April 9, 1997
Are Coloradoans up to the task of giving Timothy McVeigh a fair trial? Is a fair trial even possible, the media breathlessly asks, now that the whole world has heard reports that McVeigh confessed to his lawyers?
But if the reports are true, and McVeigh told his lawyer he bombed the Alfred P. Murrah Federal Building, wouldnt that be pretty good evidence that he did it? Would it be “unfair” for a juror to be influenced by the news?
It depends on what we mean by fair. If we mean that the person guilty of a crime is reliably identified and punished, perhaps it would be perfectly fair. But if we mean that the rules society has established in order to decide these things are scrupulously followed in deciding who is guilty, then, no it would not be fair.
The tension between those positions runs throughout criminal law. Is our justice system more concerned with the search for the truth, or more for achieving a procedurally perfect game? Those alternatives, of course, are caricatures. Reality lies somewhere in between. But does the system need tweaking in one direction or the other?
A premise, sure to please some, and bother others, including a respected colleague or two at the Independence Institute: Despite some cutbacks by the Supreme Court, the focus on procedural perfection still weighs too heavily in the justice system. The systems guiding stars should be: Is the evidence accurate, and was it obtained without infringing on liberties that any citizen reasonably claims?
This is not an attack on the Fourth Amendment. If you and I would object to being stopped or searched without probable cause, it should not happen to any one else either. (Though we might want to consider alternatives to the exclusionary rule). Rather, it is a comment on the workings of the trial and appeal system. They have become rule-bound civic sacraments, administered by self-assured technocrats, often with little connection to truth-finding or even to intuitive fairness.
Most citizens are familiar with such things as the right to remain silent, to have counsel, and other parts of the Miranda warnings that police must give before they arrest a person. What they do not see is the much more pervasive gauntlet of traps and pitfalls that judges, lawyers, and juries must negotiate to avoid having a conviction overturned.
I fought the appeal of such a case while serving as special counsel to attorney general Gale Norton. (The attorney generals office handles the criminal appeals after local district attorneys offices obtain convictions). A man convicted of escape from prison, assault, attempted murder, and being a habitual offender, appealed his conviction for those offenses on the ground that the judge had not advised him on the record, that he had an absolute right to testify, whether his lawyer advised it or not. The mans record was a mile long. He decided, with his attorneys good advice, not to get in front of a jury and subject himself to blistering cross-examination. Further, he had received the very advisement from other judges in his earlier convictions that he complained about not receiving in this case.
But the appeals court threw his conviction out and the State Supreme Court refused to hear the States appeal of that decision. Procedural check marks won that day.
A famous case from the 1940s further illustrates. A slightly retarded murder defendant was being transported from court to the jail after a day of trial. The body had not been found. One of the officers said to the other, loudly enough for the defendant to hear: “It sure is a sad thing we cant even give her a proper burial. Imagine her out there all cold and alone.” The defendant began to cry and led the cops to the body. The courts threw out the evidence because the cops had “interrogated” the defendant without counsel.
Well. Did they torture him? Was the evidence unreliable? What exactly is the moral wrong in tricking someone into confessing a crime he or she committed?
Of course, police and prosecutors might try to trick defendants into little confessions, so the dots can be connected to point at the defendant. And that is where defense lawyers come in to counter, check, and undermine. But, the proposal from this quarter is that the rules of that contest, in their present form, unnecessarily hamper law enforcement.
If we can get good evidence without twisting any thumbs, lets use it.
Shawn Mitchell is a Senior Fellow of the Independence Institute a free-market think-tank located in Golden, Colorado.
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