Sunday, April 21, 2013

The Nuremberg defense and the collapse of the American legal system

It’s well known that many Nazi’s claimed to be innocent of war crimes because they were just “following orders”.  While all agree that that is not an acceptable excuse it does reflect an all too common attitude in life where people declare that so long as what they do is “legal” it must be ok.

What happens is the law or some other authority provides a convenient excuse to allow people whose consciences are weak to not have to face the tough decisions in life.

It’s precisely that sort of mentality that has brought about the destruction of the American legal system.

Ask anyone on the street and they will tell you that the purpose of the legal system is to defend the innocent and punish the guilty. That is the purpose of the justice system is to achieve justice; the system may not succeed but that’s what it should try and do, deliver justice.

Ask a lawyer though and you may get a very different answer.  To many lawyers the purpose of the legal system is to follow the rules. That’s why defense lawyers can use every stratagem to defend child abusers and drug dealers who the lawyers know are guilty as sin yet still sleep easy every night.  In the minds of defense lawyers their high paid acumen is not freeing monsters it’s just following the rules; the rules set the monsters free.

Prosecutors can have a similar mindset though in their case it’s motivated by a concern about being responsible for incorrectly incarcerating an innocent person. 

By making the law about following the rules not about achieving justice lawyers on both sides, and the judges, can avoid having to worry that their mistakes are causing others to suffer unjustly.  After all if both sides follow the rules no one can feel guilty about making a mistake can they?

Yet because no system of rules can be perfect, a fact recognized by the very existence of the jury, following rules rather than seeking justice can lead to the effective collapse of the system.

Contrary to a common perception the primary purpose of the legal system in seeking justice is to deter future crimes either by incarcerating criminals or deterring would be criminals.  Yet if the perception of the legal system is that it can be gamed or even worse that it’s essentially ineffectual then the legal system will no longer deter crimes or punish offenders in a rational manner.

But for the legal system to be effective the laws have to support the objective of protecting the innocent and convicting the guilty.  Yet since the radical Supreme Court decisions of the 1960’s the law as been defined as being about following rules not about making sure the guilty are convicted.

While it was a good thing to crack down on police maleficence, since that can lead to the railroading of the innocent, it’s not good to let technicalities throw out clearly damming physical evidence.  Nor should the police have to let suspects know they can ignore the cops and let their lawyer do the talking.  If the suspect is dumb enough to talk and produce evidence known only to the guilty party a system dedicated to justice should encourage the suspect to spill his guts; in a non-literal way.  Justice is served by truth not by deliberately obscuring the facts.

And it’s a good thing when most defense lawyers are bums who can’t make a good living or at least honest enough to not use technicalities to free rapists.  Crooks make money; that’s why they’re crooks. If money can buy them out of jail then it’s clear the system has a problem.  We need defense lawyers who tell defendants who are guilty to plead guilty and concentrate on making sure the punishment isn’t too severe.  Instead we have defense attorneys who will all too gladly use procedural tricks—err rules—to disallow objectively valid evidence. While we can argue that a confession may or not be valid it’s hard to see why the 20 kilos of heroin found in the trunk of a guy who deals drugs to grade school kids should be thrown out because 5 judges after 3 months of thought decide the cop on the scene didn’t have sufficient reason to look in the trunk.

But making a distinction between a cop who’s violating peoples rights in an egregious fashion and one who just came up with a different interpretation of the situation in the thirty seconds he had than the well paid judges did in the three months they spent sipping single malt scotch while contemplating the case requires people to take responsibility; it requires lawyers to take the same burden that doctors do.

Doctors, like lawyers, are high paid and well educated. But every doctor knows that they are not infallible. Every doctor makes mistakes, honest mistakes.  And one of the reasons that people don’t mind doctors making a lot of money is that they realize that doctors have to live with the consequences of their failures.  If most people mess up the consequences don’t involve people dying but with doctors being human caries the price tag of being responsible for the deaths of people.

If we can expect doctors to make the hard decisions there is no reason we shouldn’t demand that high paid lawyers have to carry a much lighter burden—after all only a tiny fraction of criminals are ever executed.

It’s time to throw out the technicalities—like search warrants with the wrong date—and concentrate on keeping the police in line by punishing cops who really violate people’s rights and on making sure that the crooks are put where they can’t harm people. 

Let’s bring truth back into the legal system and make law about justice not technicalities.

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