Ok, here is the scene:
You are home at night with your loved ones. There is a knock on the door. You answer it. It is the police.
You ask them what is wrong and they tell you that you assaulted the girl who lives down the street.
You know you didn’t, although you do know she has…issues. So, you tell the police that you have not done anything to her, but that you know she is a troubled kid.
“So, you do admit you know her, right? I mean, know her well enough to know that she has problems?”, they ask.
You answer that you do.
They suggest that you come down to the station so that you can all discuss this in more detail.
At the police station, you are brought to a room and questioned for hours. Funny thing, while they were interested in the girl’s issues for a while, they have suddenly seemed to decide that you are lying to them. The questioning goes on for hours. They do, however, keep inviting you to tell them what they want to know. They tell you that things will go much easier.
Regardless of what you tell them…they lock you up. From there on, you are considered by most to be guilty of whatever it is that she says you did.
What’s that you say? That could never happen in the good ol’ U.S.A.?
Well let’s look at a few pieces of history. Remember that thing in 1692…I think they called it the witch trials?
People were accused of witchcraft because a few girls told people that they had done bad things to them and were in league with the devil. There were trials, of course. There were also investigations in which they tried to gain the cooperation of a few defendants to make it “easier” on them and their souls. They had neat little tricks like piling big rocks on your chest until you confessed (or died). Another little favorite was tying someone to a chair and dunking them under water. If they did not drown, they were clearly witches; if they did drown, they were exonerated. And dead.
“Well, those were crazy times, Sam“, you tell me. ” That could never happen again.”
Well, at least that is what you would have told me before the 1950’s, before Joseph McCarthy came to town. He was not concerned with the supernatural; he had a much bigger threat to abolish – Communism. You may have heard about it. He had public hearings and everything. It was cool. Of course, in the American way, he was fair. He gave people the chance to confess and turn in their friends. All you had to do was tell Joe and his government body that you were, in fact, the C-word and who else may have been at a meeting. Then, you could go home (your life and reputation ruined) secure in the knowledge that you had damned others to the same fate…whether it was true or not.
But at least Joe (the Commie hunter, not the plumber) did not kill anyone. He just drove them to suicide.
“Well…yeah….ok…..but we realize now that was wrong now. Like the witch hunts”, you tell me. “We learn from our mistakes”.
Uh-huh. Kind of like guilt by association, right? Like those Asian Americans who were locked in Internment Camps during World War Two because they were…well….Asians? We learned that guilt by association is a nonstarter, right? So…what was all that I have been hearing about guilty associations during this political season…?
“Hey, these are all political happenings!”, you protest. “They don’t happen to real people…at least not anymore. Besides, what are they doing in a daily criminal law blog?”
The events listed above have more than a couple of things in common, but I want to call your attention to just two. First, in each of these situations, the accused, in a land that cherishes the presumption of innocence, was, in reality, presumed guilty. It did not matter what, if anything they said in their own defense. Even the saintliest among them was understood to be guilty as charged…regardless of the charge…even before they were charged. The less saintly may have , as humans often do, done something that could be interpreted or misinterpreted as a piece of evidence against them. Either way, though, any public trial was a farce; they were guilty and everyone “knew” it.
The second similarity is even more troubling. They were all done under the color of law. In other words, the tribunals, courts and administrative bodies involved in these travesties of Justice (which are merely among the more well known) were legal government entities with the lawful power to do what they did.
So, let’s get back to the scenario I described at the beginning of today’s blog. You may think that I am making the facts up…but I am not. Further, the description does not simply reflect one unusual circumstance that I have handled in the more than 20 years I have been embedded in the criminal justice system. It fits many. Far too many.
I have seen pretty much every kind of charge prosecuted by now. I have been a prosecutor in Brooklyn, NY and, for most of the time, I have been a criminal defense attorney in Boston. Early on, I learned that once a person arrives in court as “The Defendant”, they become tantamount to a number. While the police, prosecutors and judges would like to treat them as if they were human, the courts are simply too busy to do so and, no matter the education and training, people get jaded.
True, at time of trial, juries are told over and over again that the defendant is presumed innocent unless and until he is proven guilty. In my experience, jurors, who are not so jaded, actually try to follow this rule. But until that trial rolls around, while criminal defendants are presumed innocent, they are assumed guilty.
But a lot has happened in the years since I was “early on” in my legal career. One of the major changes has been the role of the press in the courts. No, they do not have an assigned seat in the courtroom and asked to participate. They just watch. And report. And we, the people, love to read what they say. There is really nothing wrong with that. What I would submit to you is wrong is that the fear of bad press has become a palpable fear in the criminal justice system.
Nobody is criticized for being too “tough” on crime. Everyone, however, is a “Monday morning quarterback”, and although they might not be privy to all the facts, they are quick to judge that someone is too “soft” on crime. The result? The omni-present and often stated fear of, ” What if I let him go and he goes out and kills somebody?”
I am not talking only about murder cases. I am talking about all types of cases. Anybody in Massachusetts remember Judge Lopez? A few years ago, there was an uproar because, among other things, she was labeled “soft on crime”. There was a big stir and people tried to remove her from the bench.
And they did, in effect. At least in Massachusetts. Of course, she did end up with her own television show, but the rest of us are seldom that lucky.
People believe that the police and prosecutors are simply trying to find the truth and “do Justice”. However, most criminal investigations these days, in my opinion, are backwards. The truth is decided and then the investigation to prove the facts really starts. I am not saying that this is intentional, but it happens. As a result, peoples’ actions, which can often be interpreted in many different ways, are interpreted in the way which fits “the case”.
After all, the police figure they can let the DA decide.
The DA figures he can let the judge decide.
The judge figures she can let the jury decide.
And the jury finally decides…about a year, thousands of dollars and a semi-to-totally destroyed life later.
In this daily blog, I generally poke fun at various people and the trouble they get themselves into. I hold my own opinions as to where I think the truth lies in the cases and I sarcastically often let that opinion filter through. But the truth is that I am “true believer” in what I do. I believe that the best way to prevent the abominations mentioned above is a vigilant citizenry…and an active criminal defense bar. In terms of the individual cases, the only one who stands between my client and a ruined life and lost liberty is me. I take that responsibility very seriously.
And that is the main point of this daily criminal law blog. It is serious and sincere. It is easy to find the finger of accusation pointed at you. Often, people are their own worst enemies in such circumstances. The biggest mistake that people make is telling themselves that they can play lawyer…and so waiting to consult an experienced attorney until a great deal of additional damage is already done.
And so, in an entertaining manner, I try to advise my readers not to do that.
It may be bad for business, but it is better for the Justice System.
Have a good and law-abiding weekend and Happy Halloween!
The full articles of these stories can be found at : VARIOUS HISTORY BOOKS AND PERIODICALS