The Tradeoff
Monday 15 July 2013 - Filed under Uncategorized
In reference to what I meant earlier when I wrote
The state had a job, and they didn’t meet their burden. That some people wish to to blame the one legal mechanism, the state having the burden of proving guilt beyond a reasonable doubt, that keeps even more people from being jailed (particular those in the black community who already have an massive over-representation in America’s overly vast prison system), is flabbergasting but not necessarily surprising.
Ken White, a nationally renown trial lawyer with vast experience as both a prosecutor and a criminal defense attorney, addresses this point very succinctly and with the authority of over 20 years experience practicing law.
Can due process produce a result that is, in some sense, unjust? Yes. People can kill and defraud and rape and abuse but leave insufficient evidence of their crimes to prove their guilt beyond a reasonable doubt. The fact that the victim suffered is unjust. The fact that the perpetrator was not punished is unjust. The fact that skin color drives outcomes is unjust. It is unjust that moral wrongs go unredressed: such as, perhaps, the moral wrong that Trayvon Martin would be alive if George Zimmerman didn’t think he had a right and duty to confront people of the wrong color in his neighborhood. But there’s a central question some people ignore about such injustice: compared to what?
People assail results like the acquittal of George Zimmerman. But critics don’t tell us what the alternative should be. Shall guilt or innocence be determined by society’s reaction to the vapid summaries of prosecutions on cable news? Clearly not. Should verdicts necessarily reflect social consensus of the time about the crime and the accused? Tell that to theScottsboro boys — theirs did. Should we make it easier to convict people of crimes in order to reduce injustice against the weak? How foolish. The weak already suffer because it is too easy to convict — because we love to pass criminal laws, but hate to pay for an adequate defense. Thanks to “law and order” and the War on Drugs and our puerile willingness to be terrified by politicians and the media, one-sixth of African-American men like Trayvon Martin have been in prison, trending towards one-third. The notion that we can improve their status in America by making it easier to convict people and by undermining the concept of a vigorous defense is criminally stupid. The assertion that an acquittal is wrong and unjust might, in some cases, be true, in the sense that some juries will vote their ignorance or racism or indifference. But the assertion that an acquittal is by its nature unjust because of how we feel about the case serves the state — the state that incarcerates 25% of the world’s prisoners.
I didn’t watch much of the Zimmerman trial. The parts I watched left me unimpressed with the quality of the prosecution’s case. I haven’t seen any people who are actual criminal trial practitioners (with the exceptions of ones whose job is to talk to Nancy Grace and her ilk) who thought the case was going well for the prosecution. So my reaction is rather like that of the other criminal defense lawyers I know, like Brian Tannebaum andGideon and Eric Mayer and Scott Greenfield. The verdict didn’t surprise me, because based on what I know as a trial lawyer (as opposed to an occasional consumer of CNN), the prosecution wasn’t proving its case beyond a reasonable doubt, given the law that applied (as opposed to the law people felt ought to apply). I don’t see a basis to conclude that a jury of six women of varying backgrounds voted out of racism, rather than voting because they took the government’s burden of proof seriously.
It’s tragic that Trayvon Martin was killed, and I believe that George Zimmerman bears moral responsibility for his death. The banners of racism that have unfurled in defense of Zimmerman repulse me. I would be damn worried about my kids if I lived in George Zimmer[m]an’s neighborhood. But ultimately I am more afraid of the state — and more afraid of a society that thinks case outcomes should depend upon collective social judgment — than I am of the George Zimmermans of the world. Critics might say that view reflects privilege, in that as an affluent white guy I am far less likely to be shot by someone like Zimmerman. Perhaps. But I am also vastly less likely to be jailed, or be the target of law enforcement abuse tolerated by social consensus. Weakening the rights of the accused — clamoring for the conviction of those we feel should be convicted — is a damnfool way to help the oppressed. (emphasis mine)
Having to find a defendant guilty beyond reasonable doubt is one of the very few legal mechanisms that continue to defend individuals, especially the weak and underrepresented in society, from the might of the state. Decrying that mechanism because it didn’t work out for you in a particular case is, as White properly notes, criminally stupid.
2013-07-15 » madlibertarianguy