The Best (and Worst) Dissent I've Seen

Not a matter of great legal significance, but I've got to share a passage from a case that Tom showed me this evening. It's from a dissent by former West Virginia Supreme Court Justice Neely in the 1993 case of Wilt v. Buracker, 443 S.E.2d 196. If you don't recognize the justice's name, you'll remember it after reading this:

Notwithstanding the broad boundaries of Rule 702, there are, at least theoretically, limits to the admissibility of expert scientific testimony: as the case before us now illustrates, courts at least have the sense to toss out egregious rubbish like that of Dr. Brookshire's. The problem in criminal cases, however, is that the prosecution, unlike the defendant, has ready access to expert witnesses and fabulous laboratory facilities. Thus, a surprising number of novel techniques gain admissibility without the presentation of defense expert testimony because a criminal defendant often cannot afford to hire even a good Zulu witch doctor, whose fees and travel costs would exceed guidelines for such things.

What tends to obfuscate this phenomenally pervasive problem in the criminal system is the fact that an ordinary street criminal with a little money can usually grind the whole criminal prosecution process to a halt by hiring one of the few members of the private bar who specializes in paid criminal cases and is competent. A prosecutor can't afford to waste lots of valuable resources fiddling around with a knowledgeable and competent middle-aged lawyer, so he cuts a deal and moves on. But those dynamics apply only to ordinary crime-- crime, in other words, where the visibility and publicity won't get the prosecutor appointed federal judge, or elected governor or United States senator.

Once, however, a crime of fashion such as rape, child diddling or low-level political corruption is publicized, the prosecutor will devote every single resource in his or her office to the case because that prosecution advances the personal agenda of the prosecutor. After all, the truly great corruption is not the penny ante peculations of two-bit politicians, but the surpassing corruption that occurs when a whole bureaucracy prostitutes itself through trading for its own account. **212 *55 Bigger budgets, greater staff, more computers, higher government salaries, increased prestige and improved job longevity will take all the self-proclaimed righteous, anti-corruption, good government enthusiasts and, in the space of one nanosecond, turn them into salivating whores.

A check of Westlaw reveals that this is the only use of "salivating whores" in any reported American opinion. No further comment required.