without them juries would not get to hear a lot of the largely unsubstantiated, hearsay-based, prejudicial information that prosecutors need to get convictions. Because you can often (not always, but often) bet that if there’s a gang “expert” in the case, that means the case itself is probably not incredibly strong.
Without a “gang expert” to tell the jury that the “gang member” (who may or may not actually be a gang member, by the way) is a scumbag, or at least that his friends are scumbags, and to tell the jury that he is guilty, the prosecution would have to prove its case. If they wanted to talk about the primary activities of gangs, for example, they’d have to get a bunch of gang members willing to testify about what they do all day. And how’s that going to help, even if they could make it happen?
Prosecutor: “So, what are your primary activities?”
Gang member: “Huh?”
Prosecutor: “What do you do all day?”
Gang member: “Yeah, well, uh, we kinda sit around and kick it.”
Prosecutor: “Kick it?”
Gang member: “Yeah, you know. We talk with our homies and drink beer and chat up the ladies.”
Prosecutor: “What about drive-by shootings?”
Gang member: “I thought you asked, ‘What do you do all day?'”
So now we get to the heart of “legal fictions.” The purpose of a legal fiction is to allow us to pretend that we’re actually seeking justice, when we’re really just trying to process cases and lock up people we don’t like. In fact, you might say that “seeking justice” is the biggest legal fiction of them all.
Can you see why an idealist, someone who truly believes in the ideals, might be a little irritated by legal fictions?