CrimLaw

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Here's a plea for the law to go back to being a shield between citizens and those in power rather than a sword in the hands of prosecutors. Much of what the author says is true (although I prefer the Franklin quote that 100 guilty should go free lest one innocent man be convicted). No matter how often we repeat the words "proof beyond a reasonable doubt" and "innocent until proven guilty" they ring awful hollow when you are standing in front of a court. Each time you have to convince the the trier of fact that these standards actually exist and should be applied to your client. This can be especially difficult because your client is usually a member of the tired, poor, homeless, tempest-tost, wretched refuse (you know the "huddled masses yearning to be free" whom we invite to our land and promise a fair shake) rather than an upstanding member of the community. Try this one day: go to court (this works best in traffic court) and watch the swearing matches between the citizens and officers. If there is a presumption of innocence and the officer and the citizen have differing testimony one would think that the citizen would win if he is protected by our laws. Note how many times that actually occurs. Then compare it to the number of times the judge rules in favor of the officer. If you sit through enough traffic court dockets you will eventually see a citizen who does not get it and argues and fights with the judge until the judge finally says "Mr. Jones, why should I take your word over the officer? He says you are guilty. He would not lie. You are guilty."*

Of course, if we actually applied the standards expressed in our high-idealed constitutions it would make life as a defense attorney far easier. And where would be the fun in that?

* Judges in the general district courts are often amazingly honest. Their words are not committed to a record. Should someone choose to appeal their decisions there is an entirely new trial and the words and actions of the district court judge are not subject to scrutiny. This gives them an amount of freedom not shared by their brethren in circuit courts where every word is recorded and can be reviewed. Pity the poor circuit court judge who is as honest about his reasons rather than reciting the approved reasoning of the appellate courts. He will be appealed time and again and have those words used against his decision.