On paper, our justice system is a pretty damn good one:
- Defendants are presumed to be innocent, not guilty.
- There must be a fair and speedy trial.
- In order to be found guilty by a unanimous verdict must be reached by 12 unbiased jurors. These jurors are made up of our peers, our fellows.
- Evidence must be presented. Evidence that has been legally obtained and is not designed to be more inflammatory than relevant.
- The judge, who decides the best way to conduct the trial, must be an unbiased, rational person who seeks justice.
This is an amazing system obviously. How could any of this be less than fair? Let me count the ways.
1. A person is not presumed innocent until proven guilty.
Here’s a quick example. Why do we have alibis? Why do I need to prove I was somewhere else if the prosecution actually needs to prove I was at the crime scene? You can’t prove something that’s not true. If they present proof I was on the scene then my alibi would be unnecessary and irrelevant. But they don’t need to prove anything.
They need only to accuse. Take some time, think about this. Ask around. Isn’t it true that people don’t get arrested if they didn’t do something wrong? Isn’t it true that the person sitting at the defense table must be guilty of something? Why else would they be there?!
It may seem unimportant right now to you, but someday it could become crucial to you or a loved one.
2. There are no more fair and speedy trials.
If there was ever one to begin with, they are gone now. Two things to address here, fair and speedy. Both subjective descriptions. The law has clearly defined what “fair” means and what “speedy” means. The impossibility of the first explains the near impossibility of the second.
A “fair trial” means, among many other things, that the defendant gets a lawyer even if they cannot afford one. Now comes the public defender’s office. This group of lawyers is very much like the last Defenders of the Alamo. They are outnumbered, outgunned, underfunded, and understaffed. They’re also, in my personal experience, have some of the finest attorneys and people around.
Well, you may ask, if the state assigns one of these very fine attorneys, how is that unfair? Well, if the Alamo metaphor wasn’t enough, perhaps this will help. It is a silly, but accurate illustration. The martial artist, Bruce Lee was undoubtedly a first-rate fighter. But how would he do against a battalion of average soldiers, surrounding him with unlimited ammunition and equipment? How could he ever hope to win that fight? No matter how skilled he was.
Be public defenders simply do not have the resources to hire the various experts or gain the services they need. They must petition the court for funds. Sometimes the court will grant the funds it sometimes the court will not. If not, then the defense attorney must try to find an alternate way to defend their client. It is pretty messed up. The prosecution has virtually Limitless resources. Literally, it is no contest.
This is why, generally, the rich we’ll go free and the poor will go to prison. It is not discrimination, as such, it is just a matter of who can hire the better experts. Until and unless the playing field is leveled there can be no real equity.
Of course, money is not the only resource in which the public defender’s office is in short supply. Each public defender has a caseload that is overwhelming. 50 Active cases at the same time would be a safe bet. In higher population centers that number could be higher.
To give some context, a classroom with 50 kids would be outrageously overcrowded. As important as education is, keeping innocent people out of execution chambers or from the horrors of prison is, I think, more important. How can 1 lawyer ever hope to be able to actually help at least 50 different clients at the same time?
It is the Alamo. Outnumbered, outgunned, and running out of time. Keep in mind, a speedy trial is supposed to be done within 70 days of the arrangement. How is this supposed to be possible for one lawyer to have 50 trials in 70 days? Obviously, this timeframe is nearly impossible. Unfortunately, there are hundreds of thousands of men and women locked in cages for over a year waiting for their trials. Many of these people are innocent. The horrors and abuses of prison do not discriminate. It leaves its mark on them all. This is, or should be, unacceptable. The lack of caring brings me to my third point.
3. There is no such thing as an unbiased jury anymore.
Not with all the social media, we have today. Between TV, news channels, newspapers, etc… Any given person is bombarded with sensationalized stories about crime, criminals, and the legal system. Everyone has seen Law & Order, NCIS, SVU, or Chicago PD. They shape our view of the system and its participants. Nancy Grace, Howie Carr, and John Walsh have used their voices to so hatefully convince you that the accused are monsters that their guilt is never questioned.
