The Mockery of Justice
Heads We Win. Tails You Lose

by Gregory Bresiger

"The plea of autrefois acquit, for a formal acquittal, is grounded on a universal maxim…that no man is to be brought into jeopardy of his life more than once for the same offense."

William Blackstone, "Commentaries on the Laws of England, IV," page 335

It is a sacred legal principle that goes back at least to the days of the Roman Empire. It is probably as precious to free peoples everywhere is the writ of habeas corpus. It is one of the bulwarks of a free society, yet it is under attack today in the United States. It is designed to protect individuals against tyrannous governments that would use star chamber procedures to punish unpopular defendants. It is "the oppression of a double trial" for the same offense: double jeopardy.¹

Over the centuries, many legal theorists such as Edward Coke and William Blackstone recognized how important the principle of double jeopardy was to freedom under law. Nevertheless, the prohibition of this shameful practice was not enshrined in any of the great documents that came out of the settlements of the Glorious Revolution of 1688. But the men who wrote the United States Constitution were students of Roman law as well as admirers of the Whig victories in 17th century England. And most of them had also read Coke's great "Institutes." So, in the original U.S. constitution, in the Bill of Rights, they spelled out, in clear, unmistakable terms, their belief that multiple trials for the same offense were not allowed.²

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be put twice in jeopardy of life or limb,…" (Fifth Amendment to the United States Constitution).

However, today it is ridiculous to believe that the double jeopardy clause, designed to prevent reckless governments from abusing their prosecutorial powers, applies any more in the United States today. Our original constitution, based on the principles of limited government and on common-law decisions over centuries, is a dead letter. It no longer protects Americans from reckless governments, unscrupulous lawmakers or prosecutors who want to look good in the mass media.

The politically unpopular defendants who beat the state in high profile cases may be immediately tried a second time on "civil rights" charges if the public is sufficiently outraged and if a prosecutor thinks there are lots of votes in getting new indictments against someone. Almost as bad as the use of double jeopardy itself is the capricious, selective way it is threatened and used: Prosecutors will exploit the loophole in the double jeopardy clause, not in every case in which it can get away with violating the Fifth Amendment, but rather it will be used in politically charged prosecutions. Prosecutors will use it to curry favor with some elements of the public when a first indictment has been defeated. The abuse of the double jeopardy clause has already happened in Los Angeles, where former LAPD members were tried on civil rights charges immediately after they were exonerated on substantially the same charges. Now a similar situation is developing in New York City.

In New York a trial is about to begin of four white police officers charged with shooting to death an unarmed West African man, Amadou Diallo, outside his Bronx home. Over recent years, there have been several similar incidents in which white NYC police officers shot a black man. There was even one case in which a white police officer mistakenly shot a black undercover officer. Given the racial elements of this trial and the fear that a fair jury might not be able to be found in Bronx County, a judge recently moved the trial upstate to Albany.³

The case offered through the media, on the surface, seems overwhelmingly against the officers. An unarmed man was shot to death. The officers, ostensibly, appear to have committed a monstrous blunder, discharging dozens of shots and killing someone who they say that they thought was armed. He wasn't.

The Bronx District Attorney would seem to have a very strong case, although appearances can be deceiving, as many trials have proven. However, even before the case began, even before a shred of evidence was entered in court, the U.S. Attorney for the Southern District, Mary Jo White, decided to become involved in the court of public opinion. In a sentiment worthy of Pogo ("Everyone deserves a fair trial before being shot") she said that – if the officers are exonerated – she will likely be filing her own civil rights case against the officers if they are acquitted and if "a review of the evidence supports the need for federal civil rights charges," according to a spokesman.⁴

Does anyone actually believe that Ms. White, in a politically charged post, will make her decision without taking notice of public pressures? That her statements were not designed to soothe the fears of many who are already convinced that the officers are guilty? If the officers win the first trial is it possible that she will find no civil rights violations? Will she also make a statement, for public consumption, saying, "We must follow the law, even if means we were wrong and these officers are innocent."

Lo dudo.

Could this declaration of a potential second front against the officers influence the strategies used by the defense in the first trial? Will it make these defendants more amendable to a plea bargain? Is a trial fair when one knows that a second one for the same charges could be right around the corner?

"It is a rule of law that a man shall not be twice vexed for one and the same cause," wrote one legal commentator in the mid 19th century.⁵ But this double jeopardy protection goes back much further than that. In the Roman Empire, Justinian wrote, "The governor should not permit the same person to be accused of which he had been acquitted."⁶

Even if the New York police officers win, they know that they will likely have to fight the same case a second time. They will have to be "put in jeopardy of life and limb" again – provided they win the first time. They will have to spend twice as much time and money. Their families will go through the ordeal a second time. Will a second trial bankrupt them?

