Week One, Part 5 - Crim: Healthy Uncertainty

For Criminal Procedure, I’m back in Room 121, this time 15 minutes early. The teacher walks in at 2:00 p.m. and makes his way down the steps to the podium. Unlike Bauer, he’s not wearing a suit coat, but favors blue slacks and a short-sleeve shirt. His hair is gray and his glasses tinted.

“Hello. I’m Professor Dutile, D-U-T-I-L-E. It’s a name that’s often misspelled and usually mispronounced.” That’s all we get for a personal introduction.

“Criminal procedure is a fast-moving area of the law. You should not miss any classes.” He holds up a brown text with gold lettering. “We will be focusing on the principal cases. By that we mean ones with an excerpt of the decision.”

Dutile says that during our discussions we will sometimes disagree. “I don't want any minority views laughed at or any rigid orthodoxy. We must diffuse the law student’s quest for certainty. Recognize that law is an art. We're always to some extent practicing, because law is always changing. Thus, certainty is inversely proportional to enlightenment.”

Hmmm. I wonder if Dutile will take that same view come final exams.

“Suppose you hear somebody cough. You say she has a cold. But if a doctor hears it, he'll want to know more. As more enlightened, he’s less likely to be certain. There’s an uncertainly about the law that’s healthy.”

Dutile tells us that we will brief cases in advance of each class. He writes the word “Facts” on the board. “Don't write down all the facts. Focus on the ones that make the discussion relevant.”

Dutile steps to the side of the podium. He opens his left palm and pretends to hold a pencil in his right hand. “On January 1, Ethel Jones robs a 7-11.” Dutile makes writing motions. “She’s driving a blue Ford Pinto. At the Ohio border, she stops for an ice cream cone.” That makes us laugh, but Dutile’s expression is deadpan. “At her trial she is denied a jury.” He puts away his air pen. “The crucial facts are that Ethel is charged with armed robbery and that she’s not given a jury.”

Next Dutile writes down “Issue.” He crosses his arms and walks up the steps to the third row. Leaning back, he rests against the wall. “Why is this thing in court? Does the U.S. Constitution require a jury in a trial for armed robbery? If the defendant had used a toy gun, is it still armed robbery? State the issue as succinctly as you can without omitting any of the problem.”

Dutile ambles back to the board. “Resolution.” He faces us. “In relation to the issue, this is the answer.” Dutile drops the “r” so it comes out “an-suh.” He’s got to be from the east coast.

“Reasoning” is the fourth element of a brief. “A jury trial seems like a swell idea, so let's have one.” We laugh and Dutile waits for quiet. “Sometimes it might be more technical than this.”

I begin to feel comfortable with the idea of reading a case.

“Remember,” Dutile says, “It’s a brief, not a long.”

We talk about the importance of criminal procedure. “Perhaps you have friends who vilify lawyers, who say we get people off on technicalities,” Dutile says. “Ultimately, I submit, it’s process that protects you and me. It works as a tremendous buffer between sovereign and subject. In much of the world, that’s not the case.”

By now Dutile has wandered to the other side of the amphitheater, about twenty feet from the podium. He explains proof beyond a reasonable doubt. “The founders of the Constitution made the judgment that it's better to err on the side of the defendant than with the government. You can think ‘if I had to put money on it, I'd bet the defendant did it.’ But that still isn’t proof beyond a reasonable doubt. That's why we say ‘not guilty’ instead of ‘innocent.’”

Dutile ends with a little bit about basic court structure. I’m trying to type it all down. Others around me are more cavalier. They write at a leisurely pace or not at all, tilting their heads at inquisitive angles.

It’s 2:50 p.m. and students start to shift in their chairs. We’re as bad as undergrads.

“In conclusion,” he says, “let me add that we’re not going to look at the trial going on in Los Angeles as a paradigm of the process.”

We laugh as Dutile shuts his manilla folder. Tattered pages from a legal pad stick out the top. It’s not his first time to teach this material, I think. But that’s all right. I’ve always been partial to crusty profs.

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