Wednesday, October 30, 1940

FOUR EDITORIALS

Site Ed. Note: "Avoidable" is almost certainly not by Cash. He was opposed to the death penalty, distrusted with a passion the field of psychiatry (see "Psychoquackery", book-page editorial of January 3, 1937), and certainly would never have counseled "keeping an eye" on someone from childhood onward. But we include the editorial here because of current events, always seemingly ever with us, involving the murder of children. It is a despicable business obviously. But the fact of the matter is that psychiatry, psychotropic drugs, and other such Orwellian alternatives to the simplest cure in the world for these maladies, that of teaching parents how to be better parents, have not worked, will never work, and in fact will only breed more of the same, especially the more we have to be confronted on tv with understandably emotional parents wanting to publicly chop the heads off of the accused perpetrator, in fact encouraging vigilanteism to prevent such acts before they happen, even while giving lip service to the jury system.

When the President says, as he did recently, that an accused child murderer is guilty within days of his arrest, when the police assert on national tv that they are 90% sure that the captured suspect is guilty, then we have a problem of monumental proportions. For what if the accused is not guilty? Since when did we return to the lynch mob mentality of the Old South and the old West?

Our own experience tells us that judges, prosecutors and defense attorneys most often do a splendid job of shielding themselves from such nonsense as surrounds notorious cases in the media and try their best to maintain one of the keystones of our democracy and the only means of direct democracy, short of voting, the jury trial. But the public is another thing. The police and the politicians are sometimes yet another thing also. And it is the public, hearing irresponsible pronouncements of guilt prior to trial of an accused by either the police, politicians, or both, which will lead the public informally to make irresponsible decisions on the guilt or innocence of an accused in a heavily publicized case, and usually, the result of media portrayals foisted for ratings, with the thumb toward the Nether. And it is members of that public ultimately who will sit on a jury, maybe not the jury of the particular case in question, but some jury sometime, somewhere. And it may be one of us or a relative or a friend of ours in the seat of the accused, whether of some alleged criminal offense or civil wrong. We all want fairness, a fair shake, an open mind on the part of each of those jurors. And how do we get that with a public predisposed by yellow journalistic tactics, nay, brainwashed, to believe most cynically that the accused is guilty, his or her attorney is a hired gun to slickly get the accused off and therefore to be ignored from the start, and that the accusation wouldn't have been brought in the first place were it not for the guilt of the accused?

Our hearts go out to the parents of the victim in all such cases. We really cannot appreciate the pain endured. And we want the actual perpetrator to be caught and vigorously prosecuted for any heinous crime. But, we must also maintain our heads, not be swayed by emotion, and insure that our system of jurisprudence is preserved. And even more so when the crime is particularly heinous, or when the defendant is particularly unsavory, or seems so. Otherwise, we are truly no better than the societies which lynch the unpopular, from the Romans forward. And it will ultimately lead to a society in chaos, one either prone to actual vigilante tactics or, equally bad, the equivalent of martial law.

Simply put, and it is stated as an obvious truth but one which serves us well constantly to remind ourselves and others about, that the keystone of this keystone is that it is an adversarial process of truth finding, this thing called a jury trial. There is a prosecutor who presents the case first. The reason the prosecutor goes first is because they are alleging the charge and therefore have the burden of proof to show each element of the crime charged as well as that this accused defendant committed each element of the crime charged. No less is the case with a civil matter where a private party or the government brings a civil claim, the only difference being that in a civil case, the burden of proof is lower than in a criminal case. In the civil case it is usually that the preponderance of evidence must show the elements of liability and damages, that is to say it is more likely than not that the defendant committed each element of the claimed cause of action and that there are actual damages to the aggrieved party proximately caused by the wrong. In the criminal case, we have a much higher standard because of the fact that we do not want as a society to jail or imprison or otherwise cast doubt on the character of those who have not broken the law of which they are accused of breaking. They may be unpopular, even hated and despised, have a prior record of conviction for serious felonies, but inevitably they have lives, too. And if they have committed no offense for which the proof is marshaled in the particular instance at hand, they must be set free and allowed then to live their lives in peace without unusual suspicion. There is no other acceptable premise for a sound, mentally healthy society. Short of that, the actually guilty remain at large, likely to become unchecked predators again.

