Free Speech Subverted?

Free Speech Subverted?

Do political candidates, and those who support them, have a right to claim First Amendment rights to protect the lies they tell to gain office?

 


The First Amendment to our Constitution is in more danger today than probably at any time in our relatively brief history as a nation. A cursory check of the news on any given day is likely to turn up one or more stories that relate to threats to this statement of law. The first amendment to our Constitution covers a lot of ground. Today, I want to comment on one small piece of that ground. Over time and as events that tweak my curiosity and/or outrage develop, I’ll be coming back to the Bill of Rights and this Amendment with more posts.


Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. [My emphasis above]


I guess that in a situation where the Supreme Court  has enshrined the principle that the more money you have the more free speech you may exercise (http://www.supremecourt.gov/opinions/09pdf/08-205.pdf), it’s not surprising that politicians and their supporters can commit the moral equivalent of a coup d’état by blatant lying and distortion of facts to gain public office. If yelling “fire!” in a crowded theater, when there is no fire, is not protected speech, how can political lying be protected speech? It seems to me that far more people end up harmed in the latter case.

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The Declaration of Independence – It’s way past time to read it again.

The Declaration of Independence – It’s way past time to read it again.

[A discussion of all the ideas contained in the complete document is way beyond the scope of my remarks here. This is a huge topic. I do believe that the whole document is worthy of discussion in our current political/legal environment, but I’ll leave that to you and other forums. The italicized text, below, is all I want to comment on, at this time.]

“When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

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,”

The above quote includes only the first paragraph and the beginning of the second paragraph of one of the most important documents related to our nation’s founding. I believe that it has pertinence to our nation’s current situation, politically, morally and legally.

My observation and the questions that arise in my mind come from this idea: that the primary writer of the “Declaration”, Thomas Jefferson, and those others who were involved in the production of this revolutionary statement, directed at King George, expressed the belief that the foundation of our law is natural law and the purpose of government is not to grant, define or establish “certain inalienable rights” but to protect them. In other words, our most fundamental rights derive from our humanity, not government itself, not citizenship in our country, not our body of written law.

Set aside the fact that our history is full of evidence that “all men” who “are created equal” have been mostly wealthy, white males. Consider the words of the Declaration. Study the controversial concepts of natural law and “certain inalienable rights” (see links below) and see if you, as do I, see the beginnings of a way to make sense of our divisive contemporary situation and a possible path to a solution to the problem of being trapped in the “divided they fall” predicament.

More on this in the next blog posting.

http://www.iep.utm.edu/n/natlaw.htm
http://www.newadvent.org/cathen/09076a.htm
http://en.wikipedia.org/wiki/Natural_law
http://plato.stanford.edu/entries/natural-law-ethics/
http://plato.stanford.edu/entries/natural-law-theories/
http://jim.com/rights.html
http://jim.com/spooner.htm
http://www.zetetics.com/mac/natlaw.htm
http://www.blupete.com/Literature/Biographies/Philosophy/Locke.htm#TOC

Old Weather? What?

Old weather? What? Why should anyone care?

Do you need to know the weather for a particular day at a particular location in the past? Is the weather pertinent to a legal case? Or do you just want to settle an argument with your spouse?

The Weather Underground site at http://www.wunderground.com/ will tell you the weather at the closest data collection points for dates back through the early 70’s.

First fill in the search box in the upper left corner of the home page to identify the location for which you are searching for weather data. Hit “enter”.

Then go to the “History and Almanac” box on the page that comes up for the location you selected. Fill in the date of interest and hit the “Go” button. You get a page showing a summary of weather details for that location.

Some pages will give you more detailed data (hourly observations and seasonal weather averages) for that date and location; be sure to scroll down to get the extra data when provided.

Remember that the data you get is specific to the location and date you selected. Click on “View Current Conditions” to get the latitude, longitude and elevation for the data collection point.

Microclimates matter. Weather varies over time and, for a specific time, over geographic location and elevation, so, unless the data collection point is your real point of interest, you can only make inferences about the data being true for some other location, even close by.

You can triangulate by getting data from surrounding data collection points. For a recent case, I collected data for Boeing Field, Everett and Bothell to allow more reliable inferences about road conditions for a location near to, but outside of, Bothell.

Be sure to play with the site; it offers a considerable amount of interesting and educational information.