Right or wrong, we all, individually, decided if Bill Cosby or Jeff Epstein were guilty long before their trials. OJ Simpson was found not guilty at trial. People still say he did it. Hunter Biden and Donald Trump are both fine examples of today’s trial by media. No one sitting a jury, for any of these people would, could be, unbiased. Evidence? Facts? These are unimportant, irrelevant.
I’m not saying that these people are either innocent or guilty. All I’m saying is that, how can I know? Because the TV says so? That’s crazy and immoral. The fact that such an emotional reaction to these words is felt by so many readers is proof of what I’m saying.
We have a powerful cultural compulsion to sympathize with the victim and to believe the accusation. It’s emotionally driven and it has no checks by logic or reason. The “me too” movement with a clear example of this.
Let me be clear, no one, under any circumstances should ever be victimized. It is not okay. It is evil to hurt those who cannot protect themselves. This extends to the accused as well. We should not let our emotions control our actions. Neither lust nor greed or anger and over knee-jerk reaction to lash out at the accused.
We have a justice system in our country. It’s a good one if we invest ourselves in it. We have a civic duty to observe that system. To care about that system. Someday you may find yourself caught up in that system and on that day you will wish that your peers were as unbiased and invested in justice as our forefathers had planned for.
The jury of today is caught up in this no less than any other individual. No magic spell suddenly causes a person to become an objective, rational, trier of fact. The idea that one must be certain of a defendant’s guilt to find him guilty is gone today. Mr. Jefferson’s belief that it would be better to let 10 guilty men go free than wrongly convicted one innocent is a thing of the distant past. Now we convict based on fear! The “what if he’s guilty” idea. The “just-in-case” conviction.
This is particularly true against those who were accused of a sexual offense. It is like the witch trials. No one wants to be seen associated with, or sympathetic of a witch, I mean, a sex offender. If someone disbelieved an accuser then that person falls into suspicion. Only a witch would sympathize with a witch, the guilt is never questioned. It is presumed.
Yeah, we look to see who sympathizes with the guilty. It’s unfortunate, but also a statistical reality. Over half of the incarcerated men and women in prison are convicted sex offenders. In New Hampshire, it is a lot more than half. It seems unlikely that in the midst of the opioid epidemic, gun violence epidemic, and all the other crimes that more than half of the criminals are sex offenders. Think about it.
But let’s assume you get an unbiased jury to listen impartially to the evidence, we come to the next major problem in our legal system.
4. The standards for what is admissible evidence are so low, you could trip over them.
Let me offer one of my trademark anecdotes to illustrate my point. This is a true story, though the specific details have been changed to protect… well you know…
One morning a man walks into a Hospital ER claiming he just been shot. The hospital calls the police and begins to treat the victim. Interestingly, they find no gunshot wound, nor any wound that could have been caused by a gun. They take a urine sample and check his blood work and find the victim is extremely intoxicated. Despite all this, they believe the victim’s story.
The police come and interview the victim. The victim sits in a wheelchair because he is literally too drunk to walk. The victim slurs out in the narrative of how the defendant shot him as they sat and drank together, last night, in the defendant’s home. The police go and arrest the defendant. He has no gun. They searched his house and again find no gun. In fact, they don’t find anything at all to support the idea that he either shot or shot at the victim. No guns, no bullets, no bullet casings, no powder burns, no blood, no holes in the floor, walls, or ceiling. Nothing.
Despite this, the prosecutor puts two and two together and decides to prosecute the defendant with the shooting of John Doe. During the pretrial hearings, defense counsel asked the court to recognize that the only witness to the alleged shooting, the victim, was at the time of the incident blackout drunk. As there was no other evidence to indicate that anything had happened, this should put an end to the prosecution.
