STREAM OF CONSCIOUSNESS RUMINATIONS ABOUT CRIMINAL DEFENSE

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.

Jurors need to have guts and insight....

As we approach the now iconic date of “9/11,” it is important to take stock of who and where we are and how enduring we are going to invite and allow our values to be.  The real danger of talking of dangers, real and imagined, is that liberties become eclipsed by cries of “security,” and when cries of security trump liberties, the marvelous experiment in Philadelphia becomes for naught: we become no better than the banana republics that we pretend our self-decreed “exceptionalism” has allowed us to rise above.

Exploiting the hysteria associated with 9/11, the Bush administration purposefully engineered and presided over the most sustained period of constitutional decay in our history, and we have to reverse that before constitutional gangrene consumes the body politic.  Terrorism and alarmism by our own government against our own people is far worse than any attacks on our buildings by outsiders.  

Two of the many original and founding notions that we must restore with vigor are the presumption of innocence and the necessary doctrine that prevents one from having his liberty taken by government by criminal conviction unless a civilian jury, embracing that presumed innocence, is convinced beyond a reasonable doubt about the truth of the government’s claims. And even when there is sufficient evidence, a jury is not required to find a person guilty, in contrast with the inverse standard that when there is insufficient evidence, a jury is mandated to vote not guilty.

What seems too often lost in such discussions is the fact that government has enormous incentives for convictions, and no true devotion to objective, neutral justice.  The yearning for justice is just that, a yearning.  And the claim that such is the goal of government is a civics book nostrum increasingly divorced from truth.  Government is to justice what cancer cells are to health, and that is why the Framers announced that government is evil, sometimes a necessary one, sometimes an intolerable one, but always evil, if liberty and justice be the goal.

Time and again, in the courts in this and other areas, one hears prospective jurors voice various police state sentiments such as “if he weren’t guilty, he wouldn’t be here,” or “where there is smoke, there is fire,” or “I would always tend to believe what a policeman says,” or “if the case has been around this long, there must be validity to the charges,” or other similar Sieg Heil!-type idiocies that reveal only that we fought our Revolution in vain, and that people are increasingly ignorant of our own history and of the news all around about government and police corruption.

We will lose it all if the citizenry does not wake up to the fact that liberty, not power, is the necessary foundation of this Republic, and that the citizenry, speaking robustly through jury pools, is the ultimate protector of that liberty.
Every time a juror presumes their government is telling them the truth, we inch ever closer to the abyss.  Jurors need to have guts and insight, or all will be lost.

The Anthony Verdict; It is as it Should Be

There are many messages communicated by the Casey Anthony trial and its outcome, but the most important one is that the hue and cry erupting from the acquittals reveals that the Framers’ notion that freedom would lie with civilian juries interposed between government and a person’s liberty is in peril. Convictions were intended to be few and far between and difficult to obtain, as evidenced from the presumption of innocence, with the burden of proof on the government, and with an accused’s entitlement to an acquittal if the government did not carry their burden beyond a reasonable doubt, while never an entitlement of government to receive a conviction even if there was enough evidence, and with a strict rule that none of the burden could be carried by compelling evidence from the lips of the defendant. The final protection of the populace is the power of the jury to disregard everything that the judge says about the law and to deem technically guilty people not guilty, a power that the courts vigorously and jealously refuse to tell the jury about, but one which preceded the very framing of the Constitution and still exists.

Juries were to be skeptical of government [and government includes judges!], and the default was to be with liberty. But in our growing “Sieg Heil!” society, where citizens and judges alike are increasingly groupies of cops and of The Man, we have turned on its head the greatest protection we all had against tyranny, that the default position in the Republic is with the individual and against government, with liberty and against power.

The outcome of this trial is precisely what it should have been, where the government concedes that it does not know the cause of death and that it cannot rule out accident. In retort by the reactionary mob, much is sought to be made of the fact that Anthony is a liar and of a suggestion she is a slut. Interesting thing about lying in the public sphere: cops, DAs, judges, criminalists and other experts, and politicians at all levels from president on down, can lie, and they do, with nary a downside, but if an accused is found to lie about stuff, that signals his or her death warrant. Wow, that’s a curious and dangerous coda. Yeah, yeah, she was a party girl too. Being a party girl and slut and liar does not add up to the requisite proof that she is a murderer, nowhere nearly. It shows she is a liar, and verdicts went against her on that score.

We know that something obviously happened to little Caylee, but what, and by whom, and exactly when we know not. And that is why a highly political DA’s office would try to highlight the claimed lowlifeness of the defendant, as a substitute for evidence. If you can stir up the passions and prejudices of the jury, even though you are ordered not to do so, then maybe they will be hoodwinked and infuriated into voting guilty, which happens more than people would want to know; it happens all the time, across this Fruited Plain.

Thank God! we had a jury that was not of the government groupie outlook on life, but one that instead displayed the “prove it; show me” animus that was intended to be part of the jury’s duty, but which is sorely missing these “law and order” days.

Being an armchair juror is kind of fun, because you see much more than the real jury sees, and you can bloviate and tisk-tisk endlessly, without having to concern yourselves with the downside of poor judgment. The jurors were told they had to have an abiding conviction of the truth of the charge, based on what they saw in the courtroom, or the defendant was entitled to an acquittal. And she got it.

