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April 04, 2005
One last thing . . .
About the Schiavo affair.
I've heard much talk about the legal system, and how our very freedom, the stability of the American experiment, depends on our adherence to the rule of law. The thinking is that because courts held hearings wherein testimony was given; evidence was considered;rulings were issued; and appellate courts upheld the decisions of the lower court, that Terri's parents, and therefore the rest of the country as well, must accept the outcome.
As a deputy district attorney, I had the good fortune to work for Mike Bradbury, who headed the Ventura County District Attorney's Office for almost 30 years. When I was a novice prosecutor, I was introduced to Mr. Bradbury's moral compass. Although a tough, law-and-order type with an "Old West" persona -- he lived on a ranch dubbed "The Hang 'Em High" -- he told all his attorneys, "Do right."
In other words, the bottom line is not "win at any cost," but to pursue justice. The justice system, the laws passed by the legislature, enforced by the prosecutors and interpreted by the courts, is a vast, convoluted, imperfect means to an end. As such, although police have a duty to present all crimes to the district attorney for prosecution, the district attorney has wide latitude with regards to what -- if any -- charges to bring.
The prosecutors are tasked with evaluating a crime, seeing if the facts produced by the police investigation convince the reviewing attorney of the suspect's guilt, followed by an evaluation as to what the appropriate charges are, and finally, whether or not there is a reasonable likelihood that a jury would convict the suspect.
All that being said, even if a prosecutor believes the charges are true, the suspect is guilty, and a jury would convict, there are circumstances where, IOJ -- in the interest of justice -- reduced charges, or no charges at all, might be filed.
Judges have the authority, IOJ, to dismiss special allegations, "Strike strikes," as we say in the trade, even grant probation where the law mandates prison, in the interest of justice.
This elasticity is built into the system because we know, at a basic level, that sometimes the right thing to do isn't necessarily the course of action mandated by the legal process.
When people say that the courts have given Terri's parents their day in court, and therefore they must stand by while police enforce the court-ordered starvation of their daughter, well, there's the rub.
Is this end result just? Is it just because judges say it is an unlawful act to try to give Terri water?
Courts once said that "Separate but equal" was lawful. They once held that slavery was lawful, but helping a slave escape was a criminal offense. Should those Americans who knew that slavery was an abomination -- no matter what judges said -- refused to assist those slaves seeking freedom? Should the Underground Railroad have ceased ferrying desperate men and women to freedom because to do so was a violation of the law?
There are times when civil disobedience is the right thing to do.
I understand that anarchy is the result if this thinking is applied indiscriminately, but the argument of "legal process over justice" leads to moral anarchy.
Justice may be blind, but the law all too often is an ass; it helps to ask ourselves, "is the final result just, or is it just the final result?"
Posted by Mike Lief at April 4, 2005 11:27 PM