Why would you want to help defend the guilty, Part 2

Because justice requires it

Justice doesn’t find the accused guilty or innocent until the trial is over, and maybe not even then. Has anyone ever been accused of a crime he or she did not commit? Unless you have been living in a cave somewhere, with no contact with the outside world, you know the answer to that question.

Even before the advent of DNA testing, it was not unusual to hear about a person tried and convicted of a crime who was later released after new evidence was presented or original evidence was refuted.

I’ve often wondered how many innocent people have been executed or have been left to serve out their terms in prison because they didn’t have the resources or the good luck to prove their innocence.

Why are innocent people sometimes convicted?

Because of the fallibility of juries of usually well-meaning citizens

Because of bigoted, bad-intentioned juries

Because of the errors, intended or unintended, of police, prosecutors, defense attorneys and judges

Because no system of justice is perfect

Because… Because… Because…

While our system of justice isn’t perfect, it is arguably the best in the world, if…

…if all players in the process are competent and do their best to fulfill their roles.

I firmly believe that if I do my job as the defense investigator and the police, the prosecutor, the defense attorney, the judge and the jury do theirs to the best of their abilities and with the best intentions, then justice has the best chance to be served.

For me the presumption of innocence is the critical underlying principle setting the tone for the process.

Anybody can accuse you of a crime, but for you to be held accountable for the alleged crime your guilt must proven beyond a reasonable doubt in a public court of law. It is my duty to play my role as the defense investigator competently and to the best of my ability because justice requires it.

Why would you want to help defend the guilty?

“Why would you want to help defend the guilty?”

“Do you want to help set a criminal free?”

I get asked that question all the time when I tell people I’m a criminal defense investigator. “What if the person you are helping to defend is really guilty? What if the defense attorney you work for on the case gets him acquitted and he walks free? How can you justify your part in his defense?”

I’ve been asked these and similar questions by some family and friends and by a few people whom I’ve just met. It usually happens just after they find out what I do for a living. These questions usually come from good and well-meaning people.

But the question shows that the person asking is woefully ignorant of our system of justice and its underlying principles. In my experience, it’s unusual to find a person who does understand, who isn’t in the business or wasn’t involved in a criminal or civil lawsuit.

I’m a private investigator, not a lawyer.

My job is to find and document information, gathered from a variety of sources, which my attorney/clients need to properly defend accused persons from criminal charges. I am not judge, jury or prosecutor. It is not my role to judge the accused, even if the accused has a criminal record.

I’ve developed an answer that seems to work for me and for my questioners.

Consider an answer in two parts

I’ve come to the conclusion that the answer to this sort of question has two elements: 1) an examination of the language we use and 2) a review of the basic legal principles involved. I’ll give the first part of my answer in this blog and the second part in the next blog, in about a week.

Is language part of the problem?

Why is it called criminal defense rather than defense of the accused? If a person accused in our court system is presumed to be innocent until proven guilty, why do we use a term that labels the person “criminal” before the trial is conducted and concluded?

I’m a criminal defense investigator. I work for criminal defense lawyers. We work to defend accused persons, only some of whom are truly guilty, truly criminals. The trial is where the guilt or innocence of the accused is determined.

Why is it guilty versus not-guilty instead of proven versus not-proven? In criminal cases the jury must find the accused guilty “beyond a reasonable doubt” in order to convict. Doesn’t the use of “guilty” imply certainty? This term is subjective and less than absolutely certain.

A jury in a criminal case examines and evaluates the evidence and the arguments of opposing attorneys and then deliberates to come to a conclusion about guilt or innocence based on a judge’s instructions about the applicable law.

If a jury doesn’t deadlock, they come back to the courtroom after concluding their deliberations with a verdict of guilty (beyond a reasonable doubt) or not guilty (meaning that they have at least a reasonable doubt). Where is the certainty in this usage? Shouldn’t it be “proven” beyond a reasonable doubt or “not proven” beyond a reasonable doubt?

Words are powerful. They sometimes convey meaning beyond, or at odds with, the intent of the users and consequently program those who hear the words to misunderstand and prejudge.

Maybe people would have a better understanding if we were more precise in the language we use to discuss our criminal justice system and the people charged in that system with crimes.

Maybe my first jury experience would have been different had the language used been different and more precise.

Juries trump judges?

Juries trump judges?

And prosecutors and legislators?

