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Wednesday, August 10, 2022
What is so bad about Saul Goodman and other questions
Two questions about the penultimate Better Call Saul, with spoilers, after the jump.
What is bad about Saul?
As I wrote several episodes ago, the theme of BCS that decent Jimmy McGill becomes irredeemable Saul Goodman and we have moved deep into that. Last night included a flashback to a Rosencrantz-and-Guildenstern-type meeting, early in the BB timeline, between Kim and Saul and between Kim and Jesse, both of which are designed to show how far Saul has gone.
Here is Rolling Stone' Alan Sepinwall, a critic I love reading and listening to and seems a generally liberal person, as far as he shows in his writing, on the Kim-Jesse interaction:
Jesse is only there because his buddy Emilio — a.k.a. Walter White’s first murder victim — has come to Saul seeking legal representation. (In the “Better Call Saul” episode of Breaking Bad, Jesse tells Walt that Saul got Emilio out of trouble on two different occasions, despite the cops having him dead to rights.) Like Kim’s various interactions with Saul and/or Gene in this episode, she says very little, just waiting for the nicotine to kick in and hoping that the rain will stop before she has to listen to too much of this overgrown kid(*) bragging about ways for criminals to evade the justice system. She believed passionately in her work as a public defender, but guys like Jesse, Emilio, and Combo are the dark side of that work — the ones who present an ongoing danger to others each time a lawyer like Kim or Saul gets them off. And she really can’t stand listening to the future Mr. Driscoll praise the legal chicanery of the man she hopes to never see again.
This is disturbing. On Sepinwall's framing, Saul is bad because he does what a defense lawyer is supposed to do--he defends clients and forces the state to prove its case beyond a reasonable doubt before putting them in prison. Sepinwall talks of "evad[ing] the criminal justice system" and "legal chicanery." Maybe Saul did something illegal or unethical in helping Emilio, Combo, and these other clients. But (again in the spirit of "show, don't tell") we have not seen it, nor have we seen it as different in kind from what "Jimmy" did. Jimmy/Saul did a lot of illegal stuff--lied to the court about Lalo's identity, helped deal meth, provided information on a murder, and laundered money. And maybe that illegal stuff is part of the representation he is does here. But, again, we have not seen it. Successfully representing even obviously "dead to rights" people in court should not be mentioned in the same breath.
Worse, Sepinwall distinguishes the criminal defense Jimmy does from the criminal defense Kim wanted to do (before she threw it away on the scheme that resulted in Howard Hamlin's murder), framing the latter as noble and the former as the corrupt work of the evil Saul Goodman, the "dark side" of criminal defense. In fact, it is the core of the work of a defense lawyer. A lawyer who only wants to defend innocent people needs to find another line of work. Kim wanted to limit her defense to indigent people who committed small-bore crimes and were caught in the system. Which, fine. But her work is not nobler or more moral than what Saul does (again, assuming he stays within legal lines as to in-court representation).
Could Saul and Kim be charged with a crime?
I pose this to crim law people out there. In last night's episode, Kim goes to the DA and signs an affidavit detailing their scheme (which she also show to Howard's widow): They falsely made it seem that Howard was abusing cocaine, caused his work on a case to implode, and destroyed his personal and professional reputation; when he confronted them about the scheme at their apartment, Lalo (who was there on a separate matter and not connected to the scheme) murdered him. There is some talk about whether she will be charged with anything; she says she does not know* and that hers is the only evidence of what happened.
[*] Howard's widow is angry about this, pointing out that she is supposed to be a great lawyer. Yes, because great lawyers know everything about all law. That is why Law Twitter is the way it is.
The question appears to be whether they could be charged in Howard's death. Could she (or they) and for what? Can felony murder extend that far--to murder by an unconnected person after the underlying felony was complete? Is there some other theory of criminal liability for Howard's death? What about for the underlying scheme to destroy his reputation, separate from his death.
There is a separate prospect of a civil suit (which the widow mentions, although Kim does not have much money). Maybe defamation or IIED? Something else? There is a statute of limitations problem--six years elapsed in the BCS/BB universe--although I imagine a good argument for tolling based on fraud.
Leaving comments open because I would like to hear from some crim folks.
Posted by Howard Wasserman on August 10, 2022 at 09:31 AM in Howard Wasserman, Teaching Law | Permalink
Comments
Whoops, the NM Statute does not run while the defendant is out of state. So Kim can be charged for the fraud.
Posted by: Jack Chin | Aug 12, 2022 9:18:46 AM
New Mexico's statute of limitations goes up to six years, so I think it has run for everything except murder. NMSA § 30-1-8. I don't see felony murder liability for the Howard scheme because New Mexico applies the inherently dangerous felony rule,and the fraud did not foreseeably create a risk of death. Saul and perhaps Kim are participants in an ongoing drug conspiracy with Lalo, and there is a felony murder argument there, particularly because it appears that Kim was attempting to Kill Gus.
Posted by: Jack Chin | Aug 10, 2022 3:20:55 PM
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