Sooner or later, criminal defense attorneys reach three depressing conclusions about their fellow Americans.
The first depressing conclusion is wow, most of these people don't really support the presumption of innocence or due process of law or vigorous protection of the rights of the accused, especially when presented with an unpopular defendant. This realization is not unique to attorneys; almost everyone interested in criminal justice reaches it.
The second depressing conclusion is wait a minute, sometimes people really do get how important it is to challenge the government's evidence and to protect constitutional and statutory rights! This conclusion sounds cheerful, but is actually depressing because it occurs so rarely.
The third depressing conclusion — following hard upon the second — is aw, shit, people only care about due process in that case because it suits their political narrative.
Today I'm going to pick on Wall Street Journal writer James Taranto as an example of this phenomenon. Singling Taranto out is arbitrary and capricious; he's no better or worse than anyone else who focuses on politics but dabbles in criminal justice.
Monday Taranto wrote a controversial-in-some-quarters column in which he criticized Senator Claire McCaskill's hold on the promotion of Lt. Gen. Susan Helms. Helms became somewhat controversial for a clemency decision in a military sexual assault case:
At issue is the general's decision in February 2012 to grant clemency to an officer under her command. Capt. Matthew Herrera had been convicted by a court-martial of aggravated sexual assault. Ms. McCaskill said earlier this month that the clemency decision "sent a damaging message to survivors of sexual assault who are seeking justice in the military justice system."
Taranto's column has drawn ire, in part, by design. He refers to a "war on men" and an "effort to criminalize male sexuality." Taranto is a skilled writer and no dummy; these self-indulgent flourishes strike me as deliberate trolling, part of the faintly mastubatory tactic of writing something incendiary and then crafting smug follow-up posts about how mad people got at you. That doesn't distinguish Taranto either; it's become banal.
Taranto's trolling is confined, like the opening joke to a speech, to his lede; most of the column is concerned with defending Lt. Gen. Helms by arguing that she was right to grant clemency in the sexual assault case, and that such clemency is "crucial protection for the accused." Taranto supports this thesis by exploring the evidence in the case, attacking the credibility of the accuser, pointing out that the case involved conflicting eyewitness accounts and a he-said-she-said dispute, and questioning (along with Lt. Gen Helms) how the conviction satisfied "basic principles of justice" in light of those flaws.
Does this warm my criminal defense attorney's heart? It does not, because it smacks of opportunism, of mere genuflection to due process and the presumption of innocence to suit a political narrative — in this case, a narrative about a mean Democratic Senator and the politics of sexual assault prosecutions in the military. If, next week, the rights of someone unsuited to Taranto's narrative are at issue, I will not be looking to him for support. I don't expect I'll meet this James Taranto, the James Taranto who questions the reliability of complaining witnesses and the adequacy of government evidence and the inconsistencies of proof. Rather, I suspect I'll meet the James Taranto who criticized New York courts for offering broader protections to defendants than federal courts, deriding them as extending "protections to criminal defendants far beyond those the U.S. Supreme Court has recognized, paralyzing law enforcement and endangering ordinary citizens." I expect to meet the Taranto who derided the "self-righteousness and simple-mindedness" of those of us who were revolted when a Republican primary debate crowd cheered Rick Perry's bragging about 234 executions. Some of those executions were premised on questionable and conflicting eyewitness accounts, but Taranto's skepticism of the government's evidence disappears when it doesn't promote his narrative. Those executions suffered from the taint of politics as surely as Sen. McCaskill's hold on Lt. Gen. Helms' promotion — witness Gov. Perry's thoroughly contemptible efforts to block investigation into whether innocent men were murdered by the state — but those politics do not draw Taranto's ire.
Again, Taranto is not unusual in this. Nor is criminal justice the only issue on which commentators display flexible devotion to constitutional principles. (Compare and contrast Taranto's devotion to freedom of expression in his fascinating story of how his university censored him with his glee at the prospect of deporting the spectacularly irritating Piers Morgan for his incorrect thoughts on guns.)
Should criminal defense attorneys just shut up and accept the occasional crumbs of goodwill towards the rights of defendants that drop, in the right cases, from the tables of the commentariat? No. We should not. Defendants don't deserve vigorous defense because they are emblematic of a political dispute. The government's evidence is not to be questioned because it represents part of a questioned social trend. Witnesses ought not be challenged because their behavior fits an archetype. We should do these things because the government's case against an individual should always be questioned, by the very nature of the relationship between state and individual. "Deserve" has nothing to do with it; the status as a defendant has everything to do with it.
We shouldn't reward people who discover the rights of the accused just because that accused happens to be a rape suspect or a Scooter Libby or a George Zimmerman. When we welcome them to the community of believers, we reduce that community's credibility, because the temporary and opportunistic nature of their belief is transparent. We should not welcome them any more than we excuse people who jettison fundamental notions of due process when the ideology is inconvenient to them.
Sorry, Mr. Taranto. Your skepticism about witness credibility, and your pronouncement about the rights of the accused, are well-written. But I'm not feeling the love.
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