Apologies to Hugh Hewitt listeners for missing my weekly spot on the show. Legal matters intervened, of course. On that very subject, don't miss Glenn Reynolds' devastating indictment in USA Today, "Our Criminal Justice System Has Become A Crime":
Here's how it's supposed to work: Upon evidence that a crime has been committed â€” Professor Plum, found dead in the conservatory with a lead pipe on the floor next to him, say â€” the police commence an investigation. When they have probable cause to believe that someone is guilty, the case is taken to a prosecutor, who (in the federal system, and many states) puts it before a grand jury. If the grand jury agrees that there's probable cause, it indicts. The case goes to trial, where a jury of 12 ordinary citizens hears the evidence. If they judge the accused guilty beyond a reasonable doubt, they convict. If they think the accused not guilty â€” or even simply believe that a conviction would be unjust â€” they acquit.
Here's how things all-too-often work today: Law enforcement decides that a person is suspicious (or, possibly, just a political enemy). Upon investigation into every aspect of his/her life, they find possible violations of the law, often involving obscure, technical statutes that no one really knows. They then file a "kitchen-sink" indictment involving dozens, or even hundreds of charges, which the grand jury rubber stamps. The accused then must choose between a plea bargain, or the risk of a trial in which a jury might convict on one or two felony counts simply on a "where there's smoke there must be fire" theory even if the evidence seems less than compelling.
This is why, in our current system, the vast majority of cases never go to trial, but end in plea bargains. And if being charged with a crime ultimately leads to a plea bargain, then it follows that the real action in the criminal justice system doesn't happen at trial, as it does in most legal TV shows, but way before, at the time when prosecutors decide to bring charges. Because usually, once charges are brought, the defendant will wind up doing time for something.
That's the way to bet. You cop a plea - or else. Even on nothing cases. A couple of years back, I was pulled over by a cop in upstate New York for an alleged stop-sign violation. I pleaded not guilty. The unprepared but remarkably unpleasant town prosecutor handed me his business card and said, "Call me, we can talk." He wanted me to enter into negotiations to agree to plead guilty to a lesser offense and make a cash donation to Mothers Against Stop-Sign Violations. And he seemed barely to comprehend the concept of innocence - or, indeed, of a speedy trial.
At the federal level it's even worse, with US prosecutors "winning" on a scale (95 per cent) unseen outside the justice systems of the more thin-skinned and neurotic dictatorships. They win because, not to put too fine a point upon it, they have the resources to buy up their witnesses. You want to nail the CEO? You "persuade" the CFO to testify against him.
Take Dinesh D'Souza, one of those "political enemies" who's managed to attract the attention of the feds. For a campaign finance "violation" of $15,000, he has already been handcuffed and perp-walked, bailed for half-a-million, lost his passport and freedom of movement, and requires permission from a judge even to travel from New York to Boston. This is disgraceful. Yet D'Souza now faces the choice between confessing to something or having his life ruined. This is a disgusting, capricious system of which Americans should be entirely ashamed.
~My only mild objection to Glenn Reynolds' headline "Our Criminal Justice System Has Become a Crime" is that America's civil justice system is also a crime. I speak, of course, as someone currently mired in it, and as someone who feels dirty simply being in this stagnant toilet of pseudo-justice. It has many of the same features as the criminal courts - the ludicrous pile-up of multiple counts for a single solitary offense, the reduction of the trial from the central event of the matter to a distant and unlikely postscript, etc. Scaramouche writes today of my case:
I don't get it--Mark Steyn writes a brief blog post that's dismissive of Michael Mann's hockey stick graph and gets SLAPPED with a Mann-caused lawsuit. But back in 2010 climate change skeptic A.W. Montford published an entire book in Steyn's vein--The Hockey Stick Illusion: Climategate and the Corruption of Science; it was Amazon U.K's #2 best selling climate book that year--and no suit ensued.
That's an interesting point. America has greater absolute protections for freedom of speech than other countries in the Common Law tradition - in theory. But in practice it's a pretty pitiful First Amendment if it requires half-a-decade of my life and a seven-figure sum to decide that it was lawful for me to write my 270-word blog post. As Scaramouche notes, in Britain, A W Montford wrote a whole book on Mann's "illusion" and "corrupt" science - without legal consequence. Indeed, I've said what I said about Mann all over the world. As I put it in the Fourteenth Affirmative Defense of my Amended Answer to Mann's Amended Complaint:
127. Defendant Steyn has said substantially the same things or worse about the fraudulence of Plaintiff's hockey stick for many years in far more prominent publications in Australia and other jurisdictions without attracting legal action by Dr Mann. It cannot be the intent of the First Amendment that it should leave citizens of the United States with fewer rights to free speech than those of countries that remained within the British Empire.
As Conrad Black likes to say, America employs as many lawyers as the rest of the planet combined. They invoice ten per cent of GDP. What does America have to show for the over-lawyerization of daily life other than the remorseless arteriosclerosis of a once dynamic republic?
~Turning to other matters, the same national sclerosis afflicts foreign policy. In The Weekly Standard, William Kristol writes:
Obama certainly isn't sending the message that Colin Powell, after the Cold War, wanted America to send: "Superpower lives here." Obama's message, by contrast, is: "Superpower once lived here. No forwarding address."
Putin understands Obama's message. He knows he's won Crimea. The question is whether he'll win Ukraine.
He thinks he will. He's dealing with the Obama administration, after all. He looks at the U.S. withdrawal from Iraq and Afghanistan, he witnesses the failure to enforce the red line in Syria and the subsequent successes of his friend Assad, he chortles at the relaxation of the sanctions on Iran and the desperate desire to cut a nuclear deal, and he sees Obama's defense cuts. And he reads the New York Times, where David Sanger reports, "Mr. Obama acknowledges, at least in private, that he is managing an era of American retrenchment."
So Putin sees retrenchment. Putin sees retreat.
Ah, if only Obama could be as merciless on Putin as he is on Dinesh D'Souza.
Incidentally, the over-lawyerization of America extends to foreign policy and national security, too. As I've noted, the US can no longer win wars. Instead, as in the courts, it dithers around for ten years at great expense and then "settles". As I wrote way back on November 3rd 2001, in an essay anthologized in The Face Of The Tiger (personally autographed copies of which are exclusively available through the SteynOnline bookstore, he pleads with an eye to his legal offense fund):
The turning point was the first night of the bombing raids, when (according to the New Yorker's Seymour Hersh) an unmanned CIA Predator reconnaissance aircraft identified Mullah Omar's car fleeing Kabul. Lacking the authority to 'push the button', the agency relayed the news back to central command in Florida, where General Tommy R. Franks, the head man, replied, 'My JAG doesn't like this, so we're not going to fire.' A JAG is a Judge Advocate-General â€” i.e., a military lawyer â€” and the only reason I know that is because there's a show on CBS called JAG. It says something about our times that the only military adventure series on American network TV is about an army lawyer. So, rather than offing the mad mullah and worrying about ass-covering later, the asscovering took precedence and the mullah got away.
And here we are 13 years later with the Americans heading for the exits and Mullah Omar and the Taliban preparing to return to power in Kabul. That worked well.