Rot From the Sepulchre

Once again the American criminal justice system parades its wretched excrescences before the world. It was reported yesterday that DNA evidence cleared two black men of a rape and murder which they did not commit and for which they spent 30 years behind bars.

How did the “best justice system in the world” allow this to happen? There are two reasons.

The first reason is so worn as to be trite. The defendants were Negroes and therefore presumptively suspect. They were arrested on the alleged tip of an undisclosed informant passing along high school rumors. Fingerprint evidence from the scene of the crime was never examined and its existence was kept secret from the defense. In short, they were framed by a police force which, throughout the country, has proved itself to be consistently racist and corrupt.

But how was it that this flimsy case survived the “crucible of adversarial testing” before a “jury tried and true” in a trial governed by the very highest principles of Due Process of Law, inherited from Magna Carta and reaffirmed for generations by courts zealous to protect the interests and God-given freedoms of the individual?

Simple: The defendants confessed and that was that.

However, this occurred in 1983. Surely the suspects were advised of their Miranda Rights. Surely indeed, which brings us to the stinking core of the crap: Miranda was designed to save the confession not to protect the individual.

As everyone knows, Miranda v. Arizona (1966) 384 U.S. 436 required police to inform arrested suspects of their Constitutional rights prior to any questioning. The arrested person must be told that he has a right to remain silent; that he is entitled to a lawyer of his choosing or paid for by the State and that he can refuse to answer questions at any time. What could be more fair?

If, after being so advised, a suspect then chooses to ‘fess up that is his choice. The State has done what constitutional decency requires and it can hardly be expected to now ignