"Liberal" Does Not Reliably Mean "Respectful of the Rights of the Accused"

Imagine this scenario:

You're arrested and charged with possession of child pornography. You're stunned. What the hell did you have in your possession that could possibly be child pornography? Could the state be misrepresenting the nature of innocent pictures of your kids at the beach? Could someone have planted materials on your hard drive, using your unsecured wi-fi network? There's only one way to find out — thank God for your due process right to a vigorous defense. You and your attorney demand to inspect the evidence — to see the alleged child porn so that you can be ready to challenge the government's proof at trial, and even have a defense expert review it to counter the government's expert, who may be flat wrong in identifying the materials as child pornography.

Not so fast, says the state. Merely possessing child pornography is a crime. Moreover, every time anyone looks at these pictures, the children in them are re-victimized. Therefore, we can't allow you to examine the materials to prepare your defense. You'll just have to see them for the first time at trial, like the jury. Don't worry — we're the state, you can trust our judgment when we accuse people of crimes.

Fortunately, that scenario does not illustrate the actual law. In real life, the accused has the right to review the evidence against him. But how you feel about that scenario can help to determine whether you lean liberal or libertarian — whether you are suspicious of state power in all instances, or whether you trust the state and look to its firm hand when it comes to hot-button issues, like OMG THINK OF THE CHILDREN!

We've been conditioned by the culture to expect that "liberal" and "supportive of due process and fundamental fairness to all people accused of crimes" go hand-in-hand. It's a lie.

Take the scenario above. It's remarkably close to an actual case that inspired this revolting and insipid Gawker post by Brian Moylan about the criminal case against Marc Gilbert in Washington State. Gilbert stands accused by the state of terrible crimes:

Marc Gilbert is accused of sexually assaulting young boys and videotaping the abuse.

It's undisputed that the videotapes are material evidence relating to the crimes, and apparently the state wants to use them to prosecute Gilbert. The Washington media — and Brian Moylan at Gawker — are outraged that this means that Gilbert, who is representing himself, is allowed to view the videotapes — outraged that the matter does not end like the scenario above, with the accused denied access to the evidence For The Children. Quoth Moylan:

See, Gilbert is acting as his own lawyer in the trial, so as his defense attorney, he needs to be able to review all the evidence in the case. Since the evidence in this case is footage of him allegedly raping boys, then he gets to review that evidence to his heart's content. And since his access to this evidence will only go on for the duration of the trial, you can expect this thing to drag on for as long as Gilbert can make it. This is how justice gets served.

(Emphasis added, government-fluffing douchebaggery in original.)

The government — like the rabble of commenters at Gawker — view it as a "loophole" that a person accused of a terrible crime is entitled to review the evidence against him:

The prosecutor and the sheriff say the results of the legal loophole are sickening in this case, but say the state Supreme Court has ruled in Gilbert's favor.

"Make no mistake — I don't like it," said Pierce County Sheriff Paul Pastor. "But it is not my choice whether to do it or not to do it. There's no question that I don't like it. There's no question that this makes me grind my teeth."

"We don't like it. We don't want to do it, but we have to follow the law. The fix here is to change the law," said Pierce County Prosecutor Mark Lindquist.

Lindquist isn't just blowing smoke. This is exactly the sort of scenario that the state uses to expand its power and reduce the rights of individuals accused of crime — the sort of scenario that makes citizens swallow the premise that hey, maybe it's fine if the state can accuse people of crimes based on secret unreviewable evidence.

The media is frequently described as having a "liberal bias." Gawker is described as having one. For some meanings of "liberal," that's true — but only if we accept that "liberal" involves Nancy-Grace-style, law-and-order, hostile-to-rights-of-the-accused drivel.

Edited to add: It's even worse at True Crime Reports.

Edited to add: Here's an exchange I had with a commenter at TCR. Are both of us being sarcastic? I can only hope.

Last 5 posts by Ken White


  1. says

    I depart from libertarian utter ideological purity in liking laws against owning child pornography.

    That said, yes, I'm 100% in agreement with you here – if someone is accused, it's insane to deny them the right to review the evidence.

  2. SeanD says

    The media in all of its traditional forms, liberal or otherwise, have long sought to undermine the concept of "innocent until proven guilty" – perp walks, publishing mugshots of suspects, Nancy Grace and the deification of law enforcement have been the main avenues.

    It was not until I began to work in the criminal justice field that I truly began to understand (IMHO) the nuances that had been obfuscated by a lifetime of feeding at the mainstream media's teat.

    This really hits home when interviewing otherwise liberal jurors after a conviction (I'm based in SF) – it is very difficult for people get out of their bubbles and give people a true benefit of a doubt.

  3. Hasdrubal says

    In all fairness, most of the commentors at Gawker pretty much agree with you. From the first comment saying "If we outlaw this, justice would NEVER get done in any case. Not sure how to change that without making seriously flawed laws that undermine justice….. " most of them agree.

    The True Crime Reports commentariat, on the other hand, perfect examples of your thesis.

  4. Quizikle says

    Used to be the saying was:
    "A conservative is someone who has been robbed, a liberal is someone who has been arrested". Now both sides seem to favor: "The police are right – throw 'em in jail and sort it out later".

    I consider TJIC one of my blog fathers, but as "child pornography" now seems to cover parents having pictures of the baby in the bath or the kids in bathing suits in the pool, I have to maintain some degree of libertarian leanings towards child pornography laws. And an even stronger distrust of prosecutors (especially in WA) than police.

  5. Xenocles says

    "This is how justice gets served."

    We agree, but I don't think he meant it to go that way.

    Another question: if it should be a crime for the defense to view it, why should the jury be allowed to see it? Why should the prosecutor?

  6. says


    > I consider TJIC one of my blog fathers


    > but as “child pornography” now seems to cover parents having pictures of the baby in the bath or the kids in bathing suits in the pool, I have to maintain some degree of libertarian leanings towards child pornography laws.

    Agreed, large numbers of the prosecutions are garbage.

    …but then again, so are large numbers of prosecutions for many crimes.

    If we can limit the concept of "child pornography" to the truly horrible 99-out-of-100-people-agree-a-child-is-being-harmed stuff (and perhaps we can't – feel free to argue that), then I defend the laws as being a small infringement on rights in return for a large decrease in the incentive to harm children by creating more of the stuff.

    I think that laws against possession of stolen property are likewise pragmatic and not unreasonable.

  7. says

    I can't tell if this True Crime Reports commenter is being sarcastic or not:

    After the Casey Anthony trial this does not surprise me a bit.

  8. Justin T. says

    Why did they bother interviewing the sheriff about this issue? It's an issue of law, not law enforcement. That's like interviewing the district court clerk about his reaction to the latest Supreme Court decision.

  9. Linus says

    Yeah, I'm shocked, SHOCKED that the sheriff believes the guy is guilty before trial, and that he is in favor of removing obstacles to conviction. I did NOT see that coming. Usually sheriffs are so solicitous of the rights of the accused.

  10. Patrick says

    I'm not sure why this needs to be viewed through a "liberal/conservative" lens, but insofar as there is a "liberal" position on this issue, it is yours. I'm pretty confident that none of the crazy liberal hippies at the super-liberal law school I just graduated from would think this guy shouldn't be able to review the evidence against him.

  11. Richard Hershberger says

    @ Hasdrubal:

    It's not just the commenters. The guy who posted the on Gawker agrees. See the fourth comment in. His original post is a visceral reaction to the situation, not a recommendation for a change to legal procedure. The only person quoted who is advocating such a change is the prosecutor. It may be that Pierce County is so lefty that even the prosecutor is a pot smoking hippie, but this looks suspiciously like an over-strenuous effort on Ken's part to make this a indictment of liberalism.

