Have you heard the true story of the English barrister who came to America and instead of addressing the judge as “Your honor,” as is customary in this country, he used the English title: “M’Lord.” Everywhere he went, he found his mistake very well received by the court. Needless to say, he used M’Lord” whenever he found himself in front of a new judge.
When the court issues a legal opinion, they don’t hand them out.
They don’t hand them over.
They hand them DOWN.
I’ve always been interested in the way the courts characterize mistakes made by prosecutors, criminal defense attorneys and judges. I’m not talking about intentional wrongdoing, just mistakes.
When a judge makes a mistake, they call it an “error.” Maybe they soften it a bit more and call it a “judicial” error. It may or may not be important but either way, it’s just an error.
- Now the prosecutor does not get off so easily. If he (or she) says or does something he shouldn’t have (even inadvertantly) it’s not a mistake. It’s not an error. It is called “misconduct.” Prosecutors really hate that. Prosecutorial misconduct. It sounds evil.
- But the criminal defense attorney, I think, gets it even worse. When he makes a mistake, they don’t call it an “error.” They don’t call it “misconduct.” They call it “ineffective assistance.” What could that mean?
Now we all know that “ineffective” means. It means without effect. So I guess if my client gets convicted of the charge, then I’m “ineffective,” right? Well no. Actually, to provide “ineffective assistance of counsel” a defense lawyer must bumble through two hoops:
- He must make a mistake; and
- Lose because of it.
If he makes no mistakes, but is simply ineffective by the common definition (i.e., he lost), he’s still OK. And if he messes up, but his failure is not the reason he lost, then he’s still OK. (He’s OK. Yeah. His client is not.)
When I was a prosecutor, I tried not to do anything that wasn’t allowed. I knew that if I failed, I’d have to try the case over again. So it sort of annoyed me to see mistakes labeled “misconduct.” If I’m going to be labeled a bad boy, I’d at least like the pleasure of being one intentionally.
Still, it beats being labeled “ineffective,” which sounds like a nice way to avoid hurting someone’s feelings. Come on just say it: “Somebody screwed up and somebody else went to prison!”
So you have this baggage that goes with the lawyers’ mistakes. They are either a devil or a dummy. Maybe they got it right by simply calling mistakes by judges “errors.”
Is there anyone who missed the story about the 20-year-old McDonald’s employee in Georgia who spent a night in jail and is facing criminal charges after a police officer complained that the burger she prepared had too much salt on it.
If this charge sticks, it would be a really cool cop perk to go along with getting to drive too fast without getting a ticket.
I used to work in fast food myself, but fortunately I got out before things got really crazy. If I was still at it I might be facing multiple charges for:
Count 1. Shorting the bag of a law enforcement officer by less than three packets of ketchup (3 or more is a felony);
Count 2. Reckless failure to shake excess oil from french fries, contributing to saturated and trans-fat poisoning.
Count 3. Dispensing a too-short straw with one of those 42 oz drinks (a misdemeanor, unless the victim is a law enforcement officer);
and with the way things are going in Missouri we could eventually see . . .
Count 4. FELONY-MURDER, in that Officer Friendly was killed when his patrol car crashed as a result of the perpetration of the felony of DISPENSING A TOO-SHORT STRAW TO A LAW ENFORCEMENT OFFICER, occurring immediately after Officer Friendly’s straw slipped though the hole in the lid and into his drink, thereby causing him to lose control of his vehicle.
You know, there are worse, more disgusting things that a restaurant worker can do to your meal (spitting on a sandwich comes to mind). Things that the victim wouldn’t even know about. So I’m thinking, this is a tough case to make.
So ask yourself, what would happen if you flagged down a police car and demanded that the cop arrest the McDonald’s kid who put too much salt on your burger?