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If The Law Was Fixed, Immutable – We might Understand It
I once had a string of DUI cases that were dismissed after a successful suppression motion. That streak was snapped when a judge in a small county denied a motion in my next DUI case. In that last case I was more sure I had the legal grounds to have the evidence suppressed then the one’s before it that were granted. I was positive the stop would be deemed to lack probable cause and the state would have to dump it. Heck, I even had a video! Behold, the judge thought otherwise. All that was left was an appeal but once you are forced into the appellate stage the level playing field sways heavily to the appellee (the side that did not lose the motion). Appeals also cost money. Unless you are indigent you probably won’t want to spend (or may not have) that kind of money.
What If You Think The Judge Got It Wrong?
Justice is one of those terms we all think we know. It hangs around those other words like “fair,” “true,” even “lawful.” But in the realm of LAW “justice” and “lawful” have nothing to do with each other. Forget those ambiguous words “fair” and “true.” Those words are subjectively defined by the speaker using them. So let’s go back and look at the case when a judge rules against a motion to suppress. Obviously, the lawyer presenting the motion thinks he has the law on his side. The opposing counsel will try to find a lawful or emotional reason to argue for the court to deny the motion. Finally, the judge rules. Despite what you may think the law is, what the judge decides is “the law of the case.” Meaning – you don’t like it, appeal it.
Let’s bring this down to very easy terms. Let’s say it is against the law to cross a street at night during a “full moon.” The defendant is arrested for (1) crossing a street, (2) at night, and (3) the moon was full. The defendant raises a motion (to dismiss in this situation) and brings in an almanac showing the full moon actually occurred two days before the night he crossed the street. Behold, the judge asks the police officer how big the moon was and based on that answer denies the motion to dismiss. Absent contrary law, the judge’s ruling is “lawful.” Is it “justice?”
What the judge did was “interpret” the law. That is what the judicial branch is suppose to do. Usually, attorneys will look to appellate courts that have already heard the same issue before and made a ruling on it (in a published opinion). They will present these opinions to the judge in support of their motion. However, even the written opinions of appellate courts are subject to “interpretation.”
Is There A Bright Line?
Hammurabi is known for writing the law down for all to see, read, and follow. It allowed the people to know what they could and could not do. He is cited as the first to do this – unique in the world back then. Today it is taken for granted that knowing the law is a must for a “just” system. Unfortunately, our government deems it satisfactory to “publish” the laws in books housed in libraries and on the web and grant the rest of us the “presumption” of knowing (remember, ignorance of the law is not a defense). The problem is that there are, last time I had a set of all the Florida laws in written books, at least six volumes of laws for Florida. It is safe to say NO ONE KNOWS ALL THE LAWS.
Where does this leave us. We have more laws than are possible to know. The law is subject to interpretation by the court. The courts’ rulings are also subject to interpretation. People have a right to “due process.” This means, in simple terms, they have a right to be heard (to require presentation of proof of the alleged offenses and to have the ability to defend themselves). But to have a meaningful hearing “to be heard” an obvious prerequisite would be to know what you are being heard on, in this situation – a law which is unknown and subject to interpretation. How can a system of “justice” operate under such conditions?
The Average Person Back On The Block
“Back on the block” is where my drill sergeant threatened to send me back to when I screwed up years ago. It was a euphemism for civilian life. In civilian life, people have this weird sense that everything that they are told is the way it is suppose to be. Everything is always just dandy. When it comes to their rights and the way the court system works their beliefs are false. Out of sight, out of mind. When, unfortunately, people come face to face with the “justice” system, usually due to what I would consider a minor crime, they are shocked. They don’t know their rights, they don’t know the law, and their attorney is either giving them false promises (wrong) or trying to explain how the law can be interpreted differently to different people at different places and in different courtrooms (never an easy conversation). How can this be?
The Attorney
It is an attorney’s job to know the law and apply the law to the facts of the case. That’s great. The way things are today, I have job security. Is that the way it is suppose to be? Is it really necessary for Average Joe to have to hire an attorney for even minor crimes? (This is suppose to be a rhetorical question.)
I rarely practice in circuit court any more. I have found the minor laws are as confusing or more confusing then the serious crimes. Most people I represent never said to themselves “tonight I’m going to break the law.” They go out, doing what they think is right, and end up bailing themselves out of jail. It could be for a DUI or driving with an unknown suspended drivers license or resisting a police officer. For most non-lawyers reading this you are probably thinking “who would be stupid enough to do any of that?” The answer is “no one” but many people get arrested for those things every day.
Florida Legislature
The Florida Legislature proposes many new laws each year while they are in session. Each representative is given a limit on how much legislation they can introduce. Last session the members were allowed to introduce extra bills if they could come up with laws that could be stricken from the books. When I heard that I thought it was a brilliant idea. So brilliant I think it should be expanded. If anyone wants to introduce a bill they should be required to have a companion bill to strike down or simplify another already existing law.
Many people out there think good ideas are worth supporting. There are campaigns every year to tell us what a good idea a proposed law is. Probably the latest is the anti-texting bill. No body in there right mind will say texting and driving are a good combination. The problem is we all, ALL!, do it or have done it and will probably do it again whether it is actual texting or reading an email. Then no one who campaigns for the law knows what the law will actually say. Early attempts to pass an anti-texting bill made it against the law to view an “electronic messaging device.” This never passed. One problem was the fact that the state loves to put “electronic messaging devices” all over the highway to tell us Amber Alerts, Silver Alerts, how far the next exit is, and to tell us “not to text and drive.”
The Road to Hell is Paved with Good Intentions
I think it is time for reason to take over. First, we have to stop knee-jerk solutions to every issue that pops up. “Caylee’s Law” is the best example. Someone will go to jail for breaking that law but it won’t be Casey Anthony. Second, people need to know how the justice system works. Frankly, that may be the hardest part of this. The only way I can suggest is for non-lawyers to spend a day in court. Just observe it. See if the court has a program set up for doing that. If not, suggest it. There are volunteer programs out there such as Court Watch you can associate with (Disclaimer: I have no idea what Court Watch does. Just pointing out there are groups out there that go to court).
Finally, most importantly, and a must do – everyone should know their Rights. I’m not talking about “reproductive rights” or “gay rights” or other unwritten claims. It is time for everyone to read the Bill of Rights in the United States Constitution and the Rights contained in Article 1 of the Florida Constitution (for Florida residents – insert your state where appropriate). These are the Rights that have the force of law. If you don’t know them you give them up. If you find yourself with a lawyer saying “I didn’t know…” it is too late. Put down the latest “shades of grey” novel and read these things. Read them 4 times a year. Commit them to memory. If you memorized them but don’t quite understand their meaning – Google it. The answers are out there and through increased knowledge of these things maybe, just maybe, common sense will emerge.
Eric J Dirga, PA
