JUDGING CRIMES

It's - what's the word? validating, I guess - when academics put down the bluebooks they ought to be grading in order to rush out law review articles dedicated to elaborating on some of this blog's posts.   Professor Benjamin Barton of the University of Tennessee Law School - I assume everyone calls him Doogie - is the latest to accept guidance from Judging Crimes.

I refer, of course, to his article "Do Judges Systematically Favor the Interests of the Legal Profession?", an elaboration of post 250.  Considering that just two weeks elapsed between the post and the article, his industry is to be commended, too.

Barton's article will be forthcoming from the Alabama Law Review.  Its abstract on the Social Science Research Network reads:

Many legal outcomes can be explained, and future cases predicted, by asking a very simple question: is there a plausible result in this case that will significantly affect the interests of the legal profession (positively or negatively)? If so, the case will be decided in the way that offers the best result for the legal profession.

Barton picks examples from around the whole field of law to prove his thesis:

The questions considered include: why are lawyers the only American profession to be truly and completely self-regulated? Why is it that the attorney-client privilege is the oldest and most jealously protected professional privilege? Why is it that the Supreme Court has repeatedly struck down bans on commercial speech, except for bans on in-person lawyer solicitations and some types of lawyer advertising? Why is it that the Miranda right to consult with an attorney is more protected than the right to remain silent? Why is legal malpractice so much harder to prove than medical malpractice?

Answer: because lawyers are more important than other people.  And it's objectively true that we're more important, you know: our importance lies in the fact that we're objects of such judicial solicitude, just as it was objectively true that Buckingham was more important than anyone else in England during James I's reign.

Barton takes four pages (26-30) to make his point about Miranda, and then doesn't quite seem to grasp the point he's making.  The actual right guaranteed by the Constitution - the right to remain silent - exists for the protection of the individual.  That right can be waived simply by speaking.

But in the 1970s, a decade in which nothing went right, the Supreme Court amended the Constitution, adding a new Amendment V I/II (in decimals, V.V), requiring the police to stop investigating the murder or rape or whatever trivial thing is occupying their tiny little ferret brains as soon as the suspect asks for a lawyer.  The Court's reason for creating that right is pretty obvious, really:

Any lawyer who has ever been called into a case after his client has 'told all' and turned any evidence he has over to the Government, knows how helpless he is to protect his client against the facts thus disclosed.

A client who has once uttered the magic words ("I want a lawyer") can't retract them merely by talking to a police officer.  He has to know the secret code to free himself from his self-cast spell. 

There's a simple reason why it's so much harder to rid yourself of the right to counsel than of the privilege against self-incrimination.  The second protects the person accused of a crime from brutality.  The first protects his lawyer from being saddled with an unwinnable case.  And which is more important, really?  (If you're not a lawyer, don't try to answer that question - it's far too technical and involved for you.)