Oh, God! Not that DAMN Constitution again!

By Joseph Walther

 

It must be something in the drinking water. I received close to 30-emails last week about legal cases in various parts of the United States. What’s going on? The cases ranged from absurdly stupid to incredibly sad. I was able to research all but four of them. A common thread of the mails, though, seemed to be that our criminal justice system is falling apart. Of course, the emails were grossly short on proof. Mostly, they seemed to describe cases that didn’t turn out the way that the emailers thought that they should have. I can sympathize but… as Mortimer Snerd liked to say to Charlie McCarthy, “Hold on just a gol’ dern minute!”

 

            In this country, criminal accusation is not supposed to rise to the level of assumed guilt. Our Constitution obligates us to assume innocence until the state proves guilt beyond a reasonable doubt. This sounds simple enough, but sometimes it just isn’t. When it isn’t, AND the appellate judges have to rule in favor of the “obvious” scum, all hell breaks loose. Judicial activist labels start ricocheting off the walls, not to mention labels like, “liberal bastards”, “wrist slappers,” and “do gooders.” Without going into specific cases, let’s look at how “beyond a reasonable doubt” is not always what it seems.

 

            A former colleague of mine used to kid around about his system of justice. Anytime that a subordinate broke a rule, he’d say, “We need to bring him in; give him a fair trial; and hang him!” He was always kidding, of course. Others, with whom I remain friends, will see this column and immediately know his identity. Some of them will disagree with the “kidding” part. So be it. Disagreeing is not a crime, so reasonable doubt does not apply.

 

            In criminal law, the burden of proof is ALWAYS “beyond a reasonable doubt.” In civil law, the burden is not as strict, requiring only a “preponderance of the evidence.” Preponderance is much easier to define. So, here’s a simple definition. Given the evidence presented, is it more likely than not that “X” was negligent or broke the terms of a contract, etc.? This always assumes, of course, that the evidence presented was according to long-established rules. If not, the appeals process will kick into gear and some people are NOT going to be happy about it.

 

            “Beyond a reasonable doubt” means that evidence establishes guilt (or a point) to a moral certainty and it is beyond argument that any reasonable alternative is possible. Note, however, that this does NOT mean that NO doubt exists. It simply means that such doubt would not sway the opinions of reasonable people.

 

            Here’s a prosecutorial slam-dunk. Four people, two across the street and two walking past the house, witness a car screech to a halt in the driveway; watch a man jump out and run into the house carrying a gun at his side. They hear a man’s voice shouting at a woman. The woman screams as two shots ring out. The man runs from the house, still carrying the gun. He jumps back into the car and speeds away. The police discover the woman’s body and apprehend the “alleged” killer the next day. He still has the murder weapon; his prints are all over it; and his shirt has some of the victim’s blood on it. In addition, they uncover the fact that he found out that she had been cheating on him and he had threatened to kill her two days before the shooting.

 

            This is a simple one. As my former colleague always chided, “We need to bring him in; give him a fair trial; and then hang—or, as is the case nowadays, inject him!” Absent any affective legal mistakes, there’s no reasonable doubt here. Not even the Ninth Circuit Court of Appeals, the undisputed champions of the liberal courts, would be able to reverse or remand this one. Although I suspect that they’d give it their best effort.

 

            Unfortunately for law enforcement, criminals rarely hand them a gift like this one. Much of the time, juries must decide not only whether a main fact of a case has been proved beyond a reasonable doubt, but that other subordinate facts have also been proved beyond a reasonable doubt. It isn’t that juries can’t do this. They can. More often than not, a trial judge fails to instruct a jury that it MUST do it. Here’s an example.

 

            A state prosecutor charged “A” with the first-degree assault of “B.” The state attempted to prove the actus reus element of the crime with two discrete subordinate facts: (1), that the victim identified “A” and, (2), that “A” had been similarly linked to other crimes using the same mode of operation, um, I mean modus operandi. (Judges love Latin terms. actus reus means “guilty act” and constitutes the main element of the crime.) The defense countered with two significant pieces of evidence: (1) the police used improper lineup procedures in that they suggested the outcome (a common law and order hotshot ploy), and (2) proof that their client was not specifically involved in any of those other crimes.

 

            When the trial judge instructed the jury, prior to deliberating, he instructed them to apply the burden of proof to the actus reus elements of the charge, but did not include the subordinate facts as requiring the same burden of proof. As such, the jury simply combined the subordinate facts with the actus reus elements and found the defendant guilty. The excrement hit the oscillating device when the defense appealed the verdict.

 

            The defense showed that the accuracy of both subordinate facts were essential to a guilty verdict. It showed that the trial judge had erred in his instructions to the jury, in that he did not instruct them to apply the same burden of proof to the subordinate facts of the case. The state appellate court agreed; and remanded the case back to superior court for a retrial. The appellate folks could have, just as easily, reversed the verdict, but didn’t.

 

            The defendant in this case was not a very likeable person. Many people described him as not very nice… “co*k-s&%king scumbag” was the most often used term of social endearment by those of, shall we say, a more direct method of communication. When the results of the appeal hit the newspapers, people accused the appellate judges of being “liberal pansies.” They didn’t actually say, “liberal pansies;” but I’m not going to print it.

 

            The defense lawyers did their jobs. They forced the state to prove its case beyond a reasonable doubt. The problem was the trial judge’s legal mistake. He didn’t mean to make it; but he did. The defense lawyers called him on it. As I reread the entire transcript of the case, my gut continually screamed into my ears, “GUILTY AS HELL.” Unfortunately, we can’t base a guilty verdict on our haunches. It would be like a jury finding a defendant NOT guilty, but the judge giving a ten-year sentence “just to be safe.”

 

            Likewise, appellate judges shouldn’t let personality influence their decisions. Sometimes they do, though. This defendant was as bad and unlikeable as people claimed he was. Luckily, the trial judge’s legal error was not so egregious as to demand an outright reversal. Still, it would have been interesting to see the outcome (remand or reversal) had the defendant been a highly disgruntled but clean-cut, likeable, and literate family man getting his “pay backs.”

 

            A jury found the defendant guilty on retrial and the judge rendered an appropriate sentence. It will be a while before he gets out. Things have calmed down on the critique front, also. After all, the sleazebag got what he deserved in the end. However, here’s a reminder for all of you no nonsense, mandatory minimums, law and order, fry-the-bastard types. It’s OK to “bring him in; give him a fair trial; and then hang him.” You have to do it according to our constitutional mandates, though. If it were one of you, you’d want these requirements elevated to the same status as the Sacraments!

 

            I’ll be back next week. Stay safe and remember that daylight saving time begins this weekend. You’d better be at work, ON TIME, Monday morning. Otherwise, we’ll “bring you in; give you a fair trial, and then hang you!

 

Joseph Walther is a freelance writer and publisher of The True Facts. Copyright laws apply to all material on this site. Send your comments. Just click here.