Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

January 24, 2007

The Scales of Justice Need Rebalancing

by Stephen Littau

In civics class, we are taught a few lessons about the American criminal justice system: the accused is innocent until proven guilty in a court of law, has the right to a court-appointed attorney if the accused wishes not to pay for his or her own, has a right to a trial by a jury of his or her peers, and jurors can only convict the accused if there is a lack of reasonable doubt in their minds. We are told that the accused is guaranteed a fair and speedy trial. We are told the burden of proof falls on the state; the accused only has to provide reasonable doubt (meaning the accused ‘probably’ did not commit the crime). We are to believe that an individual who is innocent would rarely (if ever) be wrongfully convicted because our criminal justice system is about finding the truth and rendering justice.

What the civics classes usually fail to mention is that regardless of the fact that jurors are supposed to consider the accused innocent until proven guilty, it is human nature to assume the worst of someone who is accused of committing a heinous crime. Jurors come with their own biases and world views and may find it difficult to suppress their inclinations and deal with the facts of the case. The civics lesson also usually fails to point out that if the accused chooses to go with a court-appointed lawyer, he or she will not be as likely to have an as aggressive and competent advocate as the state will. If the accused makes the wise decision to pay for his or her own defense, he or she can expect to spend his or her entire life’s savings (and perhaps the life’s savings of other friends and family members) just to have competent representation. Even if the accused has the means to pay for such a competent lawyer, there are no guarantees that he or she will be found not guilty regardless of the evidence or whether or not the accused committed the crime. And if the jury finds the defendant not guilty, then what? Sure, he or she is technically cleared of the crime but he or she still has to pay all the legal fees for his or her lawyer and the fact that he or she was ever charged will remain on his or her criminal record.

The state, on the other hand, has virtually unlimited access to technology, witnesses, forensic, medical, psychological, and other expert witnesses and a virtually unlimited budget to pay for other resources necessary to prove to a jury the accused is guilty. The state also has its own lawyers; prosecutors from the District Attorney’s office. To some, DAs have a little more clout than a criminal defense lawyer (court appointed or not). After all, the DA’s job is to ‘put the bad guys behind bars’ while the criminal defense attorney ‘gets the bad guys off the hook’ by finding some sort of legal loophole.

In many parts of the country, the DA is elected to office. What do voters want in a good DA? The answer is usually someone who pledges s/he will be ‘tough on crime’. A DA who is running for another term in office will want to have a solid conviction record; otherwise his or her opponent will attack him or her for being ‘soft’ on crime. The DA’s position is now compromised to remain in office. No longer is it his or her job to necessarily pursue ‘justice’ but to secure a conviction—regardless of whether or not they convict a guilty person.

Now enter the media. If the case becomes a compelling enough story, the media becomes a factor. The media is something of a wild card because the media can help or hurt the accused based on whatever the media wants the storyline to be. Now the job of finding an impartial jury has become infinitely more difficult. Ideally, prospective jurors should know nothing about the case other than what has been presented them by the judge. If this proves impossible, some jurors may already have an opinion based on what they have seen or read in the news.

After considering all these factors that the civics class likely did not teach us, can anyone truthfully say the process is fair? I conclude that the process is not fair, neither for the accused nor for the victims. The scales of justice need to be rebalanced.

Certainly, there is no perfect system nor will there ever be but our system can be improved. One way the system can be improved is by correcting the imbalance between the prosecution and the defense. If the DA has access to all the experts, forensics, technology, with a virtually limitless budget, so should the defense regardless of if the defense is court-appointed or not. If the government wants to continue to tell us that the goal of the criminal justice system is justice, then the accused should have the ability to have a competent lawyer of comparable competence of the prosecutor regardless of the defendant’s ability to pay. In addition to this, every time the state discovers it has wrongfully convicted an individual, the state should be required to pay that individual for every year spent in prison (something on the order of $1 million a year), reimburse his or her lost wages, and expunge both the conviction and the original charges. Putting an innocent person in prison should be very expensive for the state.

I realize that some of my fellow contributors as well as others who read this might see this as a form of welfare. To you I want you to consider the following: the Sixth Amendment of the Constitution guarantees everyone the right to a fair trial complete with legal council provided by the government if the defendant wishes not or cannot provide his or her own lawyer. I cannot imagine the founders intended a system that would allow the government to overwhelm an accused citizen with money, power, intimidation, and influence while the accused is forced to either spend his or her life’s savings or risk being represented by inferior council. Unlike most welfare programs that we are opposed to, when a person is put on trial, his or her very liberty, and life in some cases, is at stake (Note, I would not approve of government funded council for civil matters. Civil matters should be handled with a ‘loser pays’ approach). If it is truly one of government’s few legitimate functions to aid citizens in protecting their life, liberty, and property from those who would take these basic freedoms away, this seems to fall under that umbrella.

The so-called Duke Rape Case has many of these unfortunate elements of our criminal justice system. The MSM had largely made up its mind that the Duke lacrosse players David Evans, Collin Finnerty, and Reade Seligmann had raped and/or sexually assaulted a stripper by the name of Crystal Gail Magnum (the name has largely been not mentioned in the MSM). Without any trial or any kind of finding of facts, Duke students and faculty protested in favor of Magnum’s allegations holding up signs and shouting about how these boys should be neutered. The president of Duke University also reacted by canceling the remainder of the team’s games.

