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» DUI, Government Rants » Formalities, Theirs and Ours

Formalities, Theirs and Ours

The law is filled with all kinds of silly formalities. They place the prosecutor’s table on the side closer to the jury box. You’re not supposed to touch the judge’s podium. Some courts require that the lawyers wear a suit or sports coat. A jury is supposed to be sworn.

That last one probably seems really important to you, but it isn’t. From a post earlier today from Scott Greenfield at Simple Justice, I learned about a Tenth Circuit opinion yesterday affirming a conviction in a case where the jury reached its verdict despite having never been sworn. Oops!

In the case, the defense attorney knew the judge forgot to swear them in, but he waited until after the verdict to bring it up. The Tenth Circuit really summed up its feelings in this last sentence:

The interests of justice are generally not served by allowing a party to object to an error
after the trial has concluded and the party has lost.

Basically, having a sworn jury may be important, but the defense attorney should have objected earlier. How important was it to him then? Isn’t the defendant still culpable? Courts certainly can’t go around rewarding such gamesmanship, so the interests of justice must trump little technicalities. Like having sworn jurors.

In his post, Scott wrote as follows:

It’s completely understandable, from the judges’ perspective, that they’re both annoyed with [the defense attorney] for screwing with one of their own and making the trial judge look foolish. It’s understandable that all the platitudes in all the law books in all the land aren’t sufficient to compel the judges to reward the defense for having out-gamed the court and the prosecution. And it’s understandable that the judges really don’t believe that swearing the jury is anything more than a formality, to be used when it serves to explain why they can’t possibly let an innocent man walk free and undermine the finality of the verdict or question whether the jury decided the case in absolute adherence with the judge’s charge.

What is not understandable, however, is how, in the process of trying to explain the unexplainable, they have managed to reduce the swearing of the jury to a farce, unless of course they consider the trial unworthy of all those constitutional things they’re supposed to include.

Scott touches on an important point, but the Tenth Circuit’s reduction of the swearing of the jury to a farce actually seems pretty darn understandable to me. As Scott said in his opening sentence, it’s just a formality. It might be one of the formalities upon which the solemnity of a jury trial is based, but it’s still just one little part of the big picture. It’s seconds or minutes in proceedings that last days or weeks. Does it affect whether the jury was able to accurately determine guilt? Without it, is the conviction still good enough for government? As long as the bad guys still go away, details don’t matter all that much to a lot of courts. That kind of thinking is apparent all over the place.

With speeding tickets, when judges see that the cop inadvertently wrote the wrong statute number or date or even a location outside of the court’s jurisdiction on the ticket, they allow the officer to amend it on the spot. Some judges feel obligated to sternly admonish the defense about engaging in trickery when they bring it up. In Arizona DUI cases, judges deny motions to suppress based on daytime blood draw warrants served in the nighttime despite the fact A.R.S. § 13-3917 requires that, in the absence of a specific direction authorizing a search between 10:00 p.m. to 6:30 a.m., a warrant may be served only in the daytime. They reason that the blood draw started only a little bit after 10:00 p.m. or that officers started it before 10:00 p.m. and it just took a lot longer than expected. Close enough, right?

Courts reduce formalities to a farce all the time, just not when they’re formalities that happen to help the state. In those same speeding ticket cases, people are fined hundreds of dollars more because the officer’s radar gun spit out a number ten percent higher. In those same DUI cases, people go to jail for days or even months longer because a lab test spit out a number one hundredth of one percent higher. Tiny variations matter when courts are determining guilt or the applicable punishment, keeping us common folk in line. Who cares when it affects the validity of the written ticket or the blood draw though? Formalities, nothing more. Officers and prosecutors and judges fight the good fight, after all, and at the end of the day, the defendant is still guilty.

Every defense attorney has had one of those clients who thinks his case should be dismissed because the police officer misspelled something in his report or the prosecutor forgot to introduce himself on the record at the most recent hearing. As frustrating as it is to explain over and over again that those are not issues worth pursuing, the clients are basically right. They’re getting hammered for minutia, and the state gets to be as sloppy as it wants. There’s a very clear double standard at play, and a lot of defendants can see that. They’re just naive.

Eventually, almost everyone gets it. The situation can be distilled to one simple rule: it’s only a needless formality when it’s the state that’s supposed to follow it.

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