I recently heard that there were about three billion websites now operating around the world, but instead of saying like a sensible person "Thatís enough" Iíve decided that means thereís always room for one more, and here it is. I took its title from a sports column we used to have in New York which lives in the memory of all its old readers. It featured characters like Al Weill, the fight manager with the wonderful built (sic), Professor Ilitch of the Prosperity Institute with his Secret Play for beating the horses, available to the public for a reasonable price, Phainting Phil Scott, the English heavyweight, and other such individuals often found in the vicinity of Madison Square Garden or Belmont Racetrack.
Not to mislead, I donít intend to write sports or introduce unusual characters found on my travels, but instead to deal in a general way with issues that bother me, and now and then to retail a joke or a story or a verse that will be a appreciated by a cultivated audience such as I hope to attract. How will I know theyíre cultivated? Because I attracted them.
The benchmarks that will find me on a search engine are Catholic, ex-cop, law and order guy, tackles issues with originality and humor too. Thatís me. The judges are you.
||I'm writing this blog once more in a state of frustration because I cut
out a newspaper article by a law professor who tried to sell the idea that,
yes, Virginia, there is a thing called the presumption of innocence which
every last sucker in this country has to accept as settled law and stop
suspecting innocent people who've been busted for criminal acts of being
actually guilty of them.
I found this to be pretty outrageous and I prepared to denounce it and
then...I couldn't find it. I wanted the professor's scalp and now I can't
even remember his name.
Looking for him, though, I came across another crusader who denounced the
law that requires juries to consider only the facts of the case before
them when reaching a verdict. He wants them also to consider the propriety of
the law which the defendant is accused of violating. Is it fair? Is it
constitutional? Does it call for punishments which are too harsh for the
type of conduct it prohibits? Is it this? Is it that?
This kind of thing is a denial of the right of legislatures, including
Congress, to enact any laws at all. We the people elect the "lawmakers" as
they're called, to represent us in confecting our laws. After that we're
supposed to ignore them and redo their work more to our taste. Elections
don't matter, it seems.
There are times when it does appear that an excessive punishment is being
administered to an offender who hasn't quite deserved all of it. Juries
know how to deal with these outcomes. In effect they repudiate the law and
convict for a lesser offense or refuse to convict for anything at all. Many
Prohibition-era cases wound up that way. Thr juries didn't need any
professor to tell them the law was not appropriate to the offense charged and
therefore it shouldn't be enforced by a jury. This was called "jury
The public supported it in those days and then the government repealed
Prohibition. This was eighty years ago and all laws enacted since then have
been relatively more palatable and not deserving of jury nullification,
whatever we may hear from some professor looking for cheap publicity.
Going back to the so-called "presumption of innocence" that my lost writer
of my lost press clipping rhapsodized about, I've decided not to answer it
myself here but to give the job to a fellow named Dick Cavett, who got off
on the subject in a book he wrote about everything in general. Most of
the opinions found in the book come down on the left side of the Great Divide
in today's politics, but in this case he found a lawyer, a district
attorney, and a teen-ager all appearing on different TV shows in one night and
all demanding that their hearers observe the principle of the "presumption"
in cases then current.
Cavett responded to this in the same way I would have. He had research
behind him. For years he'd been checking lawbooks -- and the Constitution
-- to find the origin of this great principle of law.
He couldn't find it anywhere. It didn't exist. Lawyers all believed in
it but they couldn't tell him where it came from. One suggested the Kama
Sutra but he wasn't serious. Most of them thought the Constitution. but it
isn't there either.
Of course it isn't. How could any law in this country be enforced if all
the cops, the jailers, the district attorneys, the judges, the witnesses
-- anyone at all -- had to presume that a man covered in blood standing
over a dead body with a knife in his hand must be considered innocent
pending the outcome of a trial. Clearly he can't be held for that trial unless
he confesses in advance since only guilty persons can be so held without
violating the presumption.
That's the literal interpretation of the presumption. That's why it's
ignored completely. In the first place it doesn't exist and if it did, no law
in this country could ever be enforced.
All this is not to say that there are no grounds whatsoever for believing
that something like it exists, allowing resourceful lawyers to find a peg
on which to hang their wild claims for the "rights" of their clients.
This is the section of the Constitution decreeing that Juries must
disregard any knowledge of a defendant they may have and consider only the facts
of the case before them in arriving at a verdict.
This is where the inspiration for the innocence claim has been found by
generations of slippery lawyers. They've stretched it to the breaking point
ever since then. And they've gotten away with it too. Take note of some
of the reality shows on TV featuring cops actually arresting people caught
in the act of breaking a law and obviously as guilty as sin. At the end of
such shows we're usually confronted with a solemn admonition that the
guilt of the guilty people we've just seen in unlawful action should not in any
case be presumed because they're entitled to, you guessed it, the
presumption of their innocence.
The shysters behind these disclaimers have succeeded in conning the
sponsors of the shows to post these ads which tell people not to believe the
evidence of their own eyes. No wonder so many people think law in this
country is a joke. No wonder Dominick Dunne, the greatest criminal law expert
in America, said "All defense lawyers are liars."
There are responsible lawyers in existence, though. One of them was
Warren Burger, the longest-serving Chief Justice of the Supreme Court whom I
heard in 1969 addressing a meeting of lawyers in Lincoln Center which I was
assigned to cover with a detail of police. He told them just about what I've
been writing here. Cut the nonsense, in other words, and stick to the law
as it actually exists without inventing nonexistent ones.
I'd give Dick Cavett the last word here in recognition of.his clear
thinking, but I'm afraid he's a little too generous to the lawyers who've been
promoting this misinformation so long. He thinks they're just mistaken. I
don't. I think they're deliberately lying.