While I’m on the subject of jury duty, here’s a peculiar feature of the law that some prosecutors and judges and others in the legal field seem to be afraid might become general knowledge.

Jury nullification

General public knowledge of jury nullification might put greater power in the hands of juries than that held by judges, prosecutors and legislators (in a very limited but useful sense).

The concept of jury nullification challenges the idea that, in the courtroom, judges interpret the law and juries interpret the evidence and render verdicts under the instructions of the judge regarding the law and its application.

Jury nullification allows the jury to ignore the judge’s instructions and, in essence, nullify, or throw out, the law or its application in the specific case being tried. Jury nullification is the finding by the jury that either the law is a bad law or it is being applied improperly in a specific case.

The concept is centuries old and is based in Common Law, which is part of the foundation of our legal system. Its history in North America starts in 1734 when a printer named John Peter Zenger was acquitted of seditious libel, contrary to the instructions of the judge hearing the case.

Jury nullification challenges State power. As such, it is a dangerous, subversive and powerful tool for maintaining the peoples’ hold on power.

It has a potential dark side. Theoretically, it could be used by a jury of racists or homophobes to acquit a person guilty of a hate crime.

On the other hand, consider the medical marijuana controversy. What if juries in Federal courts refused to convict medical marijuana growers, distributors and users in States that have legalized such use? Could the Federal government continue to interfere with the medicinal use of a proven, beneficial and natural drug?

There are a lot of questions that come to mind as I study jury nullification; I’m just getting started. It’s not my purpose here to expound on a complicated and controversial subject. I would be happy if a few of my readers pursued the study, on their own.

Following is a list of web-based resources. Google for more.

Reactions?

http://www.fija.org/

http://en.wikipedia.org/wiki/Jury_nullification

http://www.levellers.org/jrp/

http://www.crfc.org/americanjury/nullification.html

http://www.law.umkc.edu/faculty/projects/ftrials/zenger/nullification.html

Jury duty with a small stipend and a box lunch?

And no one has to go to jail?

Whether or not you have ever been on a jury, if you wish to have some experience and education on the matter, you might try what my wife and I have done and thoroughly enjoyed on a summer weekend for each of the last two years. We plan on doing it again next summer.

We act as jurors in mock civil and criminal trials argued by practicing lawyers in front of practicing judges.

The National Institute for Trial Advocacy (NITA) trains practicing lawyers to be more effective trial lawyers.

A bit about NITA from their website at http://www.nita.org/:

“NITA’s Mission Statement

“NITA, a 501(c)(3) charitable organization, is a dedicated team of professors, judges and practicing lawyers who believe that skilled and ethical advocacy is a critical component of legal professionalism and all systems of dispute resolution that seek justice.

“NITA’s mission is to:

* Promote justice through effective and ethical advocacy;
* Train and mentor lawyers to be competent and ethical advocates in pursuit of justice; and
* Develop and teach trial advocacy skills to support and promote the effective and fair administration of justice.

“NITA’s Mission Statement defines NITA and articulates its Mission. We will fulfill our Mission through NITA’s Goals and Objectives to be carried out through a Strategic Plan outlining NITA’s programs and publications.

“NITA Long-Range Goals and Objectives

“NITA’s Goals and Objectives are to:

* Enable and encourage lawyers to become effective, ethical and professional advocates.
* Create and promote the highest quality professional and ethical advocacy training and educational materials.
* Support and assist the Judicial System in providing the important, effective administration and resolution of disputes.
* Encourage, support and assist advocacy training for and dedication to public service.”

You can participate for both days or either day. If you do both days, you hear a civil case on one day and a criminal case on the other.

You sit in court, listen to the arguments, select a jury foreman, weigh the evidence and present your verdict to the court.

One thing that happens in these mock trials that doesn’t happen in real life is the post-trial discussion involving the judge, the attorneys and the jurors. The trial experience and the post-trial discussion provide an incredibly educational and entertaining way to spend a day or two.

They give you a small stipend and a box lunch each day. You meet and spend the day with some really nice people.

Go to the NITA website at http://www.nita.org/and explore.

Find out where the programs entitled “Building Trial Skills” are being held and contact them about your interest in participating as a juror in the mock trials. If they haven’t already filled the juror pool, volunteer. I believe you will find the experience (plus the stipend and the lunch) to be well worth your time.