Posting #15- An essay; On Truth

By: Kelly; the Georgia RSOL Affiliate Organizer/Coordinator
Date: 12/29/2008

That it is better 100 guilty Persons should escape than that one innocent Person should suffer, is a Maxim that has been long and generally approved.¨
BENJAMIN FRANKLIN, letter to Benjamin Vaughan, March 14, 1785

The matter of innocence is predicated on two cardinal points. The first is the presumption of innocence. A person accused does not bear the burden of proof. This has been a cornerstone of Anglo-Saxon
principles of justice since Blackstone. This principle in practice had previously been an admonition to the court rather than a codification of law. In Exodus the people are admonished by God to not punish the innocent nor free the guilty at risk of later judgment. However, the presumption of guilt stood and the accused was burdened with proof of innocence until the 18th Century.  
Blackstone, the influential English Jurist, held two principles that underlie our principles of government and justice. Blackstone held that government exists at the whim of the people, and he first fixed the principle of innocence until proven guilty which Franklin later references in his letter to Vaughn.

The second cardinal point of innocence is evidence. The State bears the burden of proof. First, it must be proved that a crime has occurred. Second, it must be proved that the accused committed the crime.

Enter here, the adversarial justice system. In this sort of justice system, there arise two theories of the case.  A. The State:  the prosecution presents its case in a way that supports the theory that the accused is guilty. B. The Defense:  defense presents its case in a way that supports the theory that the accused is innocent. Weighed in the balance is the evidence.  In an ideal world, this process leads to either conviction or acquittal, with the evidence being the sole presiding fact… In an ideal world; to borrow from Hamlet – Aye, there is the rub!

First, there is one set of facts. It is arguable, given one set of facts and two opposing theories, the first victim of adversarial justice must be truth. In their work, The Tyranny of Good Intentions:
How Prosecutors and Bureaucrats are trampling the Constitution in the Name of Justice, Paul Craig Roberts and Lawrence M. Straton, discuss the abuse of prosecutors who are rewarded based on the number of convictions they obtain. This ‘merit’ system of promotion removes the first duty of the prosecution, to prosecute the law. In this ‘merit’ system, the prosecution loses sight of the moral and ethical duty to uphold the law in favor of prosecuting the accused.

Do not let this crucial distinction escape in the subtlety of the words. It is not the duty of the Prosecutor to convict based on accusation. The first duty of the Prosecutor is to the law. In that duty, the first duty of the Prosecutor is to determine if the evidence supports the accusation and to ensure that all exculpatory evidence is given just weight in favor of the accused. That difference, no matter how subtle the language is the Blackstonian Principle of Justice. The Principle of Justice spoken to by Franklin.
It is the Principle of Justice Americans proudly hold up to the World: Innocent until PROVEN Guilty.

 In an ideal World… There was opposition to this ideal even at its outset. Justice Blackstone had a student, Bentham. Bentham, an able Jurist in his own right held that the people suffered at the will of the government, thus the Reign of George III. That opposition did not halt with the American Revolution. That opposition is being resisted to this day and Bentham is winning. 
Blackstonian Justice is overturned by Benthemite legislation and prosecutors who ignore their first duty in favor of winning at any cost.

In the middle of the last century there came a justified outcry. Victims of sexual assault were being degraded in court by aggressive defense that did not seek to defend the innocent. Rather, defense attorneys discovered that they could win by degrading the victim and making him or her¨(most often ¨her¨) appear to be the cause of the crime. Women were hauled up before the public and their entire past sexual history was paraded in a way that made them appear far from respectable. Legislatures properly passed Rape Shield Laws to protect these victims and make the focus of trial the crime.

This is right and proper. While the burden of proof must rest with the accuser, the State, this does not allow the accused to blame the victim. It does not matter that a victim might be made to appear culpable. The issue must be whether a crime was committed. The duty of the State is to demonstrate a crime has been committed and to prove the accused committed the crime, with the caveat that the State must consider all exculpatory evidence before bringing the matter before the court. The duty of an ethical defense attorney must be to ensure that the accused is not convicted of any crime the accused did not commit.

