THE RULE OF LAW: Protecting The Guilty To Protect The Innocent 

"Not the least merit of our constitutional system is that its safeguards extend to all -the least deserving as well as the most virtuous." 

I received an email this week that contained a basic flaw in the understanding of what The Rule of Law, upon which our society is founded, means and requires in our system of justice.  The email stated:

"My philosophy has always been that no "innocent" man is incarcerated -well not for life anyway.  That maybe they aren't necessarily guilty of the crime they are serving time for -that surely they were "bad dudes" and their badness has simply caught up with them."

I wondered how may of you have unconsciously adopted this philosophy of the justice system, which unfortunately too many prosecutors and police and judges and politicians also adhere to in this nation?  I wonder if you realize that accepting the wrongful conviction of "bad dudes" as being a necessary evil places every citizen at risk of being wrongfully convicted, because the same overreaching by the police, the same "trashing" techniques and character assassination used by the prosecutors, and the same bending of the Rules of Evidence by the trial judges, used to convict these "bad dudes," once accepted practice and upheld on appeal by other judges to uphold the conviction of these obviously "bad dudes," become controlling case law precedent condoning these same practices in all trials of all citizens, whether they are "bad dudes" or not?

In the case of Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, at 170 (1951), Justice Frankfurter nicely summed up the ideals of our society underlying the philosophical problems with allowing the wrongful conviction of citizens because they are perceived by the community as being someone unworthy of a fair trial, when he stated:

"The heart of the mater is that democracy implies respect for the elementary rights of men, however suspect or unworthy; a democratic government must therefore practice fairness."

In Hill v. Texas, 316 U.S. 400, 406 (1942), The U.S. Supreme Court observed:

"Not the least merit of our constitutional system is that its safeguards extend to all -the least deserving as well as the most virtuous."

On 9/11 our nation was shaken to its core by the brutal attacks on our soil against our citizens who were just going about their everyday life.  In less than two years this nation has reached out its iron fist halfway across the Earth and conquered two sovereign nations deemed responsible for supporting those who shattered our peace, security and confidence in our nation as Fortress America.

In times of commotion the American people look to our government to take charge and reestablish our ability to walk the streets of our hometowns, free from fear.

The Courts, in time of war, are reluctant to place restrictions on the government This is all too evident in the recent decisions issued in the courts refusing jurisdiction in cases brought by the "enemy combatants" held in Cuba, or the thousands of immigrants swept up off the streets of the United States, only to disappear.  Held incognito, hidden away, refused contact with their families, refused even attorneys, for the fist time in the history of the United States of America, people are simply disappearing from their homes in the middle of the night.  The government, when pressed about the constitutionality of these new storm trooper methods of law enforcement, invoke the Holy Grail reason of "security," even to Federal Courts, and turn their back and walk away.

In his dissenting opinion in the case of United States v. Bollman, 24 F.Cas. 1189, 1192 (D.C. Circuit Court, 1807), Judge Cranch said something we should all consider carefully:

"[the] constitution was made for times of commotion." . . ."[In these times] '[we] ought to be upon our guard lest our zeal for the public interest lead us to overstep the bounds of the law and the constitution; for although we may thereby bring one criminal to punishment, we may furnish the means by which a hundred innocent persons may suffer.' "

This holds as true today as it did when it was written less than thirty years after the founding our nation.

The federal constitutional protections of the Bill of Rights are meant to protect citizens from "state judges, holding their office during pleasure, or from year to year [who are] too little independent [of the local spirit] to be relied upon for the inflexible execution of the national laws."  THE FEDERALIST, by Alexander Hamilton, No. 81 at p. 486.

Our system of justice is based on a finding of guilt by a jury of our peers of each one of the individual elements constituting the crime charged, beyond a reasonable doubt.  Not on whether or not the person on trial is an upstanding citizen, or a "bad dude."  The reason for this approach is eloquently explained in the case of Michelson v. United States, 335 U.S. 469, at 475-76 (1948):

"Courts that follow the common-law tradition almost unanimously have come to disallow resort by the prosecution to any kind of evidence of a defendant's evil character to establish a probability of his guilt.  Not that the law invests the defendant with a presumption of good character, Greer v. United States, 245 U.S. 559, but it simply closes the whole matter of character, disposition and reputation on the prosecution's case-in-chief.  The state may not show defendant's prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime.  The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so over persuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge.  The overriding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice."

Unfortunately, many prosecutors today, convinced some "bad dude" is guilty, pull every trick in the books to place his bad reputation, or prior conviction, before the jury, knowing once that is done, conviction of the crime charged, regardless of how little evidence supports the conviction, is almost assured by juries made up of citizens who think "bad dudes" ought to be in prison, even if they are not convinced "beyond a reasonable doubt" of his guilt on the crime charged.  In some cases, even when the judge has specifically ruled that evidence of a prior conviction cannot be brought into the trial by the prosecution, the prosecutor simply puts a police officer on the witness stand to "blurt out" the fact of the prior conviction, then "wrings his hands," and apologizes to the Court, knowing the damage is done, and reversals on appeal for such tactics are rare.  See, U.S. v. Forrest, 17 F.3d____(6th Cir. 199_).

Like the present charges brought against her husband in the Lacy Peterson case, the prosecution starts "prepping" the jury through the media, commenting on how confident he is the (undescribed) "evidence" he has will be enough to convict.  His affair with another woman will most probably be the most damaging evidence presented against him at the trial.  The mere fact the bodies were found near where Scott Peterson says he went fishing, by law, is not sufficient for a conviction.  "Mere presence" at the scene of a crime, without more, is insufficient as a matter of law to sustain a conviction.  You can bet the jury will not be given an instruction to that effect at trial.

It is the "bad dudes" who get wrongfully convicted more often than not, because of jury room full of well-meaning citizens, like the one who sent me the Message on my Message Board, discount convicting a "bad dude" of something they would not have convicted their town Mayor of doing, based on the same evidence, or a local police officer of doing, based on the same evidence, as somehow "OK" because the defendant is a "bad dude."

Yet when that happens, we all lose something precious under the Rule of Law.  We lose our presumption of innocence.  How many of us have had affairs during our marriages?  How many of us have people from our past who would describe us as "bad dudes?"  How may of us have someone who would describe us as "bad neighbors," or "troublemakers," or "problem children," or as a bad wife or husband, or parent, after a nasty divorce?  Do we draw the line at past criminal convictions, or the fact that we are bad Christians and do not attend church regularly or volunteer for the PTA.  Should our past mistakes, made 20 or 30 years ago, result in our incarceration for crimes we did not commit?  Should a jury wrongfully convict us because they don't like us?

When we are accused of a crime and go to trial in this nation, have we been indicated for our entire life and all the mistakes we have made during that life?  For them to added up by a jury, and based on all the mistakes we have made in our life, convicted on little or no evidence and sent to prison because we, in the jury's judgement, are a "bad dude?"

Given those guidelines, and the unlimited investigative money and power of the prosecution, there are few of you I could not convince a jury to convict of something as emotional as a charge of rape or child molestation or murder, with minimal evidence.

As was stated in The Declaration of Independence:

"We hold these truths to be self-evident, that all men are created equal and endowed by their creator with the rights to life, liberty and the pursuit of happiness."

Last time I checked, that included "bad dudes" also.  We all make mistakes, and we should not be held accountable for them for the rest or our lives.  People grow older, they grow wiser, they learn from their mistakes in the past.  People change as they go through life.  Even "bad dudes."

Until next time this is Jim Love reporting From The Front Line.

E-Mail Jim

©2003-2004 James Love. All Rights Reserved.
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