In 1970, Richard Nixon pronounced Charles Manson guilty during his trial. It was front page news in most newspapers and Nixon was properly criticized by the media for having potentially compromised Manson's rights. The anarchist among us would say, "Who cares? Manson was guilty. Nixon was right. Why should we waste our tax money affording a trial to such an unmitigated louse as that?" But the thoughtful person, the person who cares about our democracy will have another approach and realize that everyone from yourself to Manson is a human being entitled to the same justice before our system of jurisprudence. And for that system to work in its own time-honored and constitutionally determined manner without interference of sentiment or prejudice, we need pools of jurors whose minds are free of preceding media outbursts by pols seeking votes from the soft-headed, or anarchists with chips on their shoulders about the government generally, or cynics, or starry-eyed goody-goodies who think that the world is their perfect little kingdoms and queendoms where nothing ever should go awry such that when it does they must reach for some new solution, a controlling drug, a law, a directive, no matter how absurd or potentially destructive to freedom the proposed solution is.

The fact is, taking the present case we have in mind here in July, 2002, we only know one thing, just as the police and prosecutors only know that same one thing, that a horrible act has taken place and a young child is dead. We do not know who did it, as we were not present. If you know who did it, then you are probably guilty of the act. We may never truly know who did it. But of course our criminal justice system does not presuppose the need to know in the absolute sense of that term because true knowledge is had about few things in life. And so in courtrooms, we do not sit in judgment of people. We sit in judgment of allegations of bad acts by people, based on the presentation of evidence, competent refutation of that evidence by those qualified to do so, and finally the deliberate and hopefully conscientious judgment of twelve citizens, good and true.

And what we are asked to do varies by role assigned within that adversarial process. Prosecutors are asked to use their training and experience, take the evidence gathered by the police and assess it to see preliminarily if it appears probable that the defendant committed a particular crime and if so what that crime is. Then a charge is filed by way of an Information. Or, in more politically sensitive, particularly complicated, or close cases on the facts, the prosecutor will ask a Grand Jury to indict a defendant for particular crimes. In neither of those processes typically does the accused or his counsel have input--and for obvious reasons. Once the charges are filed, the defendant is entitled in felony cases to a preliminary finding before a judge or magistrate to determine whether it is "reasonably probable" that the crime charged by the prosecutor has been committed and that it is "reasonably probable" that the accused committed the offense. If the charge is brought by indictment of a Grand Jury, the preliminary hearing is not constitutionally required though often it proceeds anyway. That determination, either at the Grand Jury or in a preliminary hearing, is made usually without regard to the defenses the defendant might have, such as alibis, evidence rebutting the evidence of the prosecution evidence, the credibility of the prosecution witnesses, whether all of the evidence was legally obtained by the police in reasonable searches, and the like.

Indeed, the defendant rarely puts on evidence during this preliminary phase, is not permitted to at a Grand Jury, and it is usually deemed bad strategy to do so at this early stage for the simple reason that the judge or magistrate is not sitting in that phase to weigh competing evidence but rather simply to determine whether there is any competent, credible evidence supporting each element of the alleged offense and connecting this accused to each element. Thus it would be pointless to present the defense evidence at that juncture in any event.

If the preliminary determination is made and the defendant held to answer for the charge, the defendant has a trial date set and then either, in the rarest case, throws himself or herself to the mercy of the court and pleads guilty, or more probably seeks a plea bargain, or stands trial.

And we should note for those who ask why judges and prosecutors participate in plea bargaining--because they know the defense attorney, because they are Shylocks? Of course not. If every case were tried before a judge or jury, the American jurisprudential system would break down and no one would get justice, neither victim nor accused. It takes time and expense to prepare for and present a trial either for the prosecution or the defense. Those who want to do it and can do it well are few in number within the legal profession. It is definitely not "Hill Street Blues" or some other rot on television where an impassioned, dramatic plea, one dreamed up by an idiotic, weepy-eyed self-serving tv script writer, to the judge or the jury sways the day. Doesn't work that way in reality. The reality is that when a case is likely to proceed to trial, a defense attorney or prosecutor breathes, sleeps, and dines on the case, no matter how small. The attorneys are charged with ethical responsibilities to defend or prosecute, and most take those responsibilities, the responsibilities to other human beings, quite seriously. There are no back-room deals which by design are meant to subvert jurisprudence; to the contrary.

But in that rare case, about six in a hundred or fewer, the defendant desires a trial. And in virtually every such case the reason is that he or she proclaims to the world and to their attorney their innocence. Is it the defense counsel's role to ask whether the defendant is guilty and then act accordingly? Of course not. If asked, would the usual defendant who is proclaiming innocence from the start say that he is guilty simply for being asked? The question is leading for it presumes the answer. Concomitantly, is it the prosecutor's role to ask the victim whether they believe the defendant guilty, and if so, act accordingly? Of course not. The prosecutor's role is simply as stated, first to make an objective determination as to whether there is sufficient evidence to support each and every element of a crime and then whether that evidence probably implicates this defendant, then to present that evidence at trial. It is the defense role zealously to contest that evidence whether through other physical evidence, witnesses, the defendant or through cross-examination of prosecution witnesses.

