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The Sixth Amendment’s Confrontation Clause

In our second video, we square off with the Sixth Amendment’s Confrontation Clause. It’s one of our most important, but misunderstood constitutional rights. When someone accuses you of wrongdoing, your right to confront them may be the only way to clear your name.

Black and white cowboy hats


In a western, how do you tell the difference between the hero and villain?  It’s easy. The hero is wearing the white hat.  The villain is wearing the black hat.  

In a courtroom there are two tables. Usually the prosecutor and a policeman sit at the table closest to the jury box. The other one has the accused and his lawyer. Now I am going to ask you to do something.

Imagine there are two sets of cowboy hats. Two white. Two black. Now, put them on the people you believe should wear them.

Who do the black hats belong to?

What about the white ones?

Go with your first thought.

Your answer probably had more to do with expectations than extrapolations. I bet the person whom the judge told you was charged with a crime got one of the black hats. I bet his lawyer got the other. I also bet, I would’ve won a lot of money on that wager.

We want to correctly label the good guys and the bad guys, the hero’s and the villains, the Jedi and the Sith. We don’t want to put the black hat on the wrong person. But certainly, there are times when we do.

It’s hard not to default to the usual suspects. Don’t feel bad. It is just the way our minds work. Remember it took Yoda until the end of the third prequel, to realizes the Palpitine was the bad guy. And he can use the force. The rest of us have much less powerful truth detectors.

However, a long time ago…in a place not so far away…we recognized the perils of putting the black hat on the wrong person. And how easily it can happen when the government merely accuses someone of a crime.

We also recognized how our country’s British ancestors used such accusations as a means of tyranny. So, we made rules to protect the innocent. Even at the risk of letting some of the guilty go free. That most fundamental of them is the presumption of innocence.

In a way, it’s a rule that tells us who starts off wearing the white hat. We all, in one way or another, know this rule. Yet, we still want to put the black hat on the accused after just seeing him. Without hearing any evidence. Despite the rule.

However, our constitution is more than just a set of written rules. It’s supposed to be a reflection of the way we live the unwritten ones. It is supposed to be evidence of our country’s moral nature. A statement of collective character.

If we think of the presumption of innocence as an extension our democracy’s character rather than a written rule, it may makes the task of putting the black hat on the right person a little easier.

 

 

 

 


 

Default judgments

 

We like to believe we’re the product of our own choices. Of course we are. But perhaps more so, we are the product of the choices we don’t make.

A default choice is preselected. It requires you to do nothing. It’s an attempt to set and maintain a status quo. It embraces a truth that where you start can control where you finish.

Keep in mind it’s someone else’s choice. Someone else’s desire which they want you to adopt. It’s presented (or at times not presented) in a manner intended to persuade you to – not unchoose it.

Default settings can be relatively harmless manipulations. Ever wonder why Google is so often the default browser when searching the web? It’s not by accident. However, as far as I can tell, the choice of what browser we use to search the internet doesn’t have existential implications (at least for everyone besides Firefox).

What about the things that do?

Our justice system has plenty of default settings. Some are the foundations of our democracy. Others, quietly undermine our constitutional values. Even to the point where they can manipulate the difference between guilt or innocence.

If you think the undermining stuff has no bearing on you…think again. You’ve probably never been arrested.  However, the odds are getting better. More recently, the data shows there are over ten-million people arrested in our country each year. That’s like arresting the entire population of North Carolina.

To be fair, chances are, many of the people arrested broke the law. Chances also are, too many of these people didn’t. Even a well-intended search for guilt is far from perfect. Nonetheless, in light of the numbers, you may not want to dismiss this as someone else’s predicament. 

The rebranding process

For instance, let’s consider the rebranding process. Before anyone enters our justice system there is a pre-made decision specifying how each person will be classified. Accordingly, after a person is merely accused of a crime the default course of action is to replace their name with a label.

Such casting metaphorically transforms an individual to a member of an undesirable group. You are now a defendant. It’s a sticky label. Once we think of someone as – something – it’s unlikely that we will ever unthink it. Dehumanization makes the path to voting guilty easier to travel than its alternative.

Mandatory defaults

The most visible of default settings may be mandatory minimum sentences. Years before someone ever committed a crime, a group has already determined the size of the debt a person must repay to society for a violation. This default setting essentially removes all considerations other than: did the defendant break the letter of the law.  

