Conventional collectivist created authority is a deception in consciousness. You are your own Authority!

Thursday, January 27, 2011

Reliable Justice: Must it Cost Us a Fortune?

Federal and Arizona state Investigators by the hundreds are still combing through the crime scene evidence, interrogating witnesses, examining the contents of the accused's home and past history as they seek to establish high profile air tight death penalty cases against Jared Lee Loughner for, among many assorted crimes, attempted assassination and murder in the first degree.

Tens of millions of dollars will probably be spent on this one. Decades will pass while the rusty old wheels of justice slowly turn. A trial alone could be horrendously cumbersome, expensive and last many months; the appellate process many years; but first, the prosecution must prove to the court that the defendant is even competent to stand trial; just another obstacle in a long checklist of costly and lengthy legal processes.

Is all this constitutionally necessary for reliable justice?

In a word: no.

The role of the prosecution in a criminal case is to see that justice is done; that of the judge to preside dispassionately determining what law applies; and the defense to demand proof of guilt beyond a reasonable doubt. All Constitutional rights of the accused must be recognized at every stage. That is all as it should be. But that doesn’t mean that all efficiency and economy must be thrown out the window.

Our justice system is still mired fast in the 18th century, a time of flowing black robes, court criers, powdered wigs, and pointless mind numbing traditions and formalities. It doesn’t have to be that way. Justice is not a game of chess.

At the outset, the relevant question is always whether or not there is enough evidence to hold the accused for trial. Police must have probable cause to make an arrest. So the accused should be brought before an impartial judicial magistrate immediately, before questioning, before booking, before any incarceration, to establish the legal validity of the arrest.  

Magistrates should be available 24 hours a day, seven days a week for this vital purpose. Competent defense attorney’s, who are independent from the government, should likewise be available to represent the accused within moments of the arrest.

Once the validity of the arrest is established by a showing of probable cause, the government should have the right to hold the accused or require bail for his appearance at further proceedings. Any interrogation or other direct government involvement with the accused should be subject to continuing respect for all his constitutional rights. That does not have be be burdensome or expensive.

The most relevant question in any criminal trial is whether the accused committed the crimes charged against him. That is a question of fact for a jury of his peers to decide, based upon the admissible evidence, as required by the law and the Constitution.

The Constitution does not necessarily, however, require a jury to decide such ancillary issues as the accused’s motive, mental intent, competency, sanity, degree of culpability, or punishment. All of those issues should properly be adjudicated after the trial without violating any constitutional rights. The trial should therefore come quickly, be concise, and resolve only the relevant questions of fact.

There should be no incompetency defense before or at trial.

There should be no insanity defense before or at trial.

Neither is mandated by the United States Constitution, nor are they necessary for fair administration of justice. Incompetency or insanity might properly mitigate the consequences of an act upon the actor but it does not absolve the actor of the wrong. Stupid and crazy is not a legitimate excuse.

Most pretrial matters should be handled by a motion and order process under which scheduling is flexible and a jury need not be present. Every hearing, every proceeding, every item of physical evidence, every image, sound and word of witness testimony, all proofs, as well as every ruling by the court on objections and requests should be recorded and digitalized as part of the official record of the case.

Much of this activity might take place informally and out of the courtroom. Witnesses, for example, could testify at the crime scene, or a hospital. Objections would be overruled or sustained by the court immediately, and any inadmissible evidence would be blocked from the part of the record eventually given to the jury.

After all sides have rested and the record is clean and complete, a jury would be convened to hear attorney statements and arguments in person, review only the evidence they are supposed to have, and render a verdict based solely upon that evidence. High profile trials would be over in hours instead of months; the process would be far more reliable, and less costly, while every constitutional right would still be strictly observed. A court of law need not tolerate a circus atmosphere in the courtroom.

If the verdict is not guilty, the trial is over, the jury dismissed, and the accused goes free with all his constitutional rights intact, including his rights against double jeopardy. Ancillary issues, if any, are moot.

If the verdict is guilty, the trial is likewise over, jury dismissed, and now the convict may lawfully be held for judicial sentence and disposition. Now is when all those ancillary issues mentioned above should come into play. Now the overriding question is what to do with with this convict; what is in the best interests of justice; and the protection of society; all the while strictly observing his constitutional rights?

Suppose incompetence, diminished capacity, or insanity is asserted by the convict, and/or any of a number of other possible mitigating factors. These are more or less issues of learned opinion, not fact.

Such assertions, if true, support the people’s holding the convict from the beginning anyway, and to continue holding him indefinitely, while at the same time determining where and how he should be treated, and perhaps mitigating the extent of his eventual punishment. No constitutional rights are lost by allowing the court to take such evidence into consideration in determining an appropriate sentence within reasonable parameters.

Again, most of the evidence relative to disposition might be gathered and preserved on the record outside the courtroom to minimize cost and maximize efficiency, while fully observing constitutional rights. After sentencing, the Defendant would still have all his traditional rights to appeal his conviction, sentence, or both.

There should be no death penalty. The Constitution does not mandate any particular penalties, except to say that punishment must not be cruel or unusual. While some convicts richly deserve death or worse for their crimes, and death is neither cruel nor unusual punishment, never-the-less, the whole process of putting someone to death is far too expensive, difficult to implement fairly, and there is just too much room for an error to become an irreversible injustice.


  1. Just who will be these "competent defense attorneys" to be available on a moment's notice, and who will pay them? Will they be another gaggle of low-quality, ill-paid "public defenders?" No, thanks.

  2. They would be paid in the same manner as the magistrate and the prosecutor, or the accused could have his own private attorney present. A public defender is better than nothing.