This ideal World has been assailed. There are those who complain that there are now two victims, accused and accuser, in this assault. There is truly only one victim, Justice… Truth.
 In the later middle of the last century, it became popular to maintain that ‘Children do not lie’ about an event as significant as sexual assault.

There may have been a time when that was true. The ‘experts’ used such devices as anatomically correct dolls and observation of behaviors children of a particular age should not understand. The flaw in these ‘diagnosis’ is simple to see. The ‘experts’ based their observation on their own knowledge of children from the literature that studied children a decade removed from reality. Any person who watches a child and bases their understanding of the child’s behavior on their own behavior at that age misses what the most pervasive influence in a child’s life is:  TELEVISION! (and now, add INTERNET).  Overt sexual behavior is the hallmark of everything from Saturday morning cartoons to the supposed ‘Fair and Balanced’ news, and to much of what children may easily access on the internet.

The presumption that ‘Children do not lie’ about something as significant as sexual assault presumes that children (read minors in the eyes of the law) understand the significance of the consequences of such a lie. That simply cannot be in today’s educational environment of ‘Good Touch/Bad Touch’. Children are taught that if a ‘Bad Touch’ occurs, they are to report it immediately. On the surface, this is a good thing. Any child who is made to feel uncomfortable should understand that there is good and bad touch. They should also be made to understand that what has happened is not their fault. The system fails in that it does not teach the child how serious the consequences of reporting a bad touch can be.

Here is a very sensitive argument. How much can a child be made to understand about the serious consequences of reporting a bad touch? It is clear that a child cannot understand something outside of their experience. They cannot understand that their report will have a lifelong consequence. In fact, it can be argued that they should not have to understand this.

In an ideal world… but this is not an Ideal World!    Prosecutors, bureaucrats, and politicians have made certain that this is much less than an ideal world.

The possibility for a person who is accused to defend themselves has been removed by legislative bar, prosecutorial misconduct, and bureaucratic insensitivity. In most states, the accused is not allowed to know the exact nature of the charges, the time, or even the place the alleged crime occurred. Prosecutors pile on excessive charges and dare the accused to go to trial. Juries do not listen to evidence, accusers cannot be forced to testify, ‘experts’ introduce ‘evidence’ and conclude that the only reason for exhibited behavior is the alleged act of the accused. Police use lies and inference to bully accusers and ‘witnesses’ into damning testimony or deposition.
 Prosecutors deny the defense access to discovery through a very loose interpretation of shield laws. The ‘victim’ made statements about the accusation. The ‘victim’ is shielded from exposure to the accused.
Thus, the accused is denied all discovery. All the while, given that charges are allowed with no specific date, time, or place, the accused is stripped of any chance of alibi.

Beyond the obvious inability to defend oneself in this environment is the fact that children (minors) DO lie. Much is made of age of consent. This is a legal principle that understands that there is an age below which a person is unable to consent to contracts or certain acts. This is a valid principle. An important part of this principle is ignored. A person below the age of consent is clearly unable to enter into contracts or consent to certain acts because the person is unable to understand the consequences of those contracts or acts. If a person is unable to understand the consequences of the contract or act, the same person is unable to understand the consequences of lying about those acts and accusation of those acts.

