The Flaws In Our Legal System
Wednesday - June 10, 2009
Some journalists are writing that we’re about to see a contest between President Barack Obama and Chief Justice John Roberts over the direction of the Supreme Court of the United States.
Journalists see much of life as an NBA Finals or a Super Bowl.
Most of you are worried about your jobs and diminished retirement savings, not the SCOTUS nominee. We haven’t given a hoot about any judge since 2004 when Circuit Court’s Sandra Simms was denied reap-pointment because of perceived softness on criminals.
People are whacking Sonia Sotomayor over an Appeals Court opinion upholding a lower court decision that a city could refuse to certify a fireman’s test because no minorities passed. She was merely applying the law.
I’d have certified the test because I don’t believe we should lower tests so those not qualified can be promoted. I’ve become leery of today’s affirmative action.
My legal-side mind probably has overtaken my empathy. Back in not-so-small-kid time I wanted to be a criminal trial lawyer. I did my law degree through a program the USAF Judge Advocate General’s office ran with LaSalle University. I didn’t take the bar exam. I went into journalism.
I’d become disenchanted with law over a couple of issues.
One is advocacy. Criminal lawyers advocate for their clients - the prosecutor for the people, the defense lawyer for the charged person. It’s not about finding the truth. It’s often who puts on the best show.
I was reading former Gov. Ben Cayetano’s memoir about defending a fellow who’d shot his brother-in-law five times. The shooter said he remembered firing the first two times in self-defense when the brother-in-law lunged at him.
Then Cayetano interviewed a woman who’d originally told police she only heard the shots but now admitted she saw the whole thing. The shooter had fired twice and the brother-in-law went down.
Then he polished off the fellow with three more shots. Obviously not self-defense.
So did Cayetano report to the judge on this damning evidence against his client?
No, and under our rules he wasn’t required to. It’s the prosecutor’s job to unearth evidence. The fellow was acquitted of murder and only convicted of manslaughter.
My second dismay is over what’s called the exclusionary rule.
If there’s a technical flaw in the way police collect evidence, that evidence cannot be presented at trial. So in a gambling-game robbery here, even though police found the loot in one robber’s house, the court decided there should have been a warrant and excluded the evidence. The robbers walked, and one became a state security official.
To me, a better rule is that if police find the evidence without a proper warrant, the case stands. If they improperly search a house or a person and don’t find the evidence, then the offended person can sue the pants off the government.
Any comment from lawyers?
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