Stephen W. Browne | Rants and Raves

CAT | Law

Jul/11

8

Do we need a Scotch verdict?

Note: Cross-posted at “Steve’s Place” at the Marshall Independent.

“It is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent one to death.” Moses Maimonides (1135-1204,) Sefer Hamitzvot [Book of the Commandments]

Well the trial of Casey Anthony is over, and almost nobody is happy about it. Apparently nobody really believes she is innocent of murdering her little girl, not even her parents to judge by their actions.

This is not the same thing as the story of Casey Anthony being over of course. The news hounds will be following her around for quite some time now you may be sure. There are already rumbles of civil cases being filed, attempts to keep her from profiting from the inevitable tabloid and movie deals, etc.

From the statements of two of the jurors, it seems they didn’t really want to return a verdict of “not guilty” but didn’t feel they had the right to convict based on the evidence presented. Some contend they were just too chicken to rule on a death penalty case with only circumstantial evidence of guilt, however compelling. But then again, they weren’t in that jury box.

Others speculate about the hypothetical “CSI effect,” the notion that crime shows like CSI and its spin-offs have created unrealistic expectations about the power of forensic science to establish guilt beyond not just reasonable doubt, but all doubt.

I will just note it’s entirely possible to believe whole-heartedly that a person is guilty, and still not be able to vote guilty in good conscience. One of the more bizarre and uncomfortable experiences in my life was overhearing a man tell another how he murdered a friend at age 16, while they were out hunting together. I realized with horror that of course, with no witnesses to dispute this psychopath’s claim it was a hunting accident there was no way the jury could rightfully convict under our legal system’s rules of evidence. Hunting accidents do happen, and there was no arguable motive other than “he’s nuts.”

An acquitted criminal may admit their crime later – but there’s that double jeopardy thing in our Constitution.

I’m as uncomfortable as anyone else about the Anthony verdict – but I’m also glad our system takes Rabbi Moseh ben Maimon’s above-quoted commentary on the commandments seriously.

What I’m wondering now is, what if we had that legal option from Scottish law, the so-called “Scotch verdict”?

Scottish law has significant differences from English law in some cases. Under the laws of Scotland there are not two, but three possible verdicts in criminal cases. A legal precedent going back to at least 1728 provides for one verdict for conviction, and two for acquittal: not guilty, and not proven.

“Not proven” basically means the jury thinks the prosecution has not met the burden of proof, but they have strong doubts about the innocence of the accused. I don’t believe the option is used often and there is no difference in the outcome of the trial, the accused goes free.

As a practical matter, a number of not guilty verdicts are essentially informal Scotch verdicts, as in the Anthony case. I just wonder, what would happen if a jury were given the choice of making it official?

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Feb/10

26

The Other War

If you’ll look here you’ll find Ollie North’s article on the narco wars south of the Rio Grande.

North warns, rightly I think, of the violence in Mexico related to drug gangs, spreading murder and kidnapping to the U.S.

But… how the hell can anyone fail to see the parallel between drug prohibition and our earlier disastrous attempt at alcohol prohibition? Though I wasn’t alive then, I have lived in a country with prohibition, Saudi Arabia. It’s not quite Chicago during the Al Capone years…

The relevant section:

“The Obama administration seems to be of two minds about what needs to be done about the problem. To its credit, it has continued to fund and even expand the Bush administration’s Merida Initiative, aimed at improving Mexico’s internal police and security services with $1.6 billion in training and equipment. Unfortunately, Obama administration officials also speak routinely about “reforming U.S. drug laws,” suggesting that having “user amounts” of illicit narcotics would no longer be a criminal offense. How that would reduce the demand for drugs in America is hard to fathom.”

This is the comment I left:

Economics

“How that would reduce the demand for drugs in America is hard to fathom.”

The point is not to reduce demand for drugs, that’s almost certainly what free-market economists call an “inelastic demand.”

The point is to lower the price, and as distasteful as it sounds, put the drugs in the legitimate market to deny the profits to the gangs.

It is unfathomable to me how Americans failed to learn the lessons of Prohibition, or somehow think they only apply to alcohol.

And how conservatives’ passion for liberty fails when something touches a raw nerve.

