State v. Lewandowski (CA2 3/31/09)

This is not a bad opinion, and we will assume that it is legally correct, but it does something that bothers us about many criminal opinions.

The case holds that a criminal restitution order can’t be entered until the end of the sentence/probation (because that’s what the statute says) and that doing so before then is fundamental error (because now that such orders bear interest an early entry constitutes an excessive sentence).

That’s about it. So why does the opinion tell us what the crime was, how Lewandowski acted at the scene, what color truck he was doing drugs in, what the evidence of his drug use was, and how he fled and was captured after doing a typical dumb-criminal thing? None of that has anything to do with the holding, which involves issues of law.

Criminal opinions do this all the time. No matter what the issue on appeal, we get all the lurid details. This is a waste of the court’s time and of ours. And in some cases it blurs the point of the opinion.

Some opinions, of course, have to do it; we’re not talking about those. We know why opinions in capital cases, for example, spend pages detailing the evidence. The opinion must say as much as the issues need. But they shouldn’t say more.

We don’t know whether it makes things better or worse that the court in this case saw the problem. It issued a memorandum opinion on some other issues raised in the case (under the rule we just chided CA1 for ignoring), an opinion that probably did require discussion of the crime; for the published opinion, it said, it was stating facts “to provide a context for our discussion.”

Context? What context? The context for the court’s discussion was the sentencing, which the text mentions so briefly that more had to be added in a footnote. How does the arresting officer’s name or the color of the truck or the size of the bag of crystal meth, for example, give any context to anything else in the opinion?

Sometimes it seems that opinions are written to a template. The template apparently contains a heading called “Facts and Procedural Background” and somebody must get points for plugging stuff in under that heading – even though whoever’s doing it has no conception of what facts or procedural background ought to be there. We don’t necessarily criticize the use of templates but they ought not to be a substitute for thought.