A Commentary on the Barry Roberson Case
By Jim McCord
By Jim McCord
Too many cases like Barry Roberson's have comprised a "garden variety" routinely rejected by courts on technical grounds of "finality;" regardless of supposedly tolerable trial irregularities and insufficiency of evidence. Back in the 60's -when I consulted on the ABF project to describe American criminal justice-such technicalities supposedly achieved justice rather automatically.
These legal formalities actually fall far short of that: revealed almost daily as more innocent convicts are released. This is forcing an increasingly humane society to recognize the inadequacy of "verbal" law to achieve justice by itself. The ascending challenge of modern jurisprudence is to peer through such verbiage to what Carl Llewellyn called "the neglected beauty of the obvious." THE COMMON LAW TRADITION: DECIDING APPEALS (l960).
That pivotally empirical study blows the whistle on an old "formal style" of lawyering: whereby left-brain" deductions from written law dictate case results without undue entanglement in the facts of individual cases. In theory that afforded a "rule of law" (not of men) which was at least efficient in locking up a lot of suspects.
Llewellyn revealed though that the greatest judges have long reflected instead a "grand style." This was exemplified by the ability of Justice Homes, notably, to peer through reams of paperwork and discern the "homely essence" of cases. He founded American legal realism. This pragmatic mainstream of modern jurisprudence-developed especially by Llewellyn-coincides with an overall struggle of humanity to grow beyond the old tyranny of words.
A virtual revolution in criminal administration is now signified by Governor Ryan's suspension of death and the Sheck "innocence" project; along with the emphasis in John Huey's new website (www.VoiceofJustice.com) on the obvious necessity for thorough investigation to round out the right to counsel. We all are shamed when legal technicalities are allowed to cloud the glaring failure to call vital witnesses at Barry's trial.
The great judges of the grand tradition were better than most at tapping higher sources of common sense for discerning untapped instructiveness in the facts of individual cases--pointing toward just results that are obvious. Written law and verbal technicalities can still be guidelines for the effort, but need not dictate case results automatically.
These legal formalities actually fall far short of that: revealed almost daily as more innocent convicts are released. This is forcing an increasingly humane society to recognize the inadequacy of "verbal" law to achieve justice by itself. The ascending challenge of modern jurisprudence is to peer through such verbiage to what Carl Llewellyn called "the neglected beauty of the obvious." THE COMMON LAW TRADITION: DECIDING APPEALS (l960).
That pivotally empirical study blows the whistle on an old "formal style" of lawyering: whereby left-brain" deductions from written law dictate case results without undue entanglement in the facts of individual cases. In theory that afforded a "rule of law" (not of men) which was at least efficient in locking up a lot of suspects.
Llewellyn revealed though that the greatest judges have long reflected instead a "grand style." This was exemplified by the ability of Justice Homes, notably, to peer through reams of paperwork and discern the "homely essence" of cases. He founded American legal realism. This pragmatic mainstream of modern jurisprudence-developed especially by Llewellyn-coincides with an overall struggle of humanity to grow beyond the old tyranny of words.
A virtual revolution in criminal administration is now signified by Governor Ryan's suspension of death and the Sheck "innocence" project; along with the emphasis in John Huey's new website (www.VoiceofJustice.com) on the obvious necessity for thorough investigation to round out the right to counsel. We all are shamed when legal technicalities are allowed to cloud the glaring failure to call vital witnesses at Barry's trial.
The great judges of the grand tradition were better than most at tapping higher sources of common sense for discerning untapped instructiveness in the facts of individual cases--pointing toward just results that are obvious. Written law and verbal technicalities can still be guidelines for the effort, but need not dictate case results automatically.
CRITIQUE
The beauty of personal maturity is that it enables lawyers and judges to maintain the rule of law in applying written guidelines flexibly; with non-arbitrary discretion informed by simple common sense. The great judges mastered this art. If they had been involved Barry Roberson might have been afforded justice years ago.
McCord holds the B.S. in Ed. from Southwest Missouri State, the J.D. from Washington University of St. Louis and the L.L.M. in jurisprudence and public administration from the University of Pennsylvania.
He has served as consultant to the American Bar Foundation Project to Describe the Administration of Criminal Justice in the United States; legal editor and writer for the Practising Law Institute of New York City; and editor and supervisor of the Commerce Clearing House Government Contracts Reporter. He is the author of "Commentaries on the Robinson-Patman Act" (Practising Law Institute, 1969), and has written and/or edited numerous articles and books.
McCord holds the B.S. in Ed. from Southwest Missouri State, the J.D. from Washington University of St. Louis and the L.L.M. in jurisprudence and public administration from the University of Pennsylvania.
He has served as consultant to the American Bar Foundation Project to Describe the Administration of Criminal Justice in the United States; legal editor and writer for the Practising Law Institute of New York City; and editor and supervisor of the Commerce Clearing House Government Contracts Reporter. He is the author of "Commentaries on the Robinson-Patman Act" (Practising Law Institute, 1969), and has written and/or edited numerous articles and books.
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