PERSPECTIVE ON THE DENNY VERDICTS : Remember Why Our System Works : We value individuals. Better to let 100 guilty go free, the Founding Fathers decided, than to punish one innocent.
This is probably the 2,010th post-mortem of what has become known as the Reginald Denny case. It may be the only one written by a judge. Judges have very strict rules about what they say and write. We are not allowed to comment on pending cases, and even when we discuss completed ones, we have to tread carefully to avoid an ethical breach.
There are a lot of problems associated with that. It isolates us. It leads to misunderstandings, it creates an impression of aloofness and it deprives the public of some occasionally valuable and illuminating commentary.
But the worst part is, it keeps the taxpayers, the people who foot the bill for my branch of government, from feeling confident about how it’s being run. Every day we (remember, I’m a taxpayer, too) pick up the paper and read about some case, somewhere, that convinces us the system is going to hell in a handbasket. And unlike every other system--in which the managers pop up the next day and say, “Hey, it’s not as bad as it sounded”--the judiciary remains mute, silenced by an ethos that says we must protect our absolute impartiality at all costs and must not seem to be taking sides.
That’s pretty much where I am. I don’t know what happened in the Reginald Denny case. I don’t know what happened in either of the Rodney King cases. I didn’t follow them any more closely than you did. But I know a few things about the criminal-justice system that you ought to keep in mind when you read about cases like these. And I think I can relate them without compromising judicial ethics.
The first and most important thing to remember is that cases in which there is a reasonable doubt of guilt must be resolved by acquittal. That is the sine qua non, the basic principle of criminal justice. If you cannot accept that fact, you will never be at peace with the criminal-justice system.
Now I’ll tell you, folks, that drives me crazy sometimes. I was a prosecutor for 15 years. If I hadn’t been elected to my current job, I’d have spent my life trying to put criminals in jail. That’s the only kind of law I ever practiced and the only kind I ever wanted to practice. And my outlook didn’t change just because my job did.
But that is the way it is. We tell every jury that unless they are convinced to a moral certainty of the guilt of the defendant, they must return a verdict of not guilty. We don’t define that term; we leave it up to the jury to decide if their feeling about the case rises to a level they’d describe as “moral certainty”--still a very stiff test for conviction.
What’s more, we tell the jury they must acquit even if they think the defendant is probably guilty, if there is a reasonable doubt about that guilt. And we tell them they must be unanimous in that decision.
That is not a system designed to arrive at truth, folks. It is a system designed not to punish innocent people. In the 200 years of our history, a value judgment has been made. The judgment--right or wrong--is that we sometimes sacrifice truth to be sure we never sacrifice individuals. The idea is that it is better that 100 guilty go free than that one innocent be convicted.
Why is it that way? Because it was devised by people who distrusted authority, people whose common heritage was governmental persecution. It is the system of a nation whose very existence is based on battles against oppression, a nation that to this day trusts and values its individual citizens more than any other in history. The very thing that makes us a great nation ensures that we will never be comfortable with our criminal-justice system.
Before you ascribe a verdict to racism or fear, keep in mind the bias of the system toward acquittal, and why it’s there. Because of that bias, there will always be people who are acquitted not because they are white or wealthy or police officers or because the jury was intimidated or the judge was an idiot, but because we are a nation not willing to risk unjust criminal convictions.
Nothing establishes that more clearly than the King and Denny verdicts. These cases didn’t prove that the system is racist or irresolute. They didn’t prove anything about societal breakdown or intellectual dishonesty.
What these cases proved was that no matter what the race or position of the defendant, no matter how strong the evidence, there will be times when 12 people drawn from the community will not be able to say they are convinced “beyond a reasonable doubt, to a moral certainty” of the guilt of the defendant--especially when that guilt turns not solely on what the defendant did, but also on what was going on in his or her mind. When that happens, jurors will, under our system, be required to acquit--not because they’re racists, not because they’re fools, not because they’re scared, but because those are the rules we gave them.
And as long as we are the nation our founders envisioned, as long as we are the home of the brave and the land of the free, as long as we can distinguish right and wrong without the assistance of the legal system, we will swallow hard, thank those people for their service and go about the very difficult job of living with our principles.
