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

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March 8, 2011

The Scales of Justice Need Rebalancing

by Stephen Littau

In support of our fundraising efforts for The Innocence Project, I have decided to dedicate at least one post per week over the next four weeks to the cause of criminal justice reform – many of which are the very reforms The Innocence Project are working to bring about. As of this writing, I am pleased to announce that in this very first day of fundraising, you readers have already donated $285 – 57% of our $500 goal! Thanks to everyone who has donated so far or plans to donate. Remember: your donations are 100% tax deductible.

The post below is one I originally posted back in November of 2007 and my first post of any substance here at The Liberty Papers. I’m also very honored to say that this post was chosen by my peers (who I have such a great deal of respect for as thinkers, writers, and individuals) as #5 on the list of the “Top 10 Liberty Papers Posts of the last 5 Years” marking The Liberty Papers 5 year blogiversary. At the time I wrote this post, I had never even heard of The Innocence Project nor its aims to make one of the very reforms suggested in this post: compensation for the wrongfully convicted. The Duke Lacrosse case was also one of the hot issues when I wrote the post (and therefore may seem somewhat dated).

As ‘unbalanced’ as I thought the scales of justice were back then, I now know its much worse than I realized even back then. The Innocence Project is working hard to correct this imbalance but they cannot do it alone. Be part of the solution and help us reach our goal and if you feel so motivated, you can even set up your own page to help The Innocence Project reach their $20,000 goal by April 7, 2011.

Disclaimer: The views expressed here at The Liberty Papers either by the post authors or views found in the comments section do not necessarily reflect the views of The Innocence Project nor its affiliates.

    The Scales of Justice Need Rebalancing


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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4 Comments

  1. Wow, I followed the Duke scandal nearly from the beginning. I did not see your post at the time, but would like to say now, that your prescience is noteworthy. I never believed that the Lacrosse Players were guilty.

    Best Wishes

    Dave

    Comment by Dave Jeanes — March 9, 2011 @ 9:39 am
  2. OJ Simpson was justice? Are you kidding me? While I believe injustice exists, can you look at injustice in the form of rapists who walk the streets because the criminal “justice” system penalizes the victims? 5% of rapes are actually prosecuted. Talk about balancing justice there please.
    Can you name any other crime where the victim is called the “accuser?”
    Ok, so Duke Lacrosse…innocent of rape. But are you telling me, in this age of victim blaming, that a pack of drunken lacrosse players were sitting there like polite boys? What about “not getting yourselves into the situation?” Think they were violating any rules or codes of conduct? I know many victims have heard the same thing – she was drunk, so she bears responsibility…how about the Duke lacrosse players? None there? Boys will be boys.
    How about the 4 Oklahoma State football players and the police officer who admitted to destroying a rape kit after he busted into the rape exam with a waiver of prosecution?
    How about the two boys convicted of sexual assault in Pennsylvania who continue to play football for their high school while the victim takes courses online and the judge issues the victim a gag order?
    How about Ben Roethlisberger?
    How about this? Let’s give the victims the same ability to hire a high powered attorney instead of a political appointee or government employee as his/her prosecutor? Then will the scales of justice be balanced?

    Comment by Katherine Redmond — March 9, 2011 @ 10:05 pm
  3. @ Katherine:

    “OJ Simpson was justice? Are you kidding me?”

    I don’t think I meant justice in quite the way you seem to be taking it. I could have been more clear. The reason I bring up O.J. here is because he is one of the few people who could afford a “dream team” which most individuals could not. For the record, I think O.J. is a murder but the prosecutors failed to convince a jury of his peers of his guilt. Had he been neither rich nor famous, I seriously doubt he would have been found not guilty. People are convicted every day in this country with far less evidence.

    While I believe injustice exists, can you look at injustice in the form of rapists who walk the streets because the criminal “justice” system penalizes the victims?

    I think we can agree that the system isn’t serving victims and accused well. What do you mean by the system “penalizes” victims?

    Can you name any other crime where the victim is called the “accuser?”

    First of all, before you can call someone who is alleging a wrong a “victim” you have to prove s/he actually is a victim (you know, innocent until proven guilty). Secondly, what’s wrong with the term “accuser”? Is this not an accurate term? If I accuse you of burning down my house, I would be an accuser.

    Ok, so Duke Lacrosse…innocent of rape. But are you telling me, in this age of victim blaming, that a pack of drunken lacrosse players were sitting there like polite boys? What about “not getting yourselves into the situation?” Think they were violating any rules or codes of conduct? I know many victims have heard the same thing – she was drunk, so she bears responsibility…how about the Duke lacrosse players? None there? Boys will be boys.

    Whether or not these players are choir boys isn’t the point. The point is, Crystal Mangum falsely accused these boys of committing a crime they did not commit. Crystal Mangum is not the victim here; the lacrosse players are. Incidentally, I browsed over your website. Why is there no mention of this case anywhere? I think you should be more angry at Crystal Mangum than these players. How much damage did she do to your cause? Personally, I think you should make an example of her. I think she should have been charged and if convicted, given the same penalties that these players would have received had they been convicted. Maybe this is a cause that we can work on together.

    How about the 4 Oklahoma State football players and the police officer who admitted to destroying a rape kit after he busted into the rape exam with a waiver of prosecution?

    I’m not familiar with the case but if that is what in fact happened, they should be punished to the full extent of the law.

    How about the two boys convicted of sexual assault in Pennsylvania who continue to play football for their high school while the victim takes courses online and the judge issues the victim a gag order?

    Not familiar with that one either. Enlighten me or provide a link.

    “How about Ben Roethlisberger?”

    I haven’t followed that case but to be very honest, I’m skeptical that he raped this woman. I read the article linked to your site, all I saw there was that he was accused of rape. I didn’t see any ‘proof’ that he did. How do we know this isn’t another Crystal Mangum trying to take advantage of a rich and famous quarterback? Going back to your statement that 5% of rapes are prosecuted – I think the reason for that is that it’s a very difficult crime to prove. Even if a rape occurs, the victim has the burden of proof that she was raped rather than the rapist proving he didn’t do it. More times than not, it’s he said/she said. We can’t assume that women don’t lie about rape.

    How about this? Let’s give the victims the same ability to hire a high powered attorney instead of a political appointee or government employee as his/her prosecutor? Then will the scales of justice be balanced?

    How about for every dollar the prosecution spends to convict someone, the accused gets a dollar to defend himself or herself?

    Comment by Stephen Littau — March 10, 2011 @ 12:47 pm
  4. “Innocent until proven guilty” is just a saying it seems, in the modern criminal justice system. In Florida, for example, you have an arrest record even if all charges against you are dropped, dismissed, never filed etc. Then, when a background check is run, it just shows what you were arrested for, and not anything else. Doesn’t seem fair to me…

    Comment by Karen, a Florida expungement attorney — March 13, 2011 @ 10:51 am

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