Within us

Then there are also the default selections, within the people, within the system. Everyone has a point of view. It’s part of being human. It can also be the ultimate default setting.

It turns out our constitution is much more susceptible to erosion than revolution. While it takes a two-thirds majority vote of congress to alter our Constitution, one dogmatic legal opinion can tragically taint it without most of us even noticing.

Take the wordplay in the Louisiana Supreme Court’s lawyer dog decision. The court determined a young man didn’t invoke his right to counsel…when he plainly invoked his right to counsel. 

When a person who has been arrested, says to the police, give me – a lawyer, dog – we know what he means. He is not talking about an attorney with expertise in canine rights. He is not referencing a dilemma unrelated to why he is now in handcuffs. As law schools have yet to matriculate dogs, it’s obvious the young man under arrest was asking for a human lawyer.

Is there a better explanation for the result here than mental defaults at play? Please share because I can’t find it. I believe this decison most likely illustrates how a slanted frame of mind can disconnect words from their obvious meaning. Maybe seeing the man as a defendant contributed.

Only a obstructed point of view, which overvalues a conviction, mentally removes the comma between the words lawyer & dog.

Our system is filled with these defaults. They shape the justice we give ourselves…and the injustice. When unnoticed, a default ripens into a choice we don’t make, but still abide by. It becomes the mechanism which makes us the product of another person’s choice.

However, the most important lesson maybe within the word itself. Default means more than a preselection. It can also mean a failure to fulfill an obligation. If we believe in justice, then we all have obligations to it.

Democracy requires that, each of us, protect against becoming what Emerson described as the “thoughtless man.” It’s our democratic duty to pay attention. To look at what’s going on in our system. To question the constitutional answers we are given. These are the dues we must pay in our democracy.

Yes, there are times when default means a preselection. Yes, there are times when the word means a failure to fulfill an obligation. It turns out, there are times when it means both.

 

 

 

 

 


FBI Uniform Crime Reporting Program

 

 

Forensic fraud

If it was just a lack of knowledge, then our task would be so much easier. If it was merely a failure to live up to a standard of care, then the fix would be straightforward. However, it’s so much worse than that. What we actually have is wide-scale fraud. A deception which is firmly entrenched within forensic science.

The principle forensic deceiver doesn’t even work in a lab. The greatest con artist of them all is….you.

Who are you? You’re just like everyone else. You’re a law-abiding citizen that works hard to earn a living. You probably have high moral standards and a tremendous respect for authority. You have only the best of intentions. By almost all measures you’re good.

Then you get called for jury duty. You embrace this civic responsibility. And this is where it happens. Things change once you’re picked to hear a criminal case.

Here, in this place, faced with this task, you become unmindfully selective. You adopt an unearned imbalance in weighing what’s placed before you. Facts that should resonate now fail to even register. You hear everything, but only intermittently listen.

You’re serving what was until now an almost indiscernible need. A need to believe that we live in a world that’s just. It’s a constant craving that can’t ever really be satisfied. It turns a supposition into a hypothesis. It lives just beneath consciousness.

People get what’s coming to them.

Being put in the position to decide guilt or innocence triggers this need like few other things could. Somewhere deep inside, you know. The accused must deserve to be here. Without realization, your judgment becomes driven by this hypothesis of the world.

The moment you’re told the government’s case rests upon the results of a forensic test you feel something. It’s almost comfort. So close to comfort that any result, which merely appears to decide the accused’s fate, is good enough for you. Regardless, of what the test actually tells you. Regardless, of its quality. Regardless, of whether the results are worthy of your trust.

You don’t even need to hear the results. You already know them. You wouldn’t be here if he was innocent. Your world has to be this predictable.

Now, you’re primed.  The results will conform to – your conviction.  You will find a way to fit them in what you must believe.  Your belief that the person on trial deserves to be here. He deserves to be found guilty. The results will conform to – his conviction.

You’ll accept whatever that test results say, as long as it’s guilty. As long as, the results tell you everything you believed about the world was correct. That’s the only reality you can comprehend. It’s the only way you can get out of bed in the morning.

This process will overwrite any directions, rules or edicts given by the person wearing the black robe. No matter how loudly they’re delivered. Those types of safeguards have little value in what John Adams called “[t]e Labyrinth of human nature.”

This is your fraud. Your forensic deception. It’s hard to believe there are so many of you.

Is this you?