“The free man owns himself. He can damage himself with either eating or drinking; he can ruin himself with gambling. If he does he is certainly a damn fool, and he might possibly be a damned soul; but if he may not, he is not a free man any more than a dog.”

G.K. Chesterton

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Sep/07

18

Right versus Left, versus Right versus Right

Note: I recently got to cover the press conference with General Petraeus and Ambassador Crocker, and wrote about it for Human Events here: http://www.humanevents.com/article.php?id=22371

The post-Petraeus report period is a great example of how hard it is to have a serious discussion about something as important as a war, when one or both sides have made up their minds beforehand and won’t be budged.

It’s also a pretty good example of how hard it is to have a serious discussion with a bunch of screaming loonies in pink tutus and tiaras in the room.

The differences between the Hard Left and the Right are exciting and attractive to a news media that thrives on sensationalism.

One the one side you have people who see America as a corrupt country, fatally flawed from it’s origins.

On the other, people who see America as a great country with serious flaws – not the least of which is the presence of privileged elites who despise the country that made them some of the most fortunate individuals in the history of mankind by any objective standard.

What’s getting lost in all the excitement, is the debate between the supporters and opponents of the attempted pacification of Iraq on the conservative and libertarian Right.

I refuse to call these positions “pro-war” and “anti-war.” Nobody but a Nietchean lunatic is “for” war. The question is, is war at this time and place the worst alternative?

And here we see where the two sides stand, for reasons both principled and patriotic.

One side argues that Iraq has become the primary battleground of the West against jihadism.

From this point of view, even if it is conceded that invading and trying to rebuild Iraq along Western lines was a mistake, the argument is irrelevant. Rather like arguing that it would have been better to have invaded Europe at Calais, rather than Normandy in the Second World War. One the di is cast, we don’t get do-overs.

The opposing view on the Right can be summarized, that we are not contributing to our future security by spending our treasure and the lives of our finest young men, attempting (in the words of an English friend) “to civilize people who cannot be civilized.”

Unlike the America-hating Left, this view comes from love of this country and the civilization of which it is the finest exemplar.

And it’s not that I necessarily think they are wrong – it’s that I am terribly afraid that they might be right. If so, God help us all. Then this war will go on with no end in sight.

I wonder how many of them have considered that this must follow from their position, if indeed they are right?

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What did the Amish do to deserve what happened to their children this week?

Now if you thought that I meant that in anything but a rhetorical sense you’d condemn me as a moral monster- and you’d be right.

The Amish are one of America’s so-called “peculiar peoples” i.e. unassimilated minority cultures that have settled among us. Others include the Hutterites, Gypsies and perhaps Cajuns. One might have included Mormons at one time, though they are now pretty much part of the mainstream in America. After all, what’s another new religion in this country?

Amish live amongst us, not entirely separate but keeping to themselves in terms of worship, socializing and marriage. They do business in the mainstream economy, very well in fact. They never bought into the trap of agricultural subsidies and cash monocropping and so they don’t seem so vulnerable to agricultural price fluctuations. They eschew modern technology, but not as much as people think. (For example they often keep cellphones for business purposes, usually in an outbuilding – which sometimes sounds like a good idea to me.) They are quite reasonable as concerns legal requirements that their buggies have electric lights for night driving and their requests (you can’t say “demand” with the Amish) to be exempted from the common laws concerning education and social security taxes can be accommodated easily without burdening the majority culture – quite the contrary.

As odd as their ways are to us, nobody I know of ever said that they were anything but the best of neighbors. So what did that bastard have against these good people, and why did he kill five of their little girls?

As to motive, I have speculations I’ll go into later, but short answer: nothing, and because he could.

He picked the Amish because they were “soft targets”, pacifists.

An extreme doctrine tends to attract well, extremes. Pacifists in my experience, tend to be either cowards – or the extremely brave. Quakers for example, refuse to serve in the combat arms of the military but have a tradition of serving as medics and stretcher bearers – a job much more dangerous than being an infantryman if you think about it. A man with a stretcher has to go where the shooting is with nothing to shoot back with, and can’t crawl and take cover when he is carrying a wounded man.

It is also known that Quakers are “practical pacifists”, i.e. that they can be pushed too far. I’ve been told that the Quaker saying goes, “I would not harm thee for all the world friend, but thou standest where I am about to shoot.”