Long ago, in Great Britain, trial by ordeal was a way of ascertaining truth. If the person floated in the pond, the devil held them and they were guilty. If they sank, they were human and innocent. We no longer view that as rational. We cross-examine witnesses to try to reach the truth. Anyone who is a skilled liar and used to lying can narrate a cock 'n' bull story and may be very convincing to both skilled police and prosecutors. Hence, trial, not ordeal, not by media scrutiny, but by that time-honored form of adversarial truth seeking, is the only acceptable counter-balance. It is not so easy to make the cock 'n' bull appear truthful when confronting a jury, judge and the accused in the face of questions requiring spontaneous answers to determine logical and factual consistency to those claimed facts in the non-confrontational narration given a police officer or district attorney. Of amateur actors and actresses, unfortunately, society has had a bountiful plenty throughout its history. And some are very good at it. Yes, the police and prosecutors sometimes ask tough questions of the accuser. But not always and usually not in the manner that the defense attorney will. And, incidentally, no one who accuses defense attorneys of asking "trick questions" in the courtroom, where the prosecutor has full reign to object to any question propounded improperly or beyond the pale of permissible rules of evidence, seems ever to find a problem with trick questions and methods sometimes used at the police station to question the accused, without an attorney and without the benefit of a judge to rule on the propriety of the question, and without the constraint of evidentiary rules developed over centuries of Anglo-Saxon jurisprudence.

All that said, the editorial below is about a confessed murderer, one already tried, convicted, and sentenced, and so is fair comment, even if we would vehemently disagree with the comment insofar as what it suggests would eradicate or help to prevent such acts. But the media generally today, especially tv talk shows, are gross abusers of their mandates to broadcast exclusively in the public interest. They don't. Whatever public benefit is had by showing an angry, emotional parent on tv pointing the finger of guilt at an accused who has just been arrested, or indeed an uncriticized statement of the President likewise, is far overweighed by the need to insure that all citizens receive fair trials under our Constitution. ("Oh, poor bleeding heart.") We know, but if our heart doesn't bleed for the rights under which we are supposed to be living as opposed to tv land's view of saying anything to get the soft-headed stirred to watch, then we will, sooner or later, be something other than the democracy our Founders envisioned. And that would be a far worse tragedy than the death of any one of us. No one has the right to put their personal grievances, emotions and loss over the rights of all who live in this society. Many families lose family members tragically and sooner than a natural life span and never have justice in the ordinary and secular sense of the word.

Ultimately and always, killers are caught in their own nets, the ones weaved inevitably by human conscience. Witness April 30, 1945.

It Vastly Bettors Position Of British Sea, Air Forces

If the British have succeeded in taking and occupying Corfu, they have enormously improved their position. The island is situated just off the southern tip of Albania at the entrance to the Adriatic Sea. Its possession puts the British in position to bomb the Italian troops now attacking Greece, from the rear. And far more important it puts both bombers and naval ships in easy striking distance of the Italian supply line to Albania from the two great ports of Bari and Brindisi. Brindisi is only about 150 miles away, Bari about 250 miles.

But this is only the beginning of the advantages. Manifest to anyone who looks at the map will be the fact that all Italian cities are now in easy reach of the British bombers. Rome itself is less than two hours away. And Rome is no longer safe for bombing. When Italy entered the war, the British Government promised to respect Rome as a holy city so long as the Italians refrained from bombing London. Nut lately the Italian papers have been boasting very loudly that Italian bombers have taken part in the attack on the English capital. They may rue those boasts very soon.

Even more readily got at than Rome is the great swarming city of Naples. And a flight of about 700 miles up the Adriatic will bring the British bombers over Venice--or Milan. By this route also the Brenner Pass, main line of communication between Germany and Italy, can now be bombed without flying over the territory of neutral Switzerland, something which has so far deterred the British from attacking it.

This Fellow Should Have Been Isolated Long Ago

In Cincinnati a little seven-year-old boy is dead, wantonly murdered. And the moronic squirrel-toothed face of Guy Willie Ponder, aged 26, leers at you from the pages of the newspapers. "I've wanted to kill somebody since last October," he explained.

That will anger you and you probably will be glad to think that Ponder will shortly be extinguished in the death house. Quite likely, that is the best thing to do with him. But it need not have happened at all.

Ponder is obviously of sub-normal intelligence. And he is suffering from a psychosis which is no mystery. It was described at length before the opening of this century and has been gone into with great thoroughness since. Its name is sadism. And it means pleasure in the infliction of suffering on others. All of us have a little of that in us. But in the case of a man like Ponder the sexual instinct has become so twisted and distorted that it can find an outlet only in torture and murder.