By March 2006, the Duke case was a big story with the following narrative: rich white lacrosse boys brutally sexually assault poor, black stripper at a drunken party. The MSM ran with this narrative without spending much time looking into the accuser’s background or the possibility that the accuser was lying. Michael Nifong, the DA who was to prosecute the case faced an upcoming election. Nifong saw this as an opportunity to prove to the voters that these privileged athletes would not get away with what they had allegedly done. Convicting Evans, Finnerty, and Seligmann was so important to Nifong that he with held crucial DNA evidence from the defense and allowed the accuser to identify her attackers in a photo lineup which only included Duke lacrosse players. Nifong even failed to personally interview the accuser!

With the MSM and any overly zealous DA, the odds of receiving a fair trial were stacked against the accused players. To receive competent council which could hold up against the media and the state, the families of the players hired defense attorneys which cost $80,000 per month. This case is already almost into its 11th month. Though Nifong is facing the possibility of disbarment and possible criminal charges, the rape charges against the players have been dropped, and that the accuser’s story continues to change, the players still face other charges. Thanks in-part to talk radio, bloggers, and others in the alternative media asking questions the MSM failed to ask, everything seems to be swinging in the defendants’ favor. Evans, Finnerty, and Seligmann may receive justice after all but no one ever said justice was free.

The Duke case is but one high-profile example of a more widespread problem. Most individuals who are accused of a crime cannot afford to shell our $80 grand a month for quality representation. In Cory Maye’s case (for details of his story click here, here, here and here), he nor his family had the means to pay for quality representation which may be the reason he is spending his life behind bars now. Justice should not be reserved only for the O.J. Simpsons and Michael Jacksons of the world and denied to the indigent. In a just society, the scales of justice should not be weighed based on affluence, influence, or the lack thereof but should be blind and balanced…just as our civics teachers promised us.

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  • http://hathor-sekhmet.blogspot.com VRB

    I found the bloggers to be just as bad as MSN, they just happened to wind up on the right side. They did all their best to vilify the alleged victim before all the facts were in. They looked for every snippet of so called evidence to prove their point. Most seem to be saying if you are a whore you can’t possibly be raped and rapist aren’t smart enough to drug or use a condom. Of course all their arguments were so high minded how dare anyone questioned their motives. I think that bloggers are beginning to think the power they have, gives them truth. They just got lucky, so I wouldn’t pat them on the back. Bloggers are not any more pure than the rest of society.

  • http://unrepentantindividual.com/ Brad Warbiany

    Excellent post, Stephen.

    VRB,

    You’re entirely correct. We bloggers don’t have the vaunted “three layers of fact checking” that MSM outlets claim. I never went to journalism school to do what I do. It’s quite obvious that we’ll be wrong, and sometimes be wrong pretty badly. But the point that Stephen made is that the MSM basically took the story and ran with it, and didn’t ask questions. It was only when the alternative media asked questions (to be fair, often with their own agenda) that the truth started to come out.

  • http://www.thelibertypapers.org Adam Selene

    But, let’s be honest about this. The supposed upside to the formal media, legacy media if you prefer, is that it has multiple editorial and fact checking layers. Now, each individual blogger does not, clearly, have that. What we have, instead, is tens of thousands of us fact checking each other. And when we are wrong, we get called on the carpet publicly by our blogging brethren, by our readers and by the media. And we see corrections from bloggers.

    This blog, which is more opinion than fact, has corrected itself many times when shown to be incorrect or shown that our opinions are based on incorrect assumptions and facts.

    What you see with blogging is an ability to rapidly apply a massive amount of editorial and fact checking controls that a newspaper cannot hope to apply in the same time frame.

  • http://hathor-sekhmet.blogspot.com VRB

    Adam,
    Maybe I don’t read enough blogs, but I have never seen a blogger admit to being wrong; all I have seen is them change the subject. Very interesting how Glenn Reynolds danced around the use of the name of his media domain.
    If bloggers are using the same sources, it doesn’t matter how many are fact checking. I don’t think the typical blogger even knows how or has access to a wide variety of sources.

  • http://unrepentantindividual.com/ Brad Warbiany

    VRB,

    Kevin admitted an error 12 days ago right here on this blog. He used an unreliable source (actually, which was a newspaper) without checking the actual original material (the bill, which is searchable online).

    But I guess that’s what we get for trusting newspaper sources.

  • Harry

    It would be much cheaper, and much better for those who are innocent, to make sure every defendant has a good defense attorney with access to investigative resources rather than compensate those who are wrongly convicted.

  • http://www.thelibertypapers.org Adam Selene

    Harry, even in the event that you had those things, there are still going to be some people wrongly convicted. Should we just tell them tough luck?

    VRB, I’ve seen plenty of bloggers admit mistakes, make corrections, etc. More importantly, if we look at some significant events, like Kerry’s claim to have been in Cambodia at Christmas and Rathergate, the blogger media was able to rapidly fact check the media and each other. Something the traditional media was either unwilling, or unable, to do.

  • http://hathor-sekhmet.blogspot.com VRB

    Brad,
    I guess I fall under my own description of a typical blogger.

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