Monday, November 28, 2011


There is a growing crisis the realms of criminal defense, or rather constitutional defense that arises out of incidents wherein people are charged with crimes.

We are increasingly a police state, yet none dare call it such.  But things are out of kilter and the systems installed by the Framers are having diminishing effect in protecting liberties.

First off, it is interesting to note that the Federalist Papers contain no discussion of setting up a national policing operation; the focus there, and elsewhere with the Founding Fathers, was how the structure and substance of the Constitution, and the three branches, and federalism would protect people from overweening government.  The focus was always on protecting individuals.

In those days, it was implicitly understood that most criminality would be the focus of the states, although a proactive constabulary was considered anathema to the regime of liberty being installed here.  Executive agents running hither and yon, searching, snooping, investigating to justify and finance their existence was nothing the New Order, the Marvelous Experiment in Philadelphia, would ever tolerate, on the national or state level, because liberty was the goal and power the exception.

Along comes the Civil War, where Abraham Lincoln [the wealthy railroad lawyer pretending to be a poor defender of the impoverished] discovered and exploited the notion that cries of “war” and “emergency” could invite [to extremist minds “justify”] executive forays outside of the intended boundaries of the Constitution, and it became a short step from there to proactive constabulary and imperial presidency.

Thereafter, we started seeing the spread of city and county and state police forces with anticipatory patrolling, instead of reactive assistance, functions, all of whom had to rationalize their existences by “finding” crimes to report, investigate, solve, prosecute.  The populace increasingly and naively came to think of these executive snoopers and invaders as having something to do with preserving, instead of obliterating, liberty, so the bizarre hero worship of the zealous gendarme rose up.

Leaping forward, that great architect of liberty Richard Nixon studied the lesson of Lincoln and announced a “war on crime,” because the Great Emancipator taught that the clarion call of “war” causes the legislature to cede power and the judiciary to blink – it’s a political question, the judges say, if your invasion of individual liberty is accompanied by a “war” cry.

Nixon’s chief justice, Burger, was largely crying in the wind of his desire to eviscerate liberty in the presence of “war” on crime until the other three Nixon justices took office, Rehnquist, Blackmun, and Powell.  The 4 of them, usually with the conservative White, invited a rewriting of individual liberty, with “balancing tests” [when the Framers actually had already done the balancing, with liberty the unquestioned default], and with the fiction that the court “created” the “exclusionary rule,” which they lied about as having no constitutional basis [Holmes and many others realized and had held quite the opposite].  Those two heresies, balancing and the false claim that the exclusionary rule was manufactured [and hence could be cut back], started to give birth to the current craziness where power is the default and liberty the exception.  And the incorporation doctrine caused there to be little difference in the focus as between federal and state policing, from a standpoint of governmental philosophies hostile to liberty.

Well, so what, we still have the civilian jury to ultimately protect us, don’t we.  Uh…., No.  The citizenry increasingly perceives government as its friend, the accused as a dirtbag, and the shiny badged cops as their heroes.  We have turned the criminal justice system on its ear, with judges too flaccid or constabularial to protect us, and with jurors all too eager to placate their cop pals by convicting us.

The result of that is that the conscientious constitutional defense attorney needs to tread carefully when preparing and setting up his cases, because the system is on anti-liberty attack mode most of the time.  Some things need to be hit aggressively; some things need to be hit gingerly or not at all.  The courts, state and federal, are no longer in the business of skepticism about the government case [which is the real but misunderstood essence of the burden of proof being on government, whether at preliminary hearing or at trial, etc.], but instead are hostile to defendants who want to put their cases to the test, or who just plain, feel, or know, they are not guilty.

People who are not a part of the system cannot enter any court these days with a feeling that the system will protect them.  They walk into the courthouse and are immediately searched, having to disprove that they are a threat, while the cops from whom they seek protection and a remedy saunter in and out without interference or harassment.  When the court is moved to suppress evidence or otherwise forced to grudgingly side with an accused against a cop, the court always reluctantly gives the defendant his remedy, often apologizing to the cop for having had to suppress the illegally seized evidence, or whatever; the court never apologizes to the defendant for his constitutional rights having been violated.  Never.  And the Constitution violating cop is never scolded.  Never.

If there are sweet-looking little girl “victims,” or pitiable elderly “victims,” or female abuse “victims,” the defense attorney needs to be careful, lest aggressive attempts to vindicate one’s client at a preliminary hearing come back to haunt the client.  Attack a sympathetic “victim” at a prelim., and the full wrath of the court will descend on you…, or rather, on your client, even though the “victim” has been aggressively propped up [and sometimes schooled in what to say and how to say it!] by the government’s victim-witness machinery.  That kind of case requires what is left of the jury to hear a carefully engineered defense, because no judge is going to dismiss sympathetic victim cases. Never.

Of course, there are reactionary and foolish attorneys who would bulldoze ahead, taking such witnesses head-on, but that would be counter-productive to the clients’ interests and would simply embolden the victims to press their possibly hyped or manufactured claims and to get those attackable positions fixed in stone.  It’s a minuet right-thinking attorneys dance daily: how aggressive, how passive, how assaultive, how diplomatic need one be to give ultimate protection to a client.  If you get too thoughtlessly aggressive too early, all will be lost.

But that games playing would not be necessary, if we could count on judges being neutral, on burdens being consistently and faithfully assigned to the government, and on both of those existing in a dynamic where it is understood that the juries hearing this stuff would be balanced, neutral, unbiased, and devoted to the doctrine of distrust of government which was the intended hallmark of due process, with burdens fully on government, and with beyond reasonable doubt proof before there could be guilt.

Either everyone is protected, or ultimately no one will be.  And not everyone is right now.  And it is sad and ominous.

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