In pretty much every news story involving a prosecution, they include the max sentence. If the statute provides for a sentence of probation to 20 years, it will say “the defendant faces a sentence of 20 years.” If there were three counts, it will say 60 years, because math. Of course, this is nonsense as every lawyer knows, but they have space to fill and the public, for better or worse, latches onto numbers for dear life.
And then there are the 91 counts. It sure seems like a lot of counts, and it may be the most restated fact regarding Trump’s prosecution. And it means nothing. After the decision by Fulton County Judge Scott McAfee, it’s down to 88 counts. Oh no, he’s going to get away with it! Or the prosecution can re-indict on the six counts tossed for lack of specificity. Or not because, well, they were just gilding on the lily.
Sure, there are cases where a defendant is charged with distinct offenses that, while related, involve separate elements and, if convicted, will result in consecutive sentences, but then there’s smurfing counts, breaking up the same series of acts into their smallest, individualized components, in order to create the impression that there was far more wrongdoing, far more criminality, than there was.
What the media, and perhaps prosecutors, realize is that people love numbers. Law is fuzzy and nuanced, when it’s done right, but numbers are clear and easy. Ten counts is bad. Twenty is worse. We know that because 20 is more than ten, duh. So what if its the same course of conduct? So what if the sentence will be determined based on a guidelines grid and not the cumulative maximum?
The irony in the Georgia case is that the judge didn’t toss the counts because of any lack of evidence to sustain any element of the offense, but for an entirely proper reason: the indictment lacked sufficient specificity to notify the defendants of the specific details upon which the charge was based. Due process demands that the defendant be given sufficient detail to prepare a defense so as not to be sandbagged at trial with factual allegations from left field. It’s not that big a deal for the prosecution to do, either in the first place or in response to an order dismissing inadequately pleaded counts. It’s also not that big a deal to let it go as it really won’t change a damn thing other than give the defendant the opportunity to crow about how he beat the rap and it was all a hoax to begin with.
But it’s the harping on numbers that gives rise to this opportunistic confusion, and the worst perpetrators of this pointless idiocy are the legal analysts who sycophantically respond, “Oh yes, Alex, that’s exactly what’s wrong.” It’s not that they are necessarily ignorant, though they may play an ignoramus on TV so as to keep their gig and aspire to taking over Sean Hannity’s or Joy Reid’s slot some day, but that the job is to fill airtime with sound and fury signifying nothing.
To the extent they gush empty outrage, they set a tone for the legally-challenged public to believe that one side owns righteousness while the other is shooting blanks at best, and is often frivolously full of it at worst. In most cases, there are sound arguments for and against, and a fair and accurate recounting would involve explaining both and then explaining why one side might have the stronger position. It’s not as if they wouldn’t get the opportunity to push their cause.
But what isn’t legitimate is to only present one side of an issue and suggest that there is no possible countervailing argument, thus leaving only fools and knaves to disagree with them. To prove their point, they stare into the camera and intone in a solemn voice, “and remember, he faces 91 counts.” Until conviction, neither 91 nor 191 means he isn’t innocent. But more importantly, the 91 counts never mattered either way, just as the remaining 88 is still a big number and still means nothing.
