Boston University School of Law

Earlier this week I was about to step into class when the daycare called about my little man running a fever. They had just reduced the threshold temperature for getting sent home from 101 to 100.4 and he was 100.7 and cranky. On the drive to pick him up, someone shifted from the middle to the left lane in a three-lane highway. Usually that works out fine except that I was already in the lane she shifted into. She exploded the front driver’s side corner of her car against the passenger side of my car then apologized. I handed her a piece of her car that was stuck in mine while collecting her insurance information then continued to the daycare. The next day her insurance called me with news that the accident was my fault based on a story that, as I heard it told to me, was entirely make believe. Let me digress and I’ll get back to that phone call…

Impartiality as a matter of policy

It’s comforting to think there is a sensible impartiality to the reasoning that determines your fate if you stand before a judge, but in reality everyone is impressionable, even careful judges. In Criminal Law with Professor Fisher we looked at People v. Marrero where a lifelong federal prison guard who had received death threats was charged with possessing an unlicensed pistol outside of work. State (but not federal) guards were exempt from licensing as peace officers, and though Marrero argued that he mistakenly thought he qualified for exemption as a peace officer, the second trial judge didn’t give the jury the option of treating this mistake as a defense—which is to say, Marrero was convicted with a light sentence but permanently lost the job that supported his large family. (The first trial judge had dismissed the charge early on but the government was persistent enough in appeals to get its way.)

Agreeing with the second trial judge upon review of the decision, the appeal court’s winning opinion built on the default ignorance or mistake of law is no excuse principle, because if it were, anyone could run around committing crimes claiming they didn’t know it was a crime. (Remind me to tell you later about my first encounter with that principle in college…) The losing opinion stressed that there is a difference between acts which are clearly out of line regardless of the law and acts that are prohibited but not necessarily wrong to do if they’re not, with Marrero’s act being in the second category. If he wasn’t trying to break the law but rather trying to follow it, should he have been convicted for an honest mistake? Here, the abstract policy discussion turns to very human terms.

Partiality as a matter of impression

If the second trial judge had gotten the impression that Marrero was actively trying to follow the law as per the general understanding of fellow federal prison guards and his instructor that he was a peace officer, then the judgment might have been reasoned in favor of leniency toward Marrero’s good faith. As it turns out, the second trial judge got the impression that Marrero was abusively looking for a loophole in the law to be able to carry the gun outside of work, in part because he was found with it at a night club having given guns to the two people with him. Ironically, the decision that spins out of this initial impression becomes the law to be applied in future cases, so the leniency or strictness available to the next defendant is at stake here even though the presentation of another case elsewhere might create a wholly different impression.

We want leniency or strictness to be a matter of general principles applied to particular facts, but often the particular facts stir a certain intuition and then the general principles are bent toward that intuition—only to produce more finely sliced sub-principles to be toyed with next time. It may be that our natural proclivity to sympathize or withhold sympathy in discretion can be harnessed toward contextualized decisions, or it may be that fairness is threatened by loss of objectivity. Either way, it’s like economic models relying on rational actors when few people actually behave in the idealized way models want them to—denial is still a good start but eventually it prevents us from talking about what’s really going on. From a pragmatic point of view, if impressions are more determinative than anyone wants to admit, then surely it’s a safe bet to keep track of which way we rub others…

Back to the phone call

The insurance company gave me the option of recording my version of the accident for their records. I responded that I filed a written statement and it would soon make it to their desk. We proceeded to talk about details of the accident, but as our stories diverged and I insisted on them reviewing their client’s story more rigorously, I was told that they already gave me the option of recording my statement and I refused, so they are clearly working with me but I haven’t given the impression that I’m cooperating! Trying to revive our cordiality I said something about understandably missing each other in our expectations and surely we’d work it out. You better believe we’ll work this out, in my favor, but no need to give the impression that I’m stubborn.