And how long until unpopular defendants will be tried a third or a fourth time? Why put any limit on the number of times that a person can be tried for a crime? While we're at it, why not just give prosecutors the right to try people a limitless number until they get it right? No, that would be probably going too far.

Today.

Nevertheless, the potential power of federal prosecutors to invoke the civil rights laws is a fearful weapon. It is one that should be taken away from even the most moral prosecutor. There seems to be no objective standard for invoking these laws, although public pressure, as we saw in the case of the LAPD officers, seems to be the key element.

Sometimes government lawyers apply this second layer of laws. Sometimes they don't. Sometimes the public – or elements of the public good at presenting their arguments through the mass media – demands that federal prosecutors trigger these laws. Are the prosecutors going by the law or public opinion polls? Like the RICO statutes, whose intent has been frequently distorted by unscrupulous prosecutors, the civil rights laws give the federal government the right to prosecute anyone for almost any criminal violation. Then again, maybe there's nothing special about the civil rights laws. They may just be part of a continuing growth of big, liberty-crushing laws that American elites tell us that we must accept in order to have "law and order" as well as a pc society.

Even a political elite such as Bob Woodward, in his book "Shadow: Five Presidents and the Legacy of Watergate," says "With the law books filled with a great assortment of crimes, a prosecutor finds a fair chance of finding at least a technical violation of some act on the part of almost anyone." (Page 94). And he wasn't even talking about the McMartin case in which a Los Angeles prosecutor filed a thousand count indictment against the family owners of a day care center, wrecked their business, their lives, kept them in jail for years, then a court and a jury dismissed every single count! When I was ballplayer I heard of slumps, but zero for one thousand? Big government is not only reckless, it's downright incompetent.

Still, the use of civil rights prosecutions – and the use of the special independent prosecutor who has no limitations on how long he can go after someone – makes a mockery of the Der Rechtsstaat, the great principle of German legal theorists such as Immanuel Kant and Rudolph von Gneist.⁷ They held that government must be subject to law, that it must be answerable to a code of objective rules.

Without these restraints, governments become lawless. They act arbitrarily. Law becomes politicized. It mutates into something the lawmakers insist that only the citizen obeys. I remember how Congress, for several years, said that citizens must follow the civil rights laws, but it exempted itself from these same laws in its hiring practices. Members of Congress, along with imperial presidents, held themselves above the law. (It was James Madison who, in Federalist 57, wrote that the "House of Representatives…can make no law which will not have its full operation on themselves and their friends, as well as the great mass of society.") Law becomes something that can be distorted for political purposes.

Hans Kelsen, a German legal professor, who in the 1920s and 30s helped pave the way for European totalitarianism, would say that there are "no so-called fundamental liberties" and that the Reechsstaat, with its emphasis on governments obeying formal rules represents "nothing but the naiveté and presumption of natural law thinking."⁸ It is a roadblock to democratic government, he complained. Kelsen, in his book, "What is Justice," says that "questions of justice cannot be answered by means of rational cognition."⁹

What are legal protections such as due process, equal protection under law and double jeopardy to people holding these statist philosophies? They are merely annoyances that can be pushed aside once public opinion and the election returns are on their side. But these legal positivists are playing with fire, just as Kelsen's dangerous doctrines surely led to consequences – Hitler – that he never intended. They are playing to the mob. "Men, it has been well said, think in herds; it will be seen that they go mad in herds, while they only recover their senses slowly, and one by one."¹⁰

This ends justifies any means philosophy, this any bending of the rules is acceptable provided there is popular support for the measure is the philosophy that guides so much of our lawmaking today. It is what our government – especially our lawless federal government – has become today. The government is illegitimate. It has lost the support of much of the governed. Not only do more and more citizens understand that today (which is one reason why the majority of the registered voters didn't vote in the last presidential election), but this hostility to Washington also affects even lower levels of government, which are often contemptuous of the central government.

Since the federal government can, in effect, nullify the legal decision of state courts by negating their actions though successful civil rights prosecutions, it also makes a mockery of our increasingly irrelevant tenth amendment, which holds that "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." And since these prosecutions result in a special class of defendants – those who have to face twice as many charges to retain their freedom – it would appear that these abominable laws also violate Section 1 of the 14th Amendment, which guarantees that the state will provide "the equal protection of the laws."