A Christian based organization, Break Point, reports from a study by the Josephson Institute that ‘children’, in a survey of over twenty-nine thousand (29,760) high-school students over thirty percent (30%+) responded that they stole. Of these, 23% admitted that they stole from friends or parents. Over 40% admitted cheating on tests. Eighty-three percent (83%) admitted that they lied to their parents about “something significant”.  This study is more disturbing because ninety-three percent (93%) responded that they were ‘better’ than their peers. Over ninety percent of a population of ‘children’ readily admit to lying about something significant and feel that they are more honest than their peers. In fact, ‘children’ lie. Children lie because the only consequence they can understand is the consequence to themselves and they are taught that they are not to be concerned with the consequence of their lie to the accused. This lie is supported by legislation and prosecutors that defend and encourage the lie.
http://www.breakpoint.org/listingarticle.asp?ID=10671

The list of people sitting in prisons from convictions obtained by prosecutorial misconduct and no evidence beyond an accusation is too long to report. One case in point is that of Dr. Craft in Augusta,
Georgia. Judy Jackson and Debbie Nathan, contributors to The Nation, investigated this case. The full story can be found at http://www.thenation.com/doc/20050110/nathan.   A brief excerpt from this story demonstrates why reason must return to the legal system in recognition that times as well as values have changed.

“…Elevating personal concerns over professional responsibilities during work, socializing with patients, violating their privacy by taking pictures without informed consent--all are potential reasons to revoke a therapist's license (which the Georgia Board of Examiners did to Craft). But none have anything in particular to do with sexual deviancy. Nevertheless, Danny Craig, the district attorney for the county encompassing Augusta, had decided that Craft was--as he would later put it publicly--"one of the most prolific, one of the most dangerous child molesters" in the nation.”  “…Such attitudes terrified Craft, as did DA Craig's avowal to charge Kay as a co-conspirator and seize their home under criminal forfeiture laws if he were convicted. The local radio talk show excoriated him as a fiend; the daily paper denounced a magistrate for providing him bail.”  “…A community hotline was set up to document children's complaints of sexual abuse by Craft, and authorities used patient files to track down and interview kids. The hotline was unproductive, and no one complained of abuse--except for one child. Clint, the hyperactive boy who used to visit Craft's house, said he'd been molested but didn't "remember" it until FBI agent Owens told him Craft harmed hundreds of kids and Clint could help lock him up.”
  
In a recent story by ABC News it is reported that there is another disturbing change in values. Teens are regularly engaging in an activity that is criminal. Some of these children have been prosecuted and forced on to sex offender registries for life. ABC News reports that teens are taking semi-nude and nude pictures of themselves with cell phones and sending the pictures to friends.
(http://abcnews.go.com/video/playerIndex?id=6457011)

What is disturbing in this story is a comment made by a teen in the middle of the story. The teen looks directly at the camera and tells the reporter, “Nobody gives a damn.” What society and legislators have declared heinous felony behavior, in the eyes of the next generation is nothing the ‘children’ feel is ‘a big deal’. Couple that with the admitted behavior of lying about something significant, and the laws in place that allow minors to make accusations without having to specify date, time, or place; prosecutors who want to win at any cost to gain their own advancement;  and legislators who champion ineffective and wasteful laws for votes - and it is easy to understand why people languish in prisons and on registries for something they did not do.

There will be those who read this and jump to the accusation that it is an attempt to blame the victim. Those are like the unthinking minds that brought this unbalanced and broken justice to the system of trying sex cases involving children, in the first place.  The assumption is:  there is no defense for a person who commits a sex offense and less defense for a person who commits an offense against a child. Those who claim that this essay attempts to blame the victim must read the entire article by Jackson and Nathan and ask themselves who has actually created and harmed the victims.

We must bring justice back to America. We must deny Bentham and embrace Blackstone. We must protect the victims and accusers from degradation by defense counsel. We must insist that the State, in the person of the Prosecutor, insist on evidence, investigate any exculpatory evidence and return to their duty of prosecuting the law instead of the accused. We must return the authority to judge to the courts and remove the usurpation of authority from the legislature.

Justice, even adversarial justice, can work. It can work only if all involved strive for an Ideal World. This will only happen when legislators remove the impediment to justice they have so improperly placed in the way of fairness when it comes to deciding the fate of those accused of sexual offenses, especially those against children.