The Baby & The Bathwater

October 31, 2010
/ Author: Rick

A few days ago, I wrote about not just our criminal justice system, but our entire country having lost its moorings to our Constitution. I talked about an “instrumentalist” view of the Law, which has transformed our system from one which protected our freedom and our rights into one which exists largely to control (primarily) the (poor) population.

Recently, Jeff Gamso of Gamso – For the Defense, wrote about a prosecutor who exemplifies all that is wrong with the attitude of those whose job it is to “do justice.” By his own admission, the prosecutor abhors justice and works to undermine the United States Constitution.

And he thinks that’s what Public Defenders should do, too.

That Martin Beeson is an asshole unfit for the office he currently occupies should go without saying.  That he won’t shut up because he probably just dramatically increased his chances for a judicial appointment (and probably knows that) is more evidence that what this Nation needs is Revolution.

It is time that the People realized that giving in to this mindset leads us nowhere but back to serfdom, servitude and the days when the knights with the weapons did with us whatever they wanted.

But Revolution will not happen.  The People do not care about this mindset, because despite growing evidence to the contrary, they believe only “others” will become serfs.

To be sure, Beeson’s comments have enraged a number of individuals.  Those offended are primarily criminal defense attorneys, but they are not alone.  Friday afternoon, I told a prosecutor in Fresno who I know as particularly conservative and strident in the performance of his duties about Beeson’s statements.  His response?  “Yes, right,” he said with a voice so clearly dripping in sarcasm that no one could possibly misunderstand.  “And after the Sixth Amendment, we just go after the rest of the Constitution.”

For those who missed this point: he (the prosecutor to whom I spoke; not Beeson) was kidding.

Some of my most difficult court fights have been against that prosecutor.  I have honestly wondered at times whether he had a soul.  Yet even he recognized the wrongness of Beeson’s comments.

Jeff Gamso’s blog title alludes to a statement by Benjamin Franklin.  At the close of the Constitutional Convention — for those who were never taught, this is the meeting which resulted in the creation of the United States of America — Benjamin Franklin, who at 81 years old was already an elder statesman when he attended the Convention, was asked by a woman what type of government the Constitution was bringing into existence.  Franklin replied, “A republic, if you can keep it.”

The United States of America adopted an adversarial system of justice.  I can’t say I always believe it works — for quite different reasons than Mr. Beeson apparently adopts — but our Founders believed it worked better than other systems they might have adopted and  I can’t say that I know of a system which works better.

The adversarial system resembles, to a certain degree, the scientific method which was in vogue from the period shortly before the American Revolution until George W. Bush became King President of the United States.  Briefly stated, the idea is that someone — in the case of criminal law, the government — puts forward a hypothesis: this crime was committed by this person.  The defense says, “Prove it.”

We don’t perform experiments, of course, but we do put forward evidence.  If the evidence shows, beyond a reasonable doubt, that the prosecution’s theory stands up, the “defendant” — the person making the defense, either himself or through his “defense attorney” — is convicted.  The fact-finder (jury or, in bench trials, the judge) gives the thumbs-up to the prosecution, or thumbs-down to the defense.  Imagine it as you will.

The “beyond a reasonable doubt” part was always the rule because people who value freedom and free societies understood that it might be possible to make someone look like they might be guilty, even if they weren’t.  Because we value valued freedom and a free society, we don’t didn’t want just lock people up because we think they might have — or even probably have — committed a crime.  We think thought there should be some certainty for taking such drastic steps.

After all, everyone gets just one life.  They should be allowed to live it unhampered by the beliefs of others unless there is some pretty damn good certainty that they should forfeit that right.

Now — again, rightly, or wrongly — we believe that Justice can only be achieved when the prosecution tries to prove its case and the defense forces the prosecution to prove its case.  But the Founders understood, and just about any sane person not under the influence of overwrought emotion will understand, that it is actually impossible to capture all wrongdoers, no matter how draconian a system one builds.

It may be the case that the more the system helps the government with easy convictions, the more guilty people will go to jail or prison.  It’s also true that the more the system helps the government with easy convictions, the more innocent people will go to jail or prison.

Just ask about any non-white person throughout the United States, but particularly ask those who try to navigate the streets of larger cities such as New York where, “[f]or many kids, getting stopped by the police while walking home from school has become a normal afterschool activity.”

Hell, just ask Martin Beeson — if you can get him to give an honest response (which apparently you can’t). [1]2015 update: Apparently the link I had on the parenthetical statement has been removed. However, you can get a picture of what was going on by going to this page.

