Obama and the gang are deadly serious.
There’s a phrase repeated over and over by civil libertarian and ACLU types and often attributed to either Justice William O. Douglas or Justice Louis Brandeis:
“Better 100 guilty parties go free than one innocent person be convicted.”
I found the original reference is Blackstone and the figure is 10, not 100, but the point is the same. If the justice system is to err, it must err on the side of the criminal defendant.
I once wrote a book on crime and after hearing this phrase for about the 20th time, I came to one conclusion: Whoever said it wasn’t planning on living in the same neighborhood with those 10 or 100 guilty criminals.
Over the last 40 years, a series of U.S. Supreme Court rulings have turned criminal investigations into an incredible obstacle course, wringing just about every last trace of street smarts out of the law enforcement profession. I was talking to an emergency preparedness consultant at a New Year’s Party and he burst out, “I think I’m going to start a business training cops to be observant. They don’t see anything anymore. You give them an assignment and they’ll go and arrest someone, but they never notice anything along the way. There was an older generation of cops who were always picking things up but cops don’t do that anymore.”
“Well, isn’t that interesting,” I replied, “because that’s exactly what the Supreme Court has been telling them to do over the last forty years.” Then I told him about Mapp vs. Ohio and “stop and frisk” and probable cause and the exclusionary rule. This was all new to him but he understood right away — cops aren’t allowed to go on “hunches” and “professional instincts” anymore. Instead, they quote citations from some court decision of twenty years ago. They may look in plain sight during a traffic stop but they cannot open a trunk without a warrant. When they apply for a warrant, they have to describe to describe exactly what they expect to find before they find it. There can be no generalizations or “boilerplate material.”
Every criminal proceeding in the country begins with an “evidentiary hearing” in which the defendant can — as Alan Dershowitz coined it — “put the state on trial.” What were the circumstances that led to the warrant? Where was the “probable cause” (the phrase is taken directly from the Fourth Amendment)? Why would a suspect ever make self-incriminating remarks if he had understood his Miranda rights? His confession must have been coerced. And on and on.
We’ve gotten used to this. People are still convicted of crimes — often on the unfortunate tendency of juries to believe eyewitness identification, even though it is without question the most unreliable form of evidence. (Look at the verdicts being overturned by groups like the Innocence Project and you will find they are almost always convicted on dubious eyewitness identification.) DNA evidence has put some bite back in the prosecution, but even with DNA there will be challenges to lab work. It is clear that if you have enough time and money, you can tie up the system almost indefinitely. High-profile cases such as Claus Von Bulow and O.J. Simpson show that a defendant with an unlimited bank account can almost always hire lawyers who will find a way to get them off.
How did the system end up in this stance? Go to any judicial conference or law school classroom and you will hear the same characterization over and over. The justice system pits “the lone individual against the awesome powers of the state.” It’s an unequal fight right from the beginning. The state has “awesome powers” while the individual has only his defense lawyer, who may not even be getting paid.
Somehow it never occurs to these professors and legal experts that the state also has awesome responsibilities. It has to protect everyone, whereas the criminal defendant only has to worry about himself. But no matter, that’s how the system is geared and we’ve learned to live with it.
Until now, at least, because the American justice system is about to go global. We’re about to export our peculiar brand of justice, at least as far as dealing with terrorism is concerned. We’re soon going to be spending a lot of time trying to explain to the world just exactly how we ended up being “put on trial” by our terrorist attackers.
Let’s start with the dismissal last week of the charges against the five Blackwater security guards who were accused of killing 17 Iraqis and wounding 20 others in a 2007 incident in Baghdad. I happen to have a very good source who was involved in the military investigation of the incident and he said the evidence showed the Blackwater guards were very much at fault. There was very little excuse for what they did. In any case, it would have been interesting to hear their side of the story at a trial.
But that’s never going to happen now because the case was dismissed on procedural grounds. Now I know there was a good argument against using the evidence. The guards were debriefed by the State Department under the premise that their statements wouldn’t be used against them and then they were included in the indictment anyway. Certainly their Constitutional Rights were violated.
But what these decisions never consider — and indeed what the whole court system has never considered in the last 40 years — is their effect on the community at large. In this case, the results have caused huge strains between the U.S. and Iraq. The Iraqis are predictably dismayed by the decision. To them, the explanation is obvious — Americans simply aren’t going to prosecute their own people for killing Iraqis. No amount of pontificating about the Fifth Amendment will ever convince them any differently.
That’s the way it went in the U.S. for decades. People in poor communities were convinced that the police and justice system didn’t give a hang about crime in their neighborhoods. Why else would they let people stand out on the corner openly dealing drugs? In fact, the rumor was always that the cops were in the pay of the drug dealers and that’s why they didn’t crack down. In that situation, it would be the height of folly to report a crime to the police or — god forbid! — volunteer to testify against criminals. Only when these policies were reversed by Mayor Rudy Giuliani in New York in the 1990s did the tide begin to roll back and communities began to support the police in trying to curb crime.
A man of faith in a godless age is hitting Americans where it hurts.
Mr. and Mrs. American Spectator Reader, let P.J. O’Rourke talk sense to your kids.
In Britain, defending your property can get you life.
The debacle of this president’s administration is both a cause and a symptom of the decline of American values. Unless Congress impeaches him, that decline will go on unchecked. An eminent jurist surveys the damage and assesses the chances for the recovery of our culture.
It won’t take long for conservatives to scratch this presidential wannabe off their 2008 scorecard.
The American Christmas, like the songs that celebrate it, makes room for everybody under the rainbow. Is that why so many people seem to be hostile to it?
Was the President done in by the economy, or by the politics of the economy?