Most importantly, will you, let it be you?

 

 

 

 

 


 

The case for Wonder Woman

Wonder Woman Rebirth, #1 DC Comics


 

 

 

 

 

 

 

 

Who is the world’s greatest superhero?

Batman is a great detective. The Flash is really fast. Superman can basically do anything (as long as he is not near a green rock). However, I have come to believe none of them is the greatest superhero. As a matter of fact, they’re not even close. It’s Wonder Woman.

Let me make the case. The analysis begins with defining our criteria. We don’t judge a superhero’s greatness by the color of their cape. Couture doesn’t help in the fight against evil. Nor do we judge a superhero’s greatness by their ability to throw or take a punch. A superhero must be more than a blunt instrument.

Most of us merely judge a hero’s greatness by there superpowers. That’s too simplistic of a methodology. It fails to address, what they call in algebra class, a type of confounding variable. A thing outside of a hero’s superpowers that may affect the results of their actions.

Just as important as a hero’s power is why they use them. Character is fundamental to our analysis. Not just acting beyond the call of duty. Not only putting the well being of a stranger before their own. Those are the job’s minimum requirements. I am talking about their worldview.

What value do they put on things that are essential to us everyday people? Like freedom, liberty and dignity. Do they have a moral core that guides their actions such as, in the case of Wonder Woman, “[i]t’s not about deserve. It’s about what you believe.”

We should want heroes that act in the name of justice. We should want more, heroes that actually do justice.

Once we establish that a hero has the proper belief system, then we must ask a fundamental question: how well do a hero’s powers effectuate their values? Batman’s intellect, self-discipline, and fortune plainly help his quest for justice without bullets. Superman’s x-ray vision, strength and ability to fly certainly help him to win his fights for truth justice and the American way.

However, no hero’s powers better fit her values and empower them, than Wonder Woman. While Superman strives for the principles of truth and justice.  Those are actually Wonder Woman’s powers.

With her Lasso of Truth, she can ensure she always gets the person that did the crime. Unlike any other costumed hero, she has the power to compel honesty. She is a super lie detector. Unlike with any other hero, we can feel certain there are no innocent people sitting in prison because of Wonder Woman.

She has the power to get it right. What ability or power is more super than truth? Perhaps, the worst thing to happen in the name of justice is convicting an innocent person of a crime. Perhaps, preventing such a tragedy is the greatest thing. What hero can ensure this will not happen…other than Wonder Woman?

I rest my case.


 

 

 

 


 

 

By Lawkop on January 11, 2018 | Legal Storytelling, OpEd | A comment?
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Lawstruck

 

I believe…we want to believe…that our justice system protects our rights. As a matter of fact, there are times I have to believe it. We have to believe it. Of course, many times it does. That’s what makes America exceptional. Then there are the other times.

Too often the justice system appears to work against its own supposed values. However, systems don’t have values, only people do. Systems just reflect them.

We created our constitution based on beliefs we declared self-evident. However, what many of the people in-charge of the system believe, is not as self-evident as we expect. Accordingly, neither are their values.

Don’t believe me?  The proof is in their actions. Let’s take a quick look at just a few products that have recently come out the end our justice system’s production line:

The United States Supreme Court’s decision in Citizens United v. FEC, 558 U.S. 310 (2010). This decision might be the biggest gut punch to our democracy in the last century. The case is the personification of the belief corporations are people too. It holds the government can’t stop corporations from spending money to persuade voters to support a political candidate or discredit them. To reach this result, the decision redefined corruption in a way that is hardly self-evident.  I love my Iphone but I don’t think Apple (or any other corporation) was the intended recipient of First Amenmdent rights.

State of Arizona v. Voris, a decision in the State of Arizona (my home turf), which appears to completely violate the Sixth Amendment’s guarantee to the Right to Confront your accuser. This despite a United States Supreme Court case that mandates the complete opposite.

Davis v. United States, which you really have to get into the weeds to see the consequences of, is a case where the United States Supreme Court may have ended the Fourth Amendment’s protection of individual liberty as it was intended.

Reading each of these cases left me awestruck. Not in the more modern sense of the term. More in it’s old school definition: overwhelmed by reverential fear. This combination of law and awe, in the words of Colonel Nicholas Fury, well…It’s stuff like this that gives me trust issues. It’s hard to even find a word in the dictionary to described my reactions. I’m just Lawstruck.

