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
- A Response To Marc: Institutions, Agendas, and the "Culture War" - January 13th, 2016
- Lawyering Is About Service, Not Self-Actualization - January 11th, 2016
- Lawsplainer: Was FAU Prof. James Tracy Fired in Violation of His First Amendment Rights? - January 7th, 2016
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