It was an unusually hot night in early July and I was lying in bed trying to fall asleep when fireworks started booming, popping and cracking from a nearby park. My mind started wandering to the dawn of our nation. The sounds reminded me of the words from our national anthem: “And the rockets’ red glare, the bombs bursting in air, Gave proof thro’ the night that our flag was still there. O say, does that star-spangled banner yet wave, O’er the land of the free and the home of the brave?”.
Hmm, I thought, the concepts of freedom, liberty and equality have been cornerstone values throughout the history of our country. In the Declaration of Independence, Thomas Jefferson wrote: We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government.
Then, 87 years later, Abraham Lincoln in his famous Gettysburg Address wrote: that this nation, under God, shall have a new birth of freedom — and that government of the people, by the people, for the people, shall not perish from the earth. Even the Pledge of Allegiance, adopted by Congress in 1942 promises the values imbued by Jefferson: I pledge allegiance to the flag of the United States of America, and to the republic for which it stands, one nation under God, indivisible, with liberty and justice for all.
As I lay there, tossing and turning, my mind wandered from the words with liberty and justice for all. to the symbolism of Lady Justice. You know, the lady whose statue is in front of court houses: a beautiful woman with her head held high, without adornment or fancy clothes, she wears only a simple robe. Her eyes are covered by a blindfold. In one hand she holds a sword and in the other, “scales of justice”.
Her female visage is intentionally not masculine, warlike, aggressive or intimidating. Her simplicity is without pretense or grandiosity. She is not trying to impress nor will she be impressed by those who enter her halls. Her blindfold represents impartiality. She cares not if she is determining the fate of an aristocrat or a pauper. Instead, she listens only to the facts and interprets them with complete objectivity.
Her scales represent the preponderance of evidence in each case. Each defendant is presumed innocent until proven guilty by the prosecutor. As evidence and testimony mount, the scales move from 100% in favor of the defense to some percentage in favor of the prosecution, depending on the strength of his or her case. If the scale tips to the standard: “guilty beyond a reasonable doubt” then the prosecution wins and the defendant goes to jail.
The sword represents the power of the State. The decisions made by Lady Justice are backed by the force of law. This is an important concept because Lady Justice has at her disposal a vast army of local and State Police; the National Guard and all the powers of the United States Government.
The quotes from Jefferson and Lincoln sum up excellent definitions of democracy: “Governments are instituted among men, deriving their just powers from the consent of the governed” and “that government of the people, by the people, for the people, shall not perish from the earth.”
Even though there is still a strong spirit in this country for the concepts of freedom, liberty and justice, our federal government has become so massive… political and economic power has become so centralized… that it has taken on a life of its own. Distinct and separate from the citizens it is supposed to represent. It now fits Israeli historian J. L. Talmon’s term Totalitarian Democracy, referring to a system of government in which lawfully elected representatives are charged with maintaining the integrity of a nation , while its citizens, though granted the right to vote, have little or no participation in the decision-making process of the government. Yes, significant changes need to be made to our justice system. Above the entrance to the Supreme Court Building are etched the words: “EQUAL JUSTICE UNDER LAW”. But were these words ever followed in real life?
Lady Justice and our Legal System
If Lady Justice could see the state of affairs in the American judicial system, she would blush from embarrassment. Her simple, but functional attire has been replaced by ostentatious, intimidating court houses, which boast the power of the State, costing in aggregate, billions of tax payer dollars. Her blindfold has been replaced by justices and a judicial system that favors, to an extraordinary degree, the prosecution in criminal cases and the wealthy in all cases. Our laws are archaic, complex relics passed down from English common law, from the Constitution, from centuries of Federal Supreme Court decisions and from the historical decisions of 50 different State Supreme Courts, countless statutory Congressional actions, presidential orders, and the historical legislative actions of 50 separate States.
Tens of thousands of Local, State and Federal Judges commonly make decisions based on unclear direction from both legislatures and higher courts; a misinterpretation of the law or unbelievably, by completely ignoring the law. There is rarely a negative consequence for either intentional or unintentional errors by a judge, so why should he or she care? Sitting elected judges are rarely defeated; both judges and prosecutors have almost impenetrable immunity and it is extremely rare that either are disciplined for even intentional wrongdoing. Rather than being interpreters and servants of the law, they have become the law.
A too cushy relationship between local judges, prosecutors and police departments has been allowed to develop. Most municipal and county judges run for office after successful careers as prosecuting attorneys — often running their campaigns on the pledge of being “tough on crime”. Most law abiding citizens want low crime rates, so the pledge is a very popular mantra.
Even though the constitution, as interpreted by the Supreme Court, takes a dim view of the Machiavellian concept that “the end justifies the means”, questionable police and prosecutorial tactics are often overlooked by judges, who are in a rush to obtain a high number of convictions, expedite their case loads and get along with the legal and police fraternity to which they belong. Keep in mind that as former prosecutors their natural bias is to favor prosecutors over defense attorneys and assume that if a case is brought against the defendant, he must be guilty. Why, because the judge presumes that a prosecutor will only bring good cases to court. The main problem with this scenario is that judges are supposed to be referees not coaches or advocates for one side or the other, or as Lady Justice would demand “impartial arbiters of justice”.
Upon entering a courtroom, defendants are presumed guilty. Their attorneys (if retained) are treated with little regard, legitimate motions are often summarily denied. The testimony of police officers is sacrosanct, always considered accurate and truthful, even when in conflict with common sense or sometimes even the laws of physics. Its not uncommon for Prosecutors to use every tool available to prejudice potential juries, including the hiding or destruction of evidence which might hurt their case, or improperly coaching witnesses to give false or misleading testimony. Our adversarial system of justice encourages a “winning at all costs” attitude, even if it means cheating.
I am not suggesting that defense attorneys are “perfect angels”. They, when available, will use similar tactics to win their cases. The difference is that prosecutors, through the police, control all the evidence and we as taxpayers are paying their salaries.
In high profile cases they notify the press when the defendant is being transferred from the court house to a prison transport vehicle, commonly known as the “Perp. Walk”. The image of a hand cuffed defendant surrounded by police conveys a powerful presumption of guilt. The prosecution’s supporting evidence is leaked to the press before the trial, either covertly or overtly, but never evidence that may be problematic or damning to their case. These tactics are used intentionally to prejudice both the judge and a potential jury pool. The news media obsesses about these high profile cases for months and sometimes years. The public condemns the defendant with a guilty verdict before the trial even begins. Just look at O.J. Simpson, Casey Anthony or Dominique Strauss-Kahn. All were convicted by the public, but the prosecutor’s cases either lost in court or were dropped for insufficient evidence.
So far, I have made the assumption that a defendant has an attorney. In criminal cases if a defendant cannot afford an attorney the court will appoint one. The quality of representation, however, is often questionable. The defendant also has the right to defend himself. However, unless one simply wants to throw himself at the mercy of the court, it is not recommended. Court rules and procedures are inordinately complex, detailed and regulated. A Pro Se defendant also finds that in most cases, the research involved in mounting a proper defense is, as a practical matter, impossible. Even most attorneys are ill-prepared or ill-funded to really maximize case law to their clients benefit. Not to mention the costly and time consuming process of hiring expert witnesses and digging up the necessary evidence to build an effective case. A wealthy defendant, however, is able to hire the best lawyers and pay them to do whatever is necessary to win.