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from here on July 24, 2007:
http://www.missoulian.com/articles/2007/07/15/opinion/opinion5.prt
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GUEST COLUMN: How can we personally protect our freedoms? - Thursday, July 12, 2007
By CRAIG SHANNON
Dear Benjamin Franklin,
As you know, our free nation is founded on the legal principle “Innocent until proven guilty,” which is explicit in our Constitution. Heck, you helped establish this cornerstone of justice in the Revolution.
This principle requires a presumption of innocence for the citizen accused and against conviction, in favor of freedom and for life, not death. One of your oft-quoted and generally approved legal maxims that illustrates this principle is: “That it is better 100 guilty persons should escape than that one innocent person should suffer.” You penned that in your letter to Benjamin Vaughan, March 14, 1785. (“The Writings of Benjamin Franklin,” edited by Albert H. Smyth, 1906).
Meanwhile, lying open on your bedside table was Sir William Blackstone's “Commentaries on the Laws of England.” Blackstone wrote: “For the law holds, that it is better that 10 guilty persons escape than that one innocent suffer.” Blackstone, perched by candlelight, couldn't get enough of Voltaire, who authored the generous maxim “that 'tis much more prudence to acquit two persons, tho' actually guilty, than to pass sentence of condemnation on one that is virtuous and innocent.”
So Ben, what do you think about the proposition that it is a greater injustice to release a guilty man from prison than to cage an innocent man for an entire lifetime when you consider that the crime victim's family can never be free from their pain? Doesn't wanting their pain to go away warrant us to err on the side of presuming the citizen accused is guilty?
Ben, you used to go fishing, right? What do you think about this test for being a fish, complete with scales, gills and a tail: to merely smell like one? Ben is it better to cast a huge net catching all of the guilty men together with some innocent men, or to rather throw out a smaller net catching most of the guilty and none of the innocent?
If fish is what you want, is it better to throw out the big mambo-jambo drag net catching and canning all the seashells, seahorses, eels, seals, sharks, dolphin, whales, fish and fishermen in its grasp? You don't have to answer these questions, Ben. I know what you are thinking.
I now write you because we have a problem here in Montana and we need your help. Could you kindly fast-forward a few lifetimes and consider a recent written statement of Mike McGrath, Montana's state attorney general and current candidate for the chief justice seat on the Montana Supreme Court.
Mr. McGrath says that “while it is indeed a travesty for an innocent man to spend his life in prison, it is a greater injustice for a guilty man to be set free when his victim and her family can never be set free from her brutal death.” (Missoula Independent, June 7-14)
What do you say about that, Ben? Does that not contradict our firmly recognized principles of justice? Can justice ever be served by electing to keep an innocent man in a deep, dark hole for the rest of his life? Is this statement an innocent, isolated, personal view of our chief law enforcement officer or a broader comment on our justice system? Is it a glimpse into the underpinnings of our society?
Do you think McGrath's ideology creates a hidden bias, in the minds of those who follow it, prone to prosecute? Will this misguided thinking not bamboozle justice as it pre-judge's the citizen accused as guilty? Is our society bent on suspicions and convictions? Have we evolved into a truly free society? Are we freer now than we were 200 years ago? Will this ideology not increase conviction rates among both the guilty and the innocent? Will justice that is anxious for a conviction sweep up innocent people in its enthusiasm? Does a society founded on this ideology tend to seek the truth? What is truth's role in our lives, our justice system, in our society?
What could be a politician's motivation for saying such a thing? Is he looking for more votes on a “law and order” platform? Was it a mistake, an innocent slip of the judicial pen? How much control does McGrath have over the state's justice system as a whole? Has McGrath's ideology tainted our justice system? Does there exist a systemic problem? What can we do to fix it?
Is making the citizenry aware of these prejudices against the presumption of innocence enough? Can we depend on the government to safeguard our individual freedoms, or must the citizens personally undertake that task? Do you have any suggestions on how we might peacefully go about doing something like that? I patiently await your reply.
Yours in earnest,
Craig Shannon
Craig Shannon is a criminal defense lawyer in Missoula.
Copyright © 2007 Missoulian
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