July 28, 2004
I often hear people (including most lawyers, who really should know better), that they are tired of people getting off on technicalities. A technicality has specific context. If a police-baton inspired confession is suppressed, the defendant walked on a technicality. If a jury does not find the defendant guilty beyond a reasonable doubt, he walked on a technicality. But shouldn't this term cover prosecutorial acts as well?
If an eighteen year old male who had sex with a 17 year and 9 month old female, was charged with statutory rape (in a state where the age of consent was 18), would we say he was charged under a mere technicality? If I committed some strict liability offense about which no reasonable person would know, who would say I was charged under a technicality? No one. Everyone would say, "You broke the law. Now go to prison where they serve chunky peanut butter."
How come only criminal defendants take advantage of technicalities? When prosecutors overcharge an indictment, or send people to prison for 10 years for importing lobster tails in plastic rather than paper bags, it's somehow consistent with wholesome morals and an effective criminal justice system. Why are constitutional rights technicalities where as criminal laws are the law?
A lot of people are saying that Martha Stewart committed insider trading and she wasn't charged because of some technicality. (It's kinda like the boogie man. Even saying the word sends chills down our spines). However, I must ask: If the AUSA could not - with its immense resources - prove insider training, then how can we (epistomologically speaking) know she committed insider trading? The fact is, if the AUSA could have proved it, he would have charged it. He couldn't prove it. We can't know it - unless someone has some evidence he's holding onto. In which case the AUSA might bring another case against the holder of said evidence.
Yet very well-educated and intelligent people bemoan technicalities when they help a defendant. I can't understand why we don't say that people charged under one of the 3,000 or so federal crimes are being prosecuted under technicalities? Why the inconsistency?
I have obtained such joy from Rush Limbaugh's legal problems. He hated criminal defense lawyers. But when his toe was in hot water, he retained the best. He thought all criminal laws were scume. Well, Rush, how's it feel to be charged under a technicality? After all, using pain-killers is not a crime against nature. If we were organizing a civilized society from scratch, I imagine that prohibing the self-administration of drugs to ease our pain wouldn't be on the to-do list. Indeed, Rush was very successful while using the drugs. But the state says that we are not intelligent enough to self-administer drugs. It's a foolish regulation. It's a technicality. But it has teeth - violate this stupid law at the peril of prison.
I suggest that everyone who loves the police and prosecution make a moral commitment to never retain a criminal defense lawyer. You can email it to me. If you are ever in trouble, just tell the police and prosecutor what happened. They'll do justice by you. Right? After all, since technicalities are so evil, you yourself would never want to use one, right?
Or do you only care about your own rights? If that is the case, what kind of person are you?