Justice for Trayvon? Or George Zimmernan?

The days since the acquittal of George Zimmerman have been difficult for all of us.  Wounds that we thought had healed have been ripped open.  There have been marches and demonstrations demanding “justice.”  Even the President of the United States joined the fray by saying that thirty-five years ago he “could have been Trayvon Martin,” and went on to chastise non-black America for being fearful of young, black males.

Something seems wrong, but we can’t quite figure it out.

The answer, of course, is that we don’t know whether George Zimmerman is innocent or guilty.  He may very well be guilty.  He may be a murderer.  If you add up all the evidence, perhaps the weight of the evidence even shows he IS guilty.  Maybe even the vast majority of the evidence.  But that is NOT the standard by which we measure guilt in this country.  While Reverend Sharpton and his ilk may stir the pot of racial discord over the acquittal of George Zimmerman, the reality is that the failure to convict Mr. Zimmerman occurred for the same reason the prosecution failed to convict Casey Anthony or O.J. Simpson – it failed to prove its case beyond and to the exclusion of every reasonable doubt.

The United States adopted the Blackstone formulation, a concept that was expressed by the jurist William Blackstone in “Commentaries on the Laws of England” published in the 1760s.  He stated that “It is better that ten guilty persons escape than that one innocent suffer.”  Benjamin Franklin apparently thought that even more protection of the innocent was necessary, writing in his 1785 letter to Benjamin Vaughn that “it is better 100 guilty Persons should escape than that one innocent Person should suffer.”  The number is not important, it is the concept: as a society, we accept that some of the guilty shall escape punishment so that we do not inadvertently convict the innocent.

So much for “justice” for Trayvon Martin.  There is no further “justice” to be done.  Maybe George Zimmerman is, in fact, innocent.  There was enough “reasonable doubt” to acquit.

It is, indeed, unfortunate that some political radicals look for opportunities to turn circumstances into opportunities to create, rather than heal, racial tensions.

President Obama’s “I could have been Trayvon” raises an interesting issue that he left unanswered.  He stated “there are very few African-American men who haven't had the experience of walking across the street and hearing the locks click on the doors of cars.”  Of course, almost one in three young black men in the age group 20-29 is under criminal justice supervision on any given day according to “Young Black Americans and the Criminal Justice System: Five Years Later” by Marc Mauer and Tracy Huling.  While our criminal justice system may be disproportionately targeting blacks or “crimes” committed by blacks, clicking the lock on a car door seems a logical and rational action in any high crime area.  Perhaps that young man walking on the street is going to be the next President of the United States.  But if there is a 32.2% possibility he is under criminal justice supervision, lock the door whether he is black, white, or rainbow-colored.

Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety.

“Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety.”

Benjamin Franklin wrote these words back in 1759 in An Historical Review of the Constitution and Government of Pennsylvania, but they have become the refrain of Libertarians during the Spring of 2013.  The song began in May with allegations that the Executive Branch used the Internal Revenue Service for political purposes.  Before that story even had time to fully ferment, the United States Supreme Court jumped into the fray with its decision in Maryland v. King, giving conservative Justice Antonin Scalia the unusual opportunity to write a scathing dissent that was joined by three liberal justices declaring that the majority’s logic upholding DNA testing of arrested detainees “taxes the credulity of the credulous.”  The first words of his opinion of June 3, 2013, portended the remainder of the week’s events:

“The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence. That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment. Whenever this Court has allowed a suspicionless search, it has insisted upon a justifying motive apart from the investigation of crime.”

Two days later, on June 5, 2013, The Guardian reported that the National Security Administration was collecting millions of call records from Verizon Wireless.  By the end of the week, we were being told that the FBI and the NSA were sucking down a lot more than just phone records and, in fact, had direct links with Facebook, Google, Yahoo, and many Internet Service Providers.  Within another week, the scandal had spread across the pond to England where allegations were being leveled against British intelligence for tying into the U.S. system in order to obtain information about British citizens. 

Meanwhile, whistle-blower Edward Snowden is running for his proverbial (if not literal) life somewhere in Hong Kong.

