Blogging in the Alternative

One of the things that was supposed to happen to me as a result of going to law school was an irreversible change in my way of thinking.

It’s entirely possible that I was never happy as a lawyer because my way of thinking in fact did not change.

The legal system, for those of you who have never wrestled with it, is a parallel reality. It is governed by one sort of logic (the need to end disputes) while speaking exclusively in terms of a different logic (the search for justice and fairness).

My experience as a lawyer, however, was unvarying: I never had a client who really wanted justice. Every single one of them wanted victory. If victory were to be called justice, that was even better, but the actual goal was always victory.

My headline is a take on what is called “pleading in the alternative.” The principle is neatly illustrated by a hypothetical claim for damages. You claim that I borrowed your pail and that when I returned it to you it leaked. Pleading in the alternative, I answer you as follows: a) you don’t own a pail; and b) if you do, I never borrowed it; and c) if I did, it didn’t leak when I returned it; and d) if it did, then it already leaked when I borrowed it.

The example is amusing, if you’re in the mood for logic so twisted it will give you a headache. The social implications of a system that runs this way, however, are sometimes horrific.

National Public Radio reported yesterday that in the Dallas area, where evidence in criminal cases is preserved indefinitely, DNA testing by modern means is turning up something like a 40% wrongful conviction rate in rape and murder cases. Forty percent. One man who was interviewed had been freed after 27 years in prison.

In every single one of those cases, the court ended the dispute, and the State “won.” Those victories, however, have appallingly little connection to justice.

This may be a problem peculiar to Texas, but I doubt it. I do have one question for Texans about this, however: With a 40% error rate in convictions, do you still think the death penalty is a good idea?

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