The court denied the petition. The court also denied any funds for the defense to hire an expert witness, a toxicologist. The defense wanted the expert to explain what having a blood alcohol content of .4 would you to memory and the ability to even observe events. But the jury never found out.
At trial, the prosecutor explained to the jury, using their expert witnesses, that the lack of any physical evidence was due to the defendant’s cunning. The prosecutor implored the jury to believe the victim. Why would he lie?
The defendant was found guilty and given 28 years. On appeal, the Supreme Court affirmed the conviction in a form letter opinion asserting that the overwhelming evidence supported the conviction. And so an innocent man goes to prison for nearly 30 years. Sent there on nothing more than an accusation by a black-out drunkard.
That, my friends, is a 100% true story. I have changed only the crime from one type to another. The illustration of what qualifies as proof, as admissible evidence, is made clear here. The story demonstrates every point I have made as well as my last one.
5. Judges are people too.
Fallible, biased, prone to emotional reactions, with character flaws and weaknesses. This is not a condemnation, simply an acknowledgment of the facts. The judge in the above case sympathized with the victim. He was not going to allow the defense to publicly shame him just because he was drunk. Never mind that the law was clear on what qualifies a person as a witness and that being conscious and able to observe and recall events are two of the most critical elements. For whatever reason, this judge would allow his own agenda to decide, not the law, and to guess what the agenda was or why the judge did such, would be conjecture and unhelpful.
What is not conjecture is that judges have done this kind of thing before. In fact, it happens far more often than should be permissible. But, as the various courts have ruled, and admitted one cannot know what another person is thinking. One cannot assign bias or prejudice easily. Even still, there are times when it is obvious.
Like in the case that came before the United States Supreme Court in 2016, about a judge who failed to take himself (recuse) off of a case. In Williams v. Pennsylvania we find the story of how a prosecutor sought the death penalty in a murder case against an 18-year-old man. After the trial, many years after, evidence came to light providing mitigating circumstances, not of innocence, but enough to stop the execution. After the case worked itself through the higher state courts, it eventually made its way onto the desk of the former D.A., now Supreme Court judge.
He ordered the execution to proceed. In his order he wrote, the Defender’s Office were turning post-conviction proceedings “into a circus where [T hey] are the ringmasters, with their parrots and puppets as a sideshow.” The United States Supreme Court saw that for what it was and stopped the madness. They did that time.
Unfortunately, they have at other times allowed innocent men to be put to death. They are sleeping well, the judges I mean, because all the boxes of the “fair trial” checklist have been checked off I will quote “… it could not be said that the Texas refusal to entertain the accused’s newly discovered evidence transgressed a principle of fundamental fairness… even assuming that in a capital case a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of defendant unconstitutional.” Herrera v. Collins Let me translate.
“It doesn’t matter if you’re actually innocent and if putting you to death could be illegal. You had your chance to prove your innocence. You failed. Now it’s time to die or go to prison and be marked for life!”
That, my friends, is insane! This was the US Supreme Court, our country’s highest court! not some backwater Klan run kangaroo court. The Supreme Court!
So, my point? Judges are people too. Often blind to their own bias. They have personal agendas. How could they not? They are people too. The problem is, they control how things in our judicial system are done. If they are willing to let innocent people die, then how are any of us safe? I’m talking about innocent people! People who do not have the money to adequately defend themselves. People who are fighting an uphill battle against an overwhelming adversary. A hopeless battle. People who trust and depend on the ability of Judges, prosecutors, police, and jurors to put away their own personal biases and prejudices. To give them a fair chance.
We don’t have a justice system. We have an incarceration process. As long as those vague boxes get checked off and there are no repercussions for judges or prosecutors who deliberately and maliciously behave poorly, then it is over for all of us. That’s right judges and prosecutors are immune to criminal or civil prosecution for misconduct. Did you know that? Defense attorneys aren’t, that’s for sure. When does it all stop? Where does it all stop? Will it ever stop? Who even cares? Do you?