Why bother trying the snipers?

By Harry Browne

After the sniper suspect and his companion were captured last week, I saw a TV political talk show in which two hosts queried two attorneys about the case.

One host asked whether the defendants could get a fair trial in the face of so much publicity. One attorney said it should be possible to find 12 jurors who could treat the case impartially.

Then the host asked whether one could mount a successful defense in such a case. The attorney called attention to the acquittals of Terry Nichols on a murder charge, some of the Watergate defendants, and John Connally – in situations where feelings and prejudices had been equally strong.

At this, the other host expressed shock. He didn’t see how the defendants could be acquitted in the face of irrefutable ballistic and fingerprint evidence.

I then turned the show off so as not to hear any more mangling of the American ideal and the Bill of Rights.

What is a fair trial?

In the first place, a “fair trial” doesn’t mean an impartial jury. There’s no such thing. We all have prejudices and preconceived opinions. We hope to have a truly “fair trial” in order to offset these weaknesses.

A fair trial is one in which the rules of evidence are honored, the accused has competent counsel, and the judge enforces the proper courtroom procedures – a trial in which every assumption can be challenged.

Why we need a fair trial

How does the TV host – or anyone else – know that the ballistic or fingerprint evidence in the sniper case is irrefutable?

Maybe the police “experts” who tested the ballistics and fingerprints made mistakes.

Maybe the evidence was planted. Perhaps while the defendants were sleeping in their car, the real sniper put the rifle and other evidence in the trunk of their car.

I’m not saying these things happened – only that they could have happened. And if they could have happened, it is the prosecution’s burden to prove that they didn’t happen. Otherwise, innocent people might be wrongly convicted.

Perhaps the defendants are bad people anyway. So it might seem to be no big deal if they’re wrongly convicted.

But it would be a terribly bad deal to convict the wrong men, because the real culprit would remain free to continue causing trouble.

Our heritage

The Bill of Rights sets forth some of your protections and some of the rules of evidence:

  • You are to be safe from “unreasonable searches and seizures,” so that officious government employees can’t go rummaging through your home, your bank account, your personal life.

  • You can’t be tried twice for the same crime, so that vindictive government employees can’t keep persecuting you after you’ve been acquitted.

  • You can’t “be compelled in any criminal case to be a witness against” yourself, so you don’t have to speak to a policeman or prosecutor who might be eager to use your words out of context, to twist them, or to browbeat you into confessing to something you didn’t do.

  • You can’t “be deprived of life, liberty or property, without due process of law,” so that no government official can set himself up as judge, jury and executioner over your life.

  • You “shall enjoy the right to a speedy and public trial,” so that you can’t be held in prison indefinitely without getting your day in court.

  • You’re entitled “to be confronted with the witnesses against” you, so that the witnesses’ misimpressions or prejudices can be exposed – and so that no one’s statement can be used without finding out whether he really said it and exactly what he meant by it.

  • You shall “have the Assistance of Counsel for [your] defense,” so that you have the help of someone capable of dealing with law-enforcement people on an equal basis.

There’s much more, of course, but you get the point.

These protections were unique in the history of the world. No other country had written them into the basic law of the land.

Forsaking our heritage

And every one of them has been discarded all too frequently.

Today, thousands of government officials rummage through your life, looking for evidence with which to hang you. Overlapping federal and state laws allow you to be tried twice for the same crime – and then again in civil court.

Federal agencies act as judge, jury and executioner – exercising life or death powers over American companies. And the government is holding hundreds of prisoners at Guantanamo Naval Base with no counsel or trial.

There are conscientious policemen and prosecutors who care about finding the truth. But how do we distinguish them from the law-enforcement officials who are eager to pad their arrest and conviction records?

We have no way of doing so. That’s why Americans once guarded the Bill of Rights and the rules of evidence so zealously.

But 150 years of government schools and politicians dedicated to increasing their own power have made Americans ignorant of their heritage and protections.

And they are left to rely on TV hosts and journalists who are just as ignorant as they are.

Note: In my Statue of Liberty article last week, I misquoted Emma Lazarus in a couple of places, because I relied on my imperfect memory. The correct words are:

Give me your tired, your poor,

Your huddled masses yearning to breathe free,

The wretched refuse of your teeming shore.

Send these – the homeless, tempest-tossed – to me;

I lift my lamp beside the Golden Door.