the missing witness

My stupid fucking brain cannot explain in plain language why Seventh Circuit Pattern Criminal Jury Instruction 3.24 ("The Missing Witness") should or should not have been threatened to have been not given. Passive voice. Present perfect progressive tense. Double negatives. Uncertainty. Grammar fails. My job is killing English; killing English kills me. I hardly ever write or talk about my job because for long spells it is difficult, maddening, and uninteresting in precisely this way.

Doctrinal law courses, at their best, are storytelling sessions. There is a brief story. "The farmer agrees to buy a filly to breed with his stallion. Nobody knows it, but filly is barren." Questions of justice follow from the story. "Must the farmer buy the filly if the truth is discovered?" The law chooses a just outcome: mutual mistake, no contract. One is satisfied, one stretches one's legs, one walks out of the classroom to purchase a lemon-infused fizzy water. One graduates expecting to be stimulated by clean stories of injustice forever.

My experience with justice has been less clean. In metaphor: in the deli sections of Chinese supermarkets, there are live fish swimming in tanks alongside the iceboxes where carcasses of cleaned fish are displayed. (There may also be some western supermarkets with live fish, but I haven't paid attention.) One wants a catfish but thinks, I would like a fresh one, not one that has been dead for seven hours, and one points at a medium-sized manx in the tank. The butcher scoops it out with a net. Then he slams the net on the ground. He takes the fish by its tail, and hammers its head against the tile. He uses a short, sharp knife to make a quick incision the length of the fish, and in one practiced motion, he sweeps the new cavity of salty, wet, dun parts. Only then do the gills stop heaving. The innards go on top of thirty gallons of fish parts in a heavy duty trash bin. Flies move from the old parts and descend upon the new. The butcher then uses the dull side of his cleaver to scrape the sequins off the fish's black dress, and the sharp side to hack off its head. The fish offers a final convulsion, and then uncurls on a piece of white paper for one's delectation. It then costs $1.99/pound. It looks just like the clean fish on ice, but through the process of the slaughter one loses one's appetite.

The issues, boiled down to the stories, are simple: was he fired because he was black*, or because he failed a drug test? Can he seek medical leave if he has only been on the job for 340 days and the FMLA coverage begins after 365 days? Should the defense attorney have been permitted to argue that the government's failure to call a witness suggests that the witness's testimony would have been favorable to the defense? Is "this offer expires after 30 days" misleading, if other offers are available after 30 days? In abstract form, these issues are delectable. When I must tell stories about my job, these are the stories I tell.

* I note that I am not actually so stupid as to use any REAL examples from my work. These are hypotheticals, people!

But the actual process of reading, researching, and applying the law is a dull, gory slaughter. In a Fed. R. Crim. P. 33(a) motion, the issue and its outcome are pretty clear. The interests of justice do not require a new trial because of one confusing thing the defense counsel said in closing statements. But one can spend nine hours here - typing fifty words, then checking email and blogs for half an hour, then reading a Tobias Wolff short story, then eating bi bim bap, and then typing another fifty words, then Googling "how do disc brakes work," then watching Michael Jackson's daughter cry, then typing some more - because one's stupid fucking brain cannot parse a relatively simple issue of procedure in plain English.

I could do this in the style of unclear extended metaphors with muddy referents. I could do a zen koan. (Here, e.g., "A rancid grape can be clipped from the bunch.") I could draw this in pictures. I could do it Illinois state court style, with the parties filing sample orders and the court official just circling words he agrees with and crossing out words he doesn't. But Memorandum Opinion and Order style? Word Perfect is the cruelest irony of them all.