Denial of liberties in the name of security creates unlikely alliances.   President Obama and Senate Intelligence Committee Chair Dianne Feinstein have been joined by none other than Republican ex-rival Senator John McCain and Texas Republican House Member Michael McCaul.  Quickly ducking for cover, on the other hand, is the author of the USA PATRIOT Act, Jim Sensenbrenner and scores of Democrats (as well as many Republicans) who voted for the USA PATRIOT Act or its extensions, renewals, and/or reauthorizations.  Politics can be very fickle when the winds of change are blowing.

Justice Scalia may not have had Benjamin Franklin’s words in mind when he wrote his dissent, but the meaning of Mr. Franklin's words ring true in Justice Scalia's dissent:  “Today’s judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the “identity” of the flying public), applies for a driver’s license, or attends a public school. Perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.”

Or to have their communications tracked and saved by the crown.

The Patriot Act Bites Back.

In the wake of the worst attack on American soil since Pearl Harbor, Congress rushed to pass the so-called "PATRIOT Act," authored by Rep. Sensenbrenner as H.R. 3162, it was introduced on October 23, 2001, passed the House on October 24, 2001, with overwhelming support, passed the Senate on October 25, 2001, with only a single dissent, and was signed into law by President Bush on October 26, 2001, with an immediate effective date.

You haven't read it yet?  Don't feel too badly.  I'm pretty sure almost none of the Representatives or Senators read it, either.  How could they have?  Here is a link to its text:

http://www.gpo.gov/fdsys/pkg/PLAW-107publ56/pdf/PLAW-107publ56.pdf

Now, I'm a lawyer.  Reading and deciphering this type of thing is my thing, but this document is 132 pages of insertions, deletions, cross-references, changes.  Let's be realistic about this.  Not only did your Congressman/Congresswoman not read it in the 24 hours between when it was introduced and when the vote was taken, your Senator didn't read it either. 

So why did almost everyone vote for it?  It was political suicide to vote against this bill no matter what it said.  Congress could have written that we had to make copies of our house keys and turn them in to the local police station.  "Trust us.  If you aren't a criminal, you will have nothing to worry about."  So goes the refrain today, so went the refrain 12 years ago.  We won't investigate you unless we find a link between you and a criminal, but if we find a link, we need to act quickly.  Like lemmings, large groups of people will start following one another notwithstanding what (with hindsight) is an obvious danger ahead.  Logic, reasoning, and plain common sense fall away to our basic survival instinct.  Under attack, we struck back offensively within 30 days with Operating Enduring Freedom (at a cost of over $150b and over 2,000 US casualties).  The USA PATRIOT Act was our defensive countermeasure.

Twelve years later, after renewals, extensions, and reauthorizations, the resolve borne of panic and mass delusion (maybe Saddam didn't really have those weapons after all) has given way to the reality that this is, after all, America -- the "Land of the Free."  Maybe we really don't want to give one branch of government -- our Executive Branch -- unbridled authority to intrude into our personal lives (as boring and innocuous as they, undoubtedly, are) looking for a reason to arrest us, harass us, cajole us, or turn on or turn in our neighbors.  Our Founding Fathers knew this was a recipe for trouble.  Those of us old enough to live through the McCarthy years know why first hand.  Those of us who lived through the Civil Rights era and Watergate learned to distrust an unchecked Executive Branch.  We learned the mantra "Power Corrupts.  Absolute Power Corrupts Absolutely."

The Patriot Act was bad law when it was enacted.  It is bad law now.  Just because you don't have anything in the trunk of your car does NOT mean you should agree to open it up to when the police officer asks you if it is ok to look in your trunk.  Just because you are a law abiding citizen does NOT mean you should let the FBI or the NSA or the local police through your front door when they ask if they can come in without a warrant.  And just because you aren't doing anything "wrong" does NOT mean you should agree, explicitly or tacitly, to allow the Executive Branch and their spy agencies to go through your phone records, listen to your calls, go through your Internet search results, study your web browsing habits, and look at your stored files on Apple, DropBox, Google, or wherever.

What we've learned in the past few days is just the tip of the iceberg of what is going on.  As voters, we elected the Representatives and Senators who invited them into our electronic lives.  The time has come to politely invite them out.  If our representatives won't do it, we should invite our representatives out.

And, just maybe, we will be a little bit more careful next time.  Because there always is a next time.  Freedom is worth a "next time."  It is that risk that we all make -- a sacrifice that we all make -- for maintaining our collective freedom.  If we don't, we haven't won anything at all.