Unlikely (But Welcome) Outrage

When I worked at jedi jawa's office, my boss introduced me to what he called the "Dirty Bastard Rule." Basically, appellate courts deploy the Dirty Bastard Rule in order to affirm the conviction of someone charged with doing something heinous, even though there were errors in the trial process. The technical term for this is "harmless error," but Dirty Bastard Rule is more accurate and honest, in my opinion.

It wasn't always such. At one time, any error in a trial would justify a retrial. That was particularly true in Federal courts, where criminal prosecutions were rare. But with the incorporation of constitutional protections to the states, the Supreme Court gradually began to apply harmless error analysis to just about every potential flaw in trial procedure. I grasp the concept - sometimes the error is so minor, in the grand scheme of things, that it doesn't really undermine the verdict. More often then not, however, it seems to me like an exercise in judicial hand waiving to reach that conclusion.

All that is background to this column in the New York Sun, taking the Seventh Circuit to task for finding harmless error in the appeal of Conrad Black. I don't know if it's a legitimate case of harmless error or one of those hand waiving exercises. But it's nice to see someone worked up about the process, for a change.