So it was that our Founders built a system — deliberately built a system — that is supposed to make it difficult for the government to do certain things.  Government agents aren’t supposed to get “easy” convictions.  Government agents such as the police are not supposed to be able to arbitrarily stop people in the street, without probable cause, and search them.  This is exactly — exactly — the type of governmental behavior that led to Americans shooting at the British, declaring Independence, and throwing off the rule of the King.

But our modern government — no longer “we, the People,” but contrary to Martin Beeson’s words, now the enemy of the People — has built up a standing army of police and other officers who, armed to the teeth and often traveling about in full military garb, remind us that the worst fears of our Founders have come true.

Forgive my digression.  I still mourn the loss of the values for which those who came before me fought and died.

At any rate, the last vestiges of the wisdom of our Founders, the adversarial system, is already hanging by a thread.  As almost every article about Beeson’s comments points out, his department, whose primary aim is to strip its targets of any rights under the Constitution, receives five times the amount of money that the true Public Defenders — those who aim to stop the stripping of rights and put the government to the test — receive.  This disparity exists in virtually every American county.

Yet that’s not enough.

Beeson and his ilk would have them receive even less, perhaps would even wish to just shut them down. After all, Beeson believes, he already protects the public.  Why do we need Public Defenders?

The answer is simple:  The system that made this country the land of the free and the home of the brave does not work without them.  Justice — the kind of Justice that means innocent people do not have their rights trampled, do not go to jail, or prison — that kind of Justice requires trained adversaries who can stand up to the government.

Beeson has things exactly backwards because like most modern Americans he never really understood the United States Constitution.

Power tends to corrupt.  Absolute power corrupts absolutely. As James Madison noted,

A standing military force, with an overgrown Executive will not long be safe companions to liberty.

The police are the standing military force; prosecutors are part of the Executive Branch of government.  Beeson’s mouth, if not the rest of his head and his office, is overgrown.  Beeson is no longer a safe companion to liberty.

Because, in his opinion, sometimes things don’t work out the way he wants, because he cannot do his job, cannot prove his cases, he would have us — you, me, all of us — believe that the problem is with those who defend our rights — your rights, my rights, the rights of all of us against an overgrown Executive.

Because sometimes guilty men go free, he would have us skew the system even more in his favor and deprive the accused — who he deems criminals before any juror ever has a chance to see the evidence — of the right to a defense.

Because it is true that many of those who are accused will be found guilty — the government is not always wrong — but yet there are innocents swimming in the same water as those who are not.  Innocent as babies.

Beeson says, “I am your Protector.  Throw out the baby with the bathwater.”


12015 update: Apparently the link I had on the parenthetical statement has been removed. However, you can get a picture of what was going on by going to this page.

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  1. I can’t remember where I heard this, but someone once observed that our civilization is at that awkward stage where it’s too late to fix things within the system, but too soon to start shooting the bastards.

    I’m still hoping for a fix within the system. The problem with a revolution is that the new boss is often worse than the old boss. These things have not always turned out as well as the American Revolution. Neither Lenin nor Castro brought the kinds of change the people were hoping for, and many of the Iranians who fought the Shah weren’t expecting he’d be replaced by Supreme Leader Khomeini.

    1. Regarding the awkward stage in which we appear to be, I have thought that myself. The problem is that I don’t know if there ever is a stage where it really does seem to be “just the right time” to start shooting the bastards. I’m not really by nature a violent person and I very much dislike guns (don’t own one, although I keep thinking that needs to change).

      Like you, I keep hoping for a fix within the system. It’s why I write. It’s why I vote. However, the longer I work within the system, the more disheartened I become.

      On the one hand, I’m lucky. I’m a white male with some degree of education and I don’t actually have very significant needs. (If I did, I could not survive in this job: lawyers running 100% criminal-defense-only offices don’t usually make much money.) If I wanted to do so, I could simply switch to another practice area with less stress (no more worries about feeling responsible for people going to prison because I wasn’t good enough) and make more money (maybe technology law, for which I would be ideally-suited based on my prior career).

      On the other hand, to do that, I would essentially feel that I was abandoning my own ideals. My sense of commitment to the idea of a progressive (not necessarily “liberal”) society with a more libertarian model is strong enough that every time I consider abandoning what I do now…well, I just realize I’ll probably die from the stress before quitting.

      A fix within the system, however, just does not seem to be in the offing. My current hope is that the United States will break up in my lifetime, with different regions or states forming new independent governments, with some of them actually being sane and committed to the old (e.g., original USA) Constitution.

      It would be really nice if the state or region that does that is warm. I’m not a winter person.

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