Judges are also concerned that their decisions not be overturned by an appellate court. As noted earlier, an appellate court does not write opinions on cases unless it thinks the appellant has an argument worth taking seriously, even if it rejects that argument in its opinions. And the argument rejected today may become more plausible tomorrow in the same or a higher court of appeals. This means that losing positions--for example, that the judge should tell the defendant his constitutional rights and not just ask the defendant whether he has read them in the plea agreement--are considered to have merit and may be the winning positions at a later date. Lawyers who raise issues that are heard, even if denied, in this way push the due process standards above the case law standard that is called the law. Given that these relations between winning and losing issues exist in case law, and that trial court judges do not want to be overturned by appellate courts, it is risky for trial court judges to adhere to the case law standard rather than to a more demanding and protective standard.
It is clear that the judges do more than case law requires of them, but it may be less obvious that they do less than the procedural rule (Rule 17) asks of them. Most judges do not explicitly tell defendants that they have a right to plead not guilty (Rule 17.2d), and although Rule 17.2a directs them to explain the nature of the charge to defendants, most of the time the judges simply name the crime and the statute that describes the crime and do not explain what it entails to the defendant. It is the case law which gives the judges this leeway. 4
But neither the procedural rule nor case law fully explains why the judges handle guilty pleas as they do. Neither case law nor the procedural rule specifically discusses the idea that some topics should be given more attention than others. But as a group, the judges clearly give the most elaborate care and attention to spelling out the conditions of the plea agreement and the sentencing possibilities and the least attention to the nature of the charge and to the possibility that the defendant was coerced into pleading guilty.
The spoken genre of due process law, the guilty plea, shows the influence of both written genres of due process law, but it mirrors neither, and in the elaboration of some topics and the abbreviation of others, the spoken genre is relatively autonomous of both written genres. Thus, just as the written genres of law differ from each other in their view of what must be done to guarantee defendants' constitutional rights in the guilty plea, the spoken genre is also distinct in its interpretation of due process protections, suggesting the genre-based nature of ideological diversity within the legal system.
The purpose of this chapter is to explore some aspects of the nature of the dominant legal interpretive perspective through examination of intertextual relations within written law and between written and spoken law. In chapter 1, I discussed the way in which law is seen within a Marxist tradition to be a form or expression of state ideological hegemony. In my view, law as a form of cultural hegemony is less monolithic than the term hegemony suggests and also less taken for granted and implicit than in some uses and meanings of hegemony. But our understanding of the nature of ideological diversity in law is not well developed: Marxists see ideological diversity dual