Does this mean Casey is innocent? None of us is innocent. The criminal justice system does not deal with “innocence,” but rather either with the default and baseline of not guilty, or with the heavy-carried guilty. This is a case in which guilt was not sufficiently proven; it is not one in which innocence was at all proven. And that is the rule of the game, that is the law, a more powerful and fundamental rule and law than the definition and punishment for murder, so “law and order” types should celebrate, not berate.

Was Justice done? What is Justice? If its definition as a constitutional construct encompasses the notion that we all remain free unless or until the government proves properly and sufficiently to our peers that our freedom is not deserved, based on found facts, then Justice surely was done. If your definition of Justice is roughly that of the self-righteous inquisitors in 1692 Salem, Massachusetts, maybe Justice was not done. Only your soul, or its absence, can define that for you.

http://www.kennedyroelaw.com

Another Innocent Man Convicted in this Land of the Free

Well, it’s happened again, and it will happen over and over and over until  juries stop presuming that their government officials, judges, prosecutors, cops, etc., always tell them the truth: another factually innocent man has had his case set aside after decades in prison, and largely based on erroneous eyewitness testimony.

As reported in the Los Angeles Times [why not in the Desert Sun???], Francisco Carrillo was wrongfully convicted, as digested here:

[LA Superior Court Judge] Bacigalupo overturned Carrillo's 1992 murder conviction Monday after witnesses recanted their identification of him as the gunman and a dramatic reconstruction of the shooting raised doubts about whether they could have ever reliably identified the shooter.

The murder case against Carrillo hinged solely on the word of six teenage boys who had been standing with the victim on a Lynwood street when the gunman drove by. One jury deadlocked 7 to 5 in favor of acquitting Carrillo, but a second jury found him guilty. He was sentenced to two life terms in prison.

Last week, five of the six witnesses testified at the Compton Courthouse that they had not clearly seen the gunman. Among them was the victim's son, who said he made his identification because one of his friends at the scene said he recognized Carrillo as the shooter. That friend also recanted.

The case underscores what legal experts say is the danger of eyewitness testimony. Studies have shown that faulty identifications are the biggest factor in wrongful convictions and that witnesses are particularly unreliable when identifying someone of a different race. The witnesses who identified Carrillo are black, while he is Latino.

This case is merely the tip of an outrageous iceberg of wrongful convictions; they happen all the time. The problem with unearthing them is that not all wrongfully convicted people have the wherewithal to reopen their case, and where the sentences are comparatively short, they would have completed their sentences by the time the system was able to help them.  And a lot of the reason that most of these things don’t get rectified is because judges and DAs are reluctant to give defense attorneys the tools to attend to the matter.  Our U.S. Supreme Court, supreme only in its finality and not in its wisdom, has famously held that for liberty-suffering people to come to them for habeas corpus relief, the Great Writ which is supposed to protect all against arbitrary and evil government [the Framers recognized government is evil; it’s only modern statists who deny such], one must pose an argument other than that he is innocent!  Innocence alone is not enough to undo a wrongful conviction in the tribunal set up to protect us from overweening government!  And we thought Saddam was an extremist in his assaults on Liberty!  Moreover, it is not a foregone conclusion that one can get a court order for post-conviction DNA testing, which is the vehicle by which many wrongful convictions are overturned.  Trial courts and DAs make such very difficult to obtain.

Jurors must, must, must start to look at stuff presented to them with the fundamental skepticism the Framers intended, or else they or their loved ones could, indeed eventually will, get caught up in the illegal conviction-o-mania besetting this land for the last 3 or 4 decades.

When citizens presume their government to be wise, honest, correct, and supportable in its actions, that defines a police state.  And Folks, we are there.  One of the biggest mistakes a defense attorney can make is to call a lying cop a liar; most jurors these days are police groupies and they take great personal umbrage when their badged “heroes” are attacked.

We see instances daily of police and governmental treachery and duplicity and evil, but jurors do not want to believe the one who is smiling at them in court, Boy Scoutishly, is one of those sorts.  And trying to convince the pro-government jurors that the prosecutor has motives other than presenting the unvarnished truth is tantamount to suggesting that the Father of our country, George Washington, cycled his slaves in and out of his Philadelphia government residence every 6 months because of the law that if they lived in Pennsylvania more than 6 months, they would be free, and he didn’t want that.  [Huh?  He did that?  Ooops, sorry, bad example, I guess.  Or the apt one!]

We have a moral imperative in this land, especially if we are going to continue to boast the claim of “exceptionalism,” to understand that liberty is the ascendant value, power is the diminishing value, and the devices the Framers left us for keeping the proper relationship there [beyond reasonable doubt burden on government, presumption of innocence for accused people, neutral jurors working with a neutral judiciary to stand against the waves of tyranny, right to bear arms in the citizenry, warrants for liberty invasions, and a non-proactive constabulary], or else the tears shed at 4^th of July parades when the Flag goes by is sheer hypocrisy – or worse.

Let us return the Republic to an even, liberty-oriented keel.  And let’s compensate those wrongfully convicted handsomely from the coffers of the prosecutors and judges who did not do their jobs, and if there was malice on the part of those prosecutors, judges, or the investigating cops that gave rise to the wrongful convictions, let them serve the same sentence illicitly imposed on innocent citizens.  For all wrongs, there needs to be a remedy commensurate with the gravity of the wrong.