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My New Book!

Wednesday, July 6, 2011

July 6, 2011: Trial and Error

I’ve written a good deal in this space, including in my March 11th post on the Treaty of Tripoli, about what I consider to be the most radical and impressive feature of America’s founding documents and national government: not only the separation of church and state and the protection of religious freedom (including to be sure the freedom from religion), but also the complete absence of religion (including even the word God) from the Constitution’s language and ideas. As I wrote in that earlier post, it can be easy to forget that every existing nation and government in that late 18th century moment still featured an official, state religion, and wedded church to government in a variety of key and seemingly inevitable ways; so for the framers to go out of their way to create a government with absolutely no such connections, to emphasize instead solely and centrally the right to religious freedom, was without question a bold and striking choice, and constitutes to my mind the most unique aspect of the new nation as it was founded.
Less unique, but just as strikingly central to the rights guaranteed by the framers (particularly in the Bill of Rights), were two legal concepts inherited by the colonies from English common law: habeas corpus, the right not to be detained unlawfully or without charges; and trial by jury, the right to a free and fair trial by one’s peers. The Constitution’s version of the latter was particularly similar to existing practice: in England and in the colonies the writs of habeas corpus had legally needed the authority of the monarchy or its representatives, while the American version extended that legal right to any and every individual; trial by jury, on the other hand, looked pretty similar in post-Revolutionary America to both the pre-Revolutionary colonies and the mother country across the Atlantic. Yet it’s also important to note that more amendments in the Bill of Rights served to extend and strengthen the rights of the accused than to address any other issue—as the first link below demonstrates, the 4th, 5th, 6th, and 7th amendments all highlight and reaffirm such rights (and the 8th’s prohibition of cruel and unusual punishment certainly connects as well). Because of those affirmations, it seems clear to me (although I’m far from a legal scholar) that the American version of trial by jury did go further to protect explicitly the presumption of innocence, and make explicitly difficult the task of proving guilt beyond a reasonable doubt, than the concept’s existing legal practices.
Winston Churchill famously (and perhaps apocryphally, but it’s a great quote) noted that “democracy is the worst form of government, except for all those other forms that have been tried.” The same, I believe, could be said about trial by fury as a mechanism of redressing criminal actions; there’s no question that such trials allow for the possibility that criminals will get away with their crimes, and in fact they make inevitable (particularly, again, given the lengths to which the American system has always gone to protect the rights of the accused, lengths that have been extended further in the centuries since the founding with the addition of Miranda rights and other practices) that some will do so. No matter what percentage of the accused are convicted—and given that, according to some statistics, 90% of all criminal cases result in a conviction by plea bargain without going to trial, that percentage is certainly extremely high—society will always focus on those few instances when a seemingly guilty person is (outrageously, the public outcry notes) acquitted by his or her peers. It’s no coincidence that three of the most popular television heroes (or anti-heroes) of the past decade can be read as direct responses to such outrages: Vic Mackey of The Shield, a corrupt policeman who feels free to go outside the law to bring criminals to justice; Jack Bauer of 24, a more idealized counter-terrorism agent who frequently does likewise; and Dexter Morgan of Dexter, a former cop who has become a serial killer in order to target other killers who have escaped justice.
I’m thinking of all of this today because of Casey Anthony; I had made a valiant effort to avoid any stories or details about the case and trial throughout these months of media frenzy, but have since yesterday’s not guilty verdict given in and learned a bit. It certainly seems as if Anthony did escape justice; speaking solely as a parent, I can’t imagine one of my children drowning and not immediately calling 911, much less duct taping her and hiding the body, and then partying a few days later (which is Anthony’s story of what she did after her daughter’s death). If so, the verdict is indeed an outrageous error. But it’s one that our system and nation require. More tomorrow,
PS. Three links to start with:
1)      The Bill of Rights (most readable by clicking “Read Transcript”):
2)      A story on the many Twitter links of Anthony to none other than Dexter Morgan:
3)      OPEN: What do you think?

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