These legal decisions are not ideological or political difference of opinions. These are the legal equivalent of determining bacon is vegetable. Believe it if you wish. Just don’t be surprised at your cholesterol levels.

At the same time, it’s important to keep in mind that these are not the products of bad people. The problem is much more nuanced and and complex than just putting black cowboy hats on the authors. On the contrary, I would bet these decisions, and the so many others that follow suit, were likely authored by very well intended people. They just either can’t, or are unwilling to, see that their actions are often at odds with why we created the system in the first place.

These decisions reveal what many people in the system value most. It’s not individual rights. That’s self-evident.

What leaves you Lawstruck?

 

 

 

 

 


 

Guilt Free

 


No jury has ever found a person innocent. They’ve voted “not guilty”. They’ve been unable to decide guilt. But they’ve never given a verdict of “innocent.” Why would they? It’s not an option. If we want justice…it can’t be.

Before I explain, consider the following from founding father John Adams. You might remember him as our second president. You may recall his role in the Boston Massacre Trial. Perhaps you just know that his cousin has a beer named after him:

We are to look upon it as more beneficial, that many guilty persons should escape unpunished, than one innocent person should suffer.

The reason is, because it’s of more importance to community, that innocence should be protected, than it is, that guilt should be punished; for guilt and crimes are so frequent in the world, that all of them cannot be punished; and many times they happen in such a manner, that it is not of much consequence to the public, whether they are punished or not.

But when innocence itself, is brought to the bar and condemned…the subject will exclaim, it is immaterial to me, whether I behave well or ill; for virtue itself, is no security. And if such a sentiment as this, should take place in the mind of the subject, there would be an end to all security what so ever.

~ John Adams, opening statement in the 1770 Boston Massacre trial.

These words may have been the seeds from which our justice system grew.

Adam’s embraces the inevitability that innocent people will be mistakenly charged with a crime. All governments, even well-intended ones, make such mistakes. Thus, we must protect against the inevitable.

We start by recognizing that innocence is hardly ever knowable. Almost never provable. Regardless of your methodology. To task people with determining, what is likely undeterminable, is not justice. It’s no protection for the innocent.

We also don’t ask people to determine what’s in a person’s heart. A jury is not democracy’s sorting hat. It’s intended to be more about the evidence of an event than the evidence of a person’s life. A trial is not intended as a test of moral character.

Perhaps most importantly, instead of determining innocence, we only ask people to decide guilt. To accomplish this we define it particularly. We define guilt in a courtroom differently than we do out of it. The law says a guilty verdict is only when, every juror has been convinced by the government, beyond all reasonable doubt, that the accused has broken the law.

There’s no justice without these values firmly held within its machinery. Justice requires a distinction between “not guilty” and “innocent”. When rendering a verdict people are given two choices. Innocent is not one of them. Rather, we only permit a choice between guilty or not guilty. Proven or not proven. If we depart from this, we depart from our own safety.

At least, that’s what Adams believed. At least, that’s what I believe…justice requires “many” guilty people must go free. As crazy as it might first sound, that’s the only way to protect the innocent. Otherwise, there is no value in innocence.

What do you believe?

 

 

 

 

 


 

 

 

The best bad

Lawyering sometimes requires the continuing process of making the best bad choices…to get to best good. Most of us can survive the best bad, but not its opposite.

 

 

 

 

 


 

 

Failure

 

Vincent Van Gogh’s Red Vineyard at Arles

A terribly effective method of avoiding success is to grade it based on a fantasy.

It’s a fantasy to think the best team always wins. It’s a fantasy to think everything, or even most things, in life are fair. It’s a fantasy to think the best performance always wins or even gets immediate gratification.

Vincent Van Gogh is considered one of the greatest artists of all time. It’s a shame no one ever told him.  As many historians report, Van Gogh only sold one painting during his life – Red Vineyard at Arles. He never knew what would be his future recognition.

There is a truth from Van Gogh’s life worth remembering.  Did Van Gogh’s work only become great after he was dead?  Of course not.  We just didn’t see it.  It was great the whole time.  I wonder what would have happened to Van Gogh if he could have seen then – what we all see in him now. 

 

 

 

 

 


The lines on the page

A good lawyer spends their time mastering the lines on the page. But the lawyer I want to hire, is the one that spends their career obsessing on what’s between them.

 

 

 

 

 


 

By Lawkop on | OpEd
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