Can you imagine anything more terrifying that a pacifist who has been pushed to violence? Because by the time he has exhausted every non-violent alternative, he has eaten a lot of s#%t and is really pissed-off!

This is a far different breed than the pacifist who seems to be loudly advertising to the world, “Don’t hurt me, I’m not a threat!” You can tell this kind by their hypocrisy. They won’t fight you, but they’ll sue you. (Using the power of the law for compulsion without dirtying their own hands.) They are the kind that favor all kinds of social legislation, backed by the power of the state to “do good”, without considering that all law is enforced with the threat of violence. All law, without exception. A true, consistent pacifist must necessarily be an anarchist. (Though of course, not all anarchists are pacifists.)

There are variations of course. One of them is Pacifism as a Way (Do, Tao in some Asian languages). This is a decision made by one who does not deny the necessity for violence on some occasions, but has made the personal choice to seek peace through friendly persuasion and renouncing the use of force even at the cost of his own life. It’s interesting to note how many of this kind have been soldiers at some time in their lives. Gautama the Buddha (born into the warrior caste), Ashoka the Conqueror (who had a “What have I done?” moment on the battlefield and devoted the rest of his reign to spreading Buddhism) and St. Francis of Assisi (called by some, “history’s only practicing Christian”).

I don’t know what the exact position of the Amish is, but I note that at this terrible time they’ve found some compassion within themselves for the wife and children of their children’s murderer. I cannot express how much I admire that – I don’t think I could do it.

It reminds me of an interview I once saw with the mother of one of Ted Bundy’s victims. The interviewer asked her if she had any thoughts about Bundy’s parents. She said, “I’d rather have my daughter than their son.” Or Corazon Aquino when asked how she felt about Ferdinand Marcos, i.e. how she felt about the man who ordered her husband’s murder. She looked very thoughtful and said, “Somewhere on the road to becoming a great man, Marcos took a wrong turn.”

Now having said that, I also wonder how much the Amish realize that the United States is one of the very few places in the world where they could live the way they do? (I suspect they do, they’re definitely not stupid.) They can live a pacifist lifestyle because they live in the midst of a benevolent, tolerant and free people who are not pacifists. Note that the way they immediately dealt with the situation was to call the police.

What am I getting at here? I’ll have more to say about it, but it comes down to this; a great many people in this rich, happy country of ours think that if somebody hates you, it has to be something you did to them. (Or something your group did.) Repeat after me, does-not-follow. (Or, non sequitur, if you want the Latin name for that logical fallacy.) They cannot imagine that someone could hate you enough to kill you, not for what you did, but for what you are and what you have.

Sometimes it’s your wealth, but more often what you have that they hate you for is something they could destroy but cannot steal, your happiness.

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Speculations on motive.

Firstly, let me note that attributions of motive, a favorite arguing tactic of the Left, are always speculative. True motive is the one thing we cannot know, since it resides in peoples’ heads, is most often complex and mixed, and is one of the things people are least likely to be honest about. To be credible, speculation of motive must be introspective and ruthlessly honest. That is, you have to take the position of, “I think this may be the motive because I can look inside myself and see it makes sense.” This can be terrifying.

So what the hell is going through the head of someone who kills a lot of people at random and then himself? I suspect that you might have someone with a lot of rage who thinks (probably correctly) that if he died nobody would notice or care. “Ah-ha, but I can make them care.”

There is a story that King Herod once asked his advisers how he could ensure universal mourning in Israel when he died. All but one said, “Oh great King, all will mourn when you die!” But one brave man said, “Order that at your death, Rabbi Hillel’s throat is to be cut.” Same logic.

What about his guy? He had a wife and two kids. And if initial accounts are to be believed, they were as surprised and shocked as anyone. He left a note saying he had molested two young relatives 20 years earlier, but the relatives said they don’t remember any such thing. Huh? What’s going on?

My guess is that this guy was plagued by desires and fantasies of sexually molesting young girls. Desires he could neither suppress nor live with. Finally, I think he decided that he wanted to act them out even if he died. Preliminary reports indicate that he came prepared to rape as well as kill but was interrupted before he could carry out his plan. He killed himself out of self-loathing, he killed his victims as a projection of his self-hatred.

At any rate, that’s my five-cent psychiatric evaluation.

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