Ponder's abnormality should have been noted, by a person competently trained in the field of psychiatry, in his early school career. And a close watch should have been kept on him since. The odds are a hundred to one that long before this he had exhibited peculiarities which, if rightly interpreted, would have got him safely locked up in an institution. We fail to use the knowledge we have.

Senator Wheeler Remembers He is Status as Such

Maybe you had forgotten that Bounding Burt Wheeler is among other things a candidate for re-election to the Senate on Nov. 5. But Senator Wheeler plainly hasn't.

With Johnson of Colorado, he is out with a demand that the President take advantage of "the present extremely favorable" circumstances and try to engineer a "peace" in Europe.

If there were any prospect for a genuine peace, the President would have to take a long political gamble if he tried it. For some of the same people who are declaring that he is a warmonger would certainly begin to howl about his "sticking his nose into the affairs of Europe."

But there is in reality no prospect for peace. Adolf Hitler might, indeed, like to have the British blockade raised for a while until he could get himself into better position to carry out his scheme of conquest and the enslavement of mankind to the Herrenvolk. And to that end he might pretend to grant Britain "very generous" terms. But England would be merely committing suicide if she took them. And fortunately, the English seem to have realism enough to know it. Until Adolf Hitler is dead and his system is destroyed there will be no real peace. And proposals like Wheeler's do nothing but confuse the situation and lend aid and comfort to Hitler's pretense that all he wants is a decent world.

However there are a lot of Germans out in Montana, and some of them are Nazis, and all of them are inclined to feel that it is wicked old England which is responsible for this war. And isolationism is all over the place in Montana, whether the people are Germans or not. Hence Senator Wheeler's proposal, however much damage it does elsewhere, is good politics--for Senator Wheeler.

All This Name-Calling Will Have Its Harvest Soon

Last night in New York Senator Robert Wagner called on American labor to support President Roosevelt and "keep America out of war." In doing that he was only following up the President's intimations at Philadelphia.

For the last three weeks Wendell Willkie has been going up and down the country intermittently offering to guarantee to keep the country out of war if he is elected. His followers, like Senator Wagner, have taken the same line.

The plain truth about all these claims is that they are viciously false. The President himself has often explicitly recognized that nobody can guarantee to keep us out of war. And Mr. Willkie explicitly recognized as much in his acceptance speech at Elwood.

Nobody can guarantee to keep us out of war for the very good reason that we have no control over the Axis policies of other nations, and that there is a point at which the acts and policies of other nations must inevitably collide with the basic interests of this nation.

The Willkie people, Mr. Willkie himself, are busily denouncing the President as a warmonger. The Roosevelt people are busily trying to make it out that Mr. Willkie it is an appeaser, and the President is not above giving the notion occasional aid and comfort. All this is viciously false also.

To say that the President is a warmonger is to say that he is a bloody scoundrel who plans to make an unnecessary war, merely to further his political fortunes. There are hate maddened men who say that fully and openly--Willkie-supporter Hugh Johnson, for instance. The fact is that the President believes profoundly that Hitler is a terrible menace to the United States, that the British navy is our first line of defense against that menace, and it must be preserved if it is within our power, because our only alternative is to fight Hitlerism alone. That is borne out by the best military and naval authority, and obviously has the support of a majority of the people of the country.

To say that Mr. Willkie is an appeaser is to say that he is a scoundrel and a traitor who is willing to sacrifice the interests of this country for a hope that has already proved to be groundless and vain--to hand over this country to be Nazified rather than face the alternative of war.

To say that the President as a warmonger, that Mr. Willkie is an appeaser, is to say finally that we have as Presidential candidates in this country a Nero and a Quisling--that the people must choose between these two dreadful monsters. Nobody whose mind is not hopelessly distorted by the hate of partisan politics believes there is a grain of truth in it. The actual fact is that Mr. Roosevelt and Mr. Willkie, given the same circumstances, would act almost exactly the same way.

But all this falsification about keeping out of war is going to have its bitter harvest once the election is over. If Mr. Willkie wins he is going to have a millstone hung about his neck in the shape of all the sentimentalists, and old isolationists like Hiram Johnson who voted for him, and every little partisan Democrat. All these will be continually hurling in his teeth the words of his "guarantee"--and some of them will be in position very gravely to hamper him. And if Mr. Roosevelt is elected, he also will have his millstone, among the sentimentalist who voted for him believing in his nonsensical promise, and in every little Republican partisan. Day and night they will assault him with his own words.

Altogether a bad business.