A few days ago, Twitter’s Legal Eagle Michelle posed a question. She called lawyers into action and asked them to provide tips for law students. Let’s start with that for this Sum it Up.
I have four tips.
Here is number one: rulings are not about what is morally right and, what is legally right can feel utterly wrong. On March 2, 2011, the United States Supreme Court ruled that protests at military funerals are protected by the First Amendment. The ruling was expected and is correct but it does not feel right.
What is morally right is to leave grieving parents and family alone and to allow them a respectful last good-bye. What is morally right is to pick your battle at a different time when both parties are equally prepared to speak their minds and not when one party’s emotions are so hurt. Legally, the church was following the rules as Chief Justice Roberts noted. But what they did feels utterly wrong.
From the New York Times: “Chief Justice Roberts wrote in the ruling that three factors required a ruling in favor of the church group.
First, he said, its speech was on matters of public concern. While the messages on the signs carried by its members “may fall short of refined commentary,” the chief justice wrote, “the issues they highlight — the political and moral conduct of the United States and its citizens, the fate of our nation, homosexuality in the military and scandals involving the Catholic clergy — are matters of public import.”
Second, he wrote, the relationship between the church and the Snyders was not a private grudge.
Third, the members of the church “had the right to be where they were.” They were picketing on a public street 1,000 feet from the site of the funeral, they complied with the law and with instructions from the police, and they protested quietly and without violence. “
My brain agrees with Chief Justice Roberts but in my heart and soul where integrity and honourable behaviour rule, I disagree. And that, Michelle, is tip number two:
law can be analyzed objectively by the brain but is interpreted by what the heart and soul hold for right. Sometimes you see that a rule has evolved over time where human interpretation has added nuance to an abstract ruling. And sometimes, it is and must be absent if we wish to uphold rights such as Freedom of Speech.
Another tip can be found in the trial that will wrap up this week. The question to be answered is: did Locker lure Minor to help Locker to kill himself or, is Minor a ruthless creature who took Locker’s life? The scenario in the Guardian: “The surreal nature of the case becomes clear when you consider the points of agreement between prosecution and defence lawyers. Both sides accept that Locker had fallen into financial difficulties, and wanted to kill himself.
Both sides concur that he actively went out on at least two occasions to try to recruit someone who would preside over his own death. Both agree that on 16 July 2009, in East Harlem, Locker convinced Minor to tie Locker’s hands behind his back and hold a knife at his chest.
It is at this point that the prosecution and defence cases part company. The prosecution alleges that Minor took advantage of a desperate man and plunged the knife into Locker’s chest seven times in a coldhearted murder.
“Jeffrey Locker was a foolish, dishonest, pathetic man. But Kenneth Minor was a vicious and callous man,” the lead prosecutor Peter Casolaro told the jury. “Mr Minor ignored the basic principle of human decency, which is not to kick a person when he’s down.”
I wish we had an autopsy report here because there is another possibility. And that is my third tip: always look for alternative explanations for the facts. Never dismiss them as too farfetched!
Think about the case and about what both sides agree upon. What if Locker did try to impale himself and failed, tried again, and failed, and then begged Minor to please finish the job? What if Minor then did? And that he stabbed Locker more than once to make sure that it was over?
Set aside that Minor was a convicted felon. Set aside that Locker was a fraud. Concentrate on this option: could this have happened? We would need the autopsy report, the angle of the knife wounds, the exact depth of all seven stabbing wounds to calculate velocity and of course, we’d have to know which wound was the fatal one. But what if that autopsy report indeed shows seven stabbing wounds with different angles, depth, and velocity?
We have seen wrongful convictions where years ago we were convinced who did what to whom and how. Now, sometimes after decades, we find out that we were wrong. The Minor case may not be the best example to illustrate this but, I think you get my point: no criminal law analyses is complete without a thinking session in which you play devil’s advocate and explore the case one more time but with different “eyes.”
UPDATE: Minor was convicted. “Prosecutors said Minor murdered Locker by stabbing him seven times, pointing to a city medical examiner’s testimony that Locker’s chest wounds had characteristics indicating he was stabbed by someone next to him. But Minor said he just held a knife against the steering wheel while Locker repeatedly lunged into it, and a prominent pathologist he hired testified that his account was plausible.”
Tip number four is about change. If you had asked me a few years ago whether I’d be on Twitter I would have said no. None of my colleagues were and those that had an account were also highly critical of the entire medium. But I am on Twitter! Why? Because despite the noise, the highschool attitude of some, and the sheer spam, I did find people who are engaging and I enjoy tweeting with them. I found that despite all the “Twitter is superficial” noise (which you can easily filter out of your stream) there were meaningful ways to use this medium. This has resulted in #CCLiveChat.
The tip? Take advice from and listen to (older) colleagues when they recommend or cannot recommend something but do take a look for yourself! Make up your own mind and see where you stand even if it is something as “trivial” as Twitter!
Till the next Sum it Up!