Conservatives, we are told, oppose big government and mistrust government in general. Liberals, on the other hand, love them some big government.
Given a sufficiently generic and uncritical definition of "conservative" and "liberal", that might be true — on some issues. "Conservatives" definitely tend to oppose government intrusion into the sphere of economic activity, whereas "liberals" urge and welcome it.
But here's the grotesque irony: when you stop talking about business — about money — and start talking about blowing shit up, putting people in jail, and executing them, the opposite seems to be true. The mainstream American voices generally identified as "conservative" tell us we must trust the government when it decides which enemies of the state to lock up (whether they are suspected terrorists or accused criminals), and tell us that insisting upon some semblance of due process for such people puts critics on the side of terrorists and criminals. People who are extremely skeptical about the government's right and competence to regulate, say, the amount of rat feces in breakfast cereal suddenly become the government's biggest boosters when the question becomes whether the government has the right and the competence to jail and execute a man accused of murder.
I submit that this is breathtakingly irrational (as is the belief of "liberals" that the government can't be trusted to run the criminal justice or military spheres, but can be trusted to regulate every element of our economic lives). Prosecutors, cops, and military commanders are not some different species than IRS agents and regulators and city councilmen. They are all human: broken, fallible, subject to the insidious lures of power and the immense pressures of the culture in which they find themselves. All of them – any person who comes to wield the authority of the state against us — should be viewed with a healthy skepticism.
But that's just not our culture. Ask anyone who has ever tried to have a conversation with the average citizen about the presumption of innocence. Ask any defense lawyer who, during voir dire, has ever asked prospective jurors whether they think that the guy probably did something if he's sitting there at the defense table.
Ask Anthony Graves.
Anthony Graves spent 18 years in prison in Texas because of prosecutorial misconduct. Mark Bennett has been documenting the story admirably; read his work and follow his links to the searing Texas Monthly story about the case.
Anthony Graves was accused of a horrific mass murder. He was accused despite an utter lack of physical evidence: rather, he was accused based on the uncorroborated word of a man who admitted to participating in the murder, and based upon an expert's opinion that Graves' knife, among many other knives, was "consistent" with the weapon used in the killings. Graves was tried and convicted despite the fact that the actual murderer — Robert Carter, Graves' accuser — recanted and admitted that Graves had nothing to do with it. You'd think that would matter to a jury. Perhaps it would have — but multiple courts found that prosecutor Charles Sebesta didn't disclose that his star witness, the only witness establishing that Graves had anything to do with the murder, had recanted and exonerated Graves, then flip-flopped again in time to testify against him. The actual murderer, Robert Carter, went to his execution declaring that Graves was innocent. Yet Texas courts rejected Graves' appeals. It took the United States Court of Appeals for the Fifth Circuit to reverse the conviction. This week, the special prosecutor assigned to the matter dismissed charges against Graves, and he walked free after 18 years of incarceration.
Carter was patently a killer and a liar, uncorroborated by relevant evidence. But the jury bought his story — because the government told them to, and when the government wears the prosecutor's hat, people trust it. The proposition that the government's concealment of Carter's recantation was irrelevant is facially ridiculous — yet Texas courts bought it, because judges are people too, and when the government wears the prosecutor's hat, people trust it. Prosecutor Charles Sebesta — who took out an advertisement in the paper defending the conviction — still has his supporters, and many will say that this result is an example of clever lawyers getting criminals off on a "technicality" — because the government accused Graves of a crime, and when the government wears the prosecutor's hat, people trust it. I suspect that if you said to many of those people "when the government decides how much taxes you should pay, or how you should run your business, or what kind of health care plan you ought to have, you should trust the government," those people would react with disgust, seeing that statement as morally treasonous and displaying a canine level of devotion to the state. But tell them that defense lawyers spin bullshit to get the guilty off the hook, and they'll nod sagely and agree. It's a cultural thing. Some people identify more with folks who like to shoot dogs, and some people identify more with folks who like to tell you that you can't buy dogs.
Giving the government the power to do things we like tends to give the government the power to do things we don't like. In a perfect world, conservatives would see that reposing uncritical trust in prosecutors and cops ultimately promotes the government's power to regulate their businesses and their health care. Liberals would see that trusting regulators and bureaucrats increases the government's power to jail citizens upon flimsy evidence. Maybe one day more people will meet in the middle and recognize that the appropriate stance of an informed citizen towards all elements of the government is vigilance, skepticism, and firm support of individual rights against the state. Perhaps more people will agree that the correct response to any government attempt to control the individual is to question: "What evidence do you have to support this? Is it really believable? Can it be trusted? Is it enough?"
But I'm not holding my breath.
Last 5 posts by Ken White
- RIP Abe Doe - October 21st, 2016
- Lawsplainer: The Ninth Circuit and Compelled Speech About Abortion - October 17th, 2016
- Thanks and Congrats To Dhillon Law Group For Important Pro-Bono Anti-SLAPP Win - October 10th, 2016
- Hillary Clinton, the Sixth Amendment, and Legal Ethics - October 10th, 2016
- FIRE Attacks Northern Michigan University's Shocking, Wanton Rule Against Students Sharing Suicidal Thoughts - September 22nd, 2016