A Tale of Judicial Review...Run Amok
Show me six sentences written by the most innocent of men and I will find something in them with which to hang him.
--Cardinal Armand Jean du Plessis de Richelieu, 1585-1642
have often called the above quote, the "lawyer's creed." Lawyers use it as a way to dig and dig and dig into one irrelevancy after another until they can find something on which to hang their case--and ultimately hang the opposition. Example: Bill Clinton, himself a lawyer, got done in by this principle and by a lawyer who was smarter than him. Clinton came under investigation for some nebulous reason concerning an $85,000 real estate deal (remember "White Water?"), a minor transaction by anyone's standards. It was so inconsequential, in fact, that he lost money in the transaction. And it had occurred some 20 years earlier in the late 1970s--in Arkansas, a state where upwards of 50 percent of the residents can read and write. But the Republicans and Kenneth Starr wanted blood, so they pressed on for more and more details.
Well, up jumped the devil! During the course of Starr's investigation, he discovered that Clinton almost certainly had sex with at least 3, perhaps many more women other than his wife. What did such a discovery have to do with the issue at hand? Logically, nothing. By no stretch of logical reasoning, however generously defined, could anyone link a minor real estate deal with casual sex nearly 20 years later--and with someone who was perhaps one year old at the time of the real estate deal. But Starr was determined. He was able to convince Attorney General Janet Reno there was a connection. He kept digging and digging and finally got what he was after all along--he tricked Clinton into lying under oath: "I did not have sex with that woman, Ms. Lewinsky." The rest is a case study in stupidity--on the part of Starr, Clinton, and the Congress. It all amounted to just a colossal waste of time and money. But rational people must learn from such blunders. Otherwise, we could all become as nutty as these participants. Here is the lesson I took from that debacle:
The law, it turns out, is whatever that person wearing the long black robe says it is. It does not have to make sense. It can be insultingly nonsensical. So where does that leave you and me? Shakespeare got it right through his character, Macbeth who said: “life’s but a walking shadow, a poor player that struts and frets his hour upon the stage and then is heard no more. It is a tale told by an idiot full of sound and fury, signifying nothing."
Charles Dickens was even clearer: In Oliver Twist, Mr. Bumble had been accused of stealing jewelry belonging to Oliver's mother; and, after making sure his wife had left the room, he responded: "It was all Mrs. Bumble." Brownlow, the solicitor, advised Mr. Bumble "that is no excuse because you were present on the occasion…and, indeed, you are the more guilty of the two, in the eye of the law; for the law supposes that your wife acts under your direction. "'If the law supposes that,' said Mr. Bumble, squeezing his hat emphatically in both hands, 'the law is a ass — a idiot.'
Who are we left to believe? Which example should we follow? Is it the law as defined by such stewards as Clinton, Starr, Congress, Scalia and Thomas, or by such scholars as Shakespeare and Dickens? I know not what course others may take, but as for me, give me Shakespeare and give me Dickens; the rest are all asses!
If you are of a like mind, here is how I suggest you handle all of those impostors who deign to flaunt their knowledge of the law at us when we are on the witness stand (or elsewhere). Consider the following court room scene:
Prosecutor: "I noticed on your bank statement, Mr. Smith, that you spent $200 on July 16th last. Is that true ?”
Prosecutor: "And what did you purchase with that money?"
Smith: "That is irrelevant to the issue. I have been charged with mooning my grandmother without a license 7 years ago."
Prosecutor: "Your honor, will you please instruct the witness to answer the question."
Judge: "The witness will answer the question."
Smith: "I spent the money on jelly beans."
Prosecutor: "On jelly beans?"
Smith: "Yes. A jelly bean is a sugar-based foodstuff that provides normal human beings with instant energy. You wouldn't know much about them."
Prosecutor: "He's badgering me, your honor. Tell him to stop."
Judge: "The witness will stop his badgering."
Prosecutor: "Thank you, your honor. Now, how many jelly beans did you buy?"
Smith: "That is also irrelevant to the issue."
Prosecutor: "Your honor, he's doing it again."
Judge: "The witness will answer the question."
Smith: "I bought 10 gross. That's not a commentary on jelly beans. It means 1,440 jelly beans."
Prosecutor: "And what did you do with those 1,440 jelly beans?"
Smith: "I threw 100 of them at your ugly sister."
Prosecutor: "Your honor, he can't call my sister ugly."
Judge: "He can if she's ugly."
Prosecutor: "But my sister is so sweet. She wouldn't have anything to do with this offensive man."
Smith: "I plead guilty to that charge, your honor. Now can we all get the hell out of here?"
Prosecutor: "Your honor, make him stay put."
Judge: "Stay put, young man."
Prosecutor: "Now, what did you do with the other 1,340 jelly beans?"
Smith: "I gave them to 100 of my closest friends."
Prosecutor: "And what did they do with them?"
Smith: "That's irrelevant."
Judge: "The witness will answer."
Smith: "As I recall, they all lined up and pelted your ugly sister with them."
Prosecutor: "You're insinuating that my sister deserves to be pelted with jelly beans?"
Smith: "No. I am merely repeating what I saw. She is also cross-eyed and has elephant ears."
Prosecutor: "Your honor, the witness is volunteering information I have not asked for. Tell him to stop."
Judge: "Any man that moons his granny, and lets 100 of his closest friends pelt your sister with jelly beans, is entitled to comment on her eyes and ears. Overruled."
Prosecutor: "OK. One last question: What happened to all those thrown jelly beans?"
Smith: "Your sister collected them. Then she threw them into a kettle of garbage and cooked them altogether, and she gave the flavorful jelly bean soup to you, and you told her it was the most delicious soup you ever ate."
Prosecutor: "I object, your honor. That's hearsay. I invited all my legal friends over and they ate the soup. I mean that's disgusting. And irrelevant. Wait a minute...Holy petunias! Your honor, you ate the soup too."
Judge: "Case dismissed!"