  12. says

    In the fourth comment in, he says "I agree, and it's almost genius that this guy found an unbreakable loophole." That doesn't raise my esteem for him much. The defense having access to the evidence against the accused isn't a "loophole."

    And if anyone takes this as an indictment of all liberals or liberalism, that's sloppiness on my part. Some liberals are distinctly pro-defendants-rights. The headline says it better — being liberal does not make people reliably pro-defendant — particularly not in some types of cases (like, say, rape).

  13. Bob says

    If he -wants- to see the evidence against him, he must be a guilty, why else would he -want- to watch child pornagraphy, right?

  14. Contracts says

    @Justin T.:

    The sheriff probably runs the county jail, where this guy is incarcerated and actually watching the videos. And possession of such videos is, likely, against normal jail policy. So talking to the sheriff does make some sense.

  15. says

    In answer to Xenocles, neither the viewing nor the possessing of child porn contributes to the victimization. The buying of it is different.

    Suppose we could change the law so that only buying (or producing) child porn was illegal. (Child porn, like music, is pirated.) Under the new law, many sad, demented people could satisfy their perverted lust without risk, without expense, and without enabling those who directly abuse children! The legislature, in its zeal to seem strongly intolerant of "badness" has, in fact, induced more of the badness. Note: this is not the first time this has happened.

  16. PLW says

    Ohh, I don't know about that. If all the readers of Popehat went away, I bet there would be an appreciable decrease in the amount of quality legal-gaming-libertarian-art-history snark on the internet, even though none of us pay anything. There's not even any advertising.

  17. Xenocles says

    @piperTom: I'm not really sure how that answers me. The issue is whether he should be allowed to view it as a part of the business before the court. If not, why should any others involved in that business be allowed to?

  18. says

    @Xenocles: I propose that everyone be allowed to view. So the prosecutors, defense, and jurors are not exceptions to the basic rule.

  19. Richard Hershberger says

    @ Ken:

    The comment he is agreeing with is this, in its entirety:

    "As much as I am pissed off about this, unfortunately it's not something we can prevent. The guy is acting as his own lawyer. Defense lawyers get access to all evidence. If we outlaw this, justice would NEVER get done in any case. Not sure how to change that without making seriously flawed laws that undermine justice….. "

    The loophole in the Gawker post, which you are so exercised about, is not that "a person accused of a terrible crime is entitled to review the evidence against him." It is that this person is has found a way to use this right to perform an otherwise illegal and immoral act. If you can manage to read this as "Nancy-Grace-style, law-and-order, hostile-to-rights-of-the-accused" then I can only stand back and admire your ingenuity. But I feel no urge to join you.

  20. says

    The defense having access to the evidence against the accused isn’t a “loophole.”

    I've long since decided that whenever someone talks about a loophole, they are really just talking about a law they don't agree with.

    I'm sure plenty of far-left Liberals consider the 2nd Amendment to be a loophole, just like plenty of far-right Conservatives consider the protection "Pastor" Phelps' enjoys regarding his words under the 1st Amendment to be a loophole.

  21. says

    It is that this person is has found a way to use this right to perform an otherwise illegal and immoral act.

    An illegal and immoral act, in the opinion of the sheriff.

    For all you fucking know, it's a DVD video of his niece at a pool party, sent to him by her parents.

    It isn't that we think you might be hostile to the rights of the accused, it's that you just assume he's guilty of what he's been charged with.

    Not unlike Nancy Grace.

  22. says

    R. Hershberger: "this person [has] found a way … to perform an otherwise illegal and immoral act." I get the "illegal" part, but we are talking about viewing here. Not Making; not even Buying… so what's the "immoral" part? Explain how the viewing hurts anyone, please.

  23. says

    That assumes that everyone defines morality the same way you do. I'm guessing here but I would think that the majority of people don't define morality based on harm done to others.