It seems clear to me that the constitution says, in several places, that the state has one shot to convict a defendant of a charge and, regardless of the state's incompetence or competence in presenting a case, one bullet is all it has.(Mistrials obviously don't count) Let us say, just for argument's sake, that O.J. Simpson was guilty, but the state blundered in its presentation of the case so it never came close to meeting the objective standards for convicting a defendant of murder. Does that mean the rules of law – which in free a society must be binding on the state as well as individuals – should have been suspended? Maybe O.J., after this long trial, should have been tried for the same criminal charges using a new set of laws invented especially for the occasion. I propose these laws should be called the "Goldstein laws," the name of Big Brother's imaginary enemy in the novel 1984.

When one sanctions evil methods used by the state even just once, then there is no containing the cancer of lawless government, a cancer that has been growing in our society at least since the Lincoln presidency. That's a time when one of our most popular presidents violated the most basic ideas of government under law. In possibly, the most outrageous case of this sorry period, Lincoln – even though he was clearly uncomfortable with the practice – actually authorized military commanders to try civilians in regions of the North that were not in any danger and where the civil courts were open and functioning.¹¹ For those Lincoln eulogizers – such as David Donald who doesn't even mention the famous Ex-parte Milligan in his recent Lincoln biography, it is important to remember that the Supreme Court later upheld the courageous Lambdin Milligan,¹² who had been scheduled to be hanged for his opposition to Lincoln's wartime destruction of civil liberties. Yet, reading Lincoln biographers, one would hardly know that Lincoln had ever broken the law or defied the Supreme Court or upheld military commanders who acted like Cromwell.

Lincoln lamentable heritage is with us to this day. We see the fruits of this lawless government daily in the myriad ways our federal government violates the constitution its officers claim to uphold. We see it in the way presidents have ignored the war declaration powers that are supposed to be the exclusive preserve of Congress. We see it in state attorney generals who use taxpayer dollar to persecute deep pockets butt makers – not cigar makers, they're not as rich – for ex posto facto crimes (That's also prohibited under our original constitution.). We see it in the way governments everywhere go after an unpopular industry such as the gun makers. (Are the booze boys next? Which industry is after that? It is doubtful that any government will stop once the habit of stealing property is allowed). We see it in the anti-civil libertarian war on drugs and in hundreds of other outrages that are an insult to the concept of government under law.

If the tyranny of the civil rights laws isn't ended soon, then it will not matter whether the prosecution wins or not. Trials of unpopular defendants will become a joke. In the play The Winslow Boy, a child, unjustly accused of stealing at his school, goes through years of trials as his family makes many sacrifices to prove his innocence. At the end of play, he is cleared. His middle-class family is nearly bankrupted. The author questioned whether justice is accomplished when a defendant is mentally and financially exhausted by the process of clearing himself or herself.

That was a play about Edwardian England. But today, because of the specter of these civil rights laws, the danger is the same. Just the process of putting defendants through repeated trials will be enough to wreck a person's life. No, putting a stop to these kinds of prosecutions won't return our country to its original principles of limited government. But it's a good start. Liberty will be a little safer with one course of action: End the civil rights laws.

References

1. Those are the words of a Pennsylvania court in 1788. See Double Jeopardy. The Development of a Legal and Social Policy by Jay A. Sigler, p25, (Ithaca, Cornell University Press, 1969)
2. Sigler, pp21-23.
3. New York Times, December 18, 1999
4. New York Post, December 18, 1999
5. See A Selection of Legal Maxims, by Herbert Broom, p106, (Philadelphia, T&J.W. Johnson, 1845)
6. Sigler, p2.
7. See The History of European Liberalism, by Guido de Ruggiero (Boston, Beacon Press, 1959) pp 251-64 for a description of this idea of government under law. Also see F.A. Hayek's Constitution of Liberty, (University of Chicago Press, pp193-205)
8. See Hayek, p238
9. See the essay "The Concept of Law," in Vol III of The Dictionary of the History of Ideas, p2, (Charles Scribner's Sons, New York, 1973)
10. From Popular Delusions and the Madness of Crowds, page XX, (New York, Harmony Books, New York). Also see the inscription page by Millot: "Il est bon de connaitre les delires de l'espirit humaine. Chaque pueple a ses folies plus au moins grossieres.
11. See Milligan's Fight Against Lincoln, by Darwin Kelley. (New York, Exposition Press, 1973)
12. Ibid, p101, Judge David Davis, in an 1866 Supreme Court decision, said that "Martial rule can never exist where the courts are open and in the proper and unobstructed exercise of their jurisdiction."

December 22, 1999

Gregory Bresiger is a business writer and editor living in New York. He works for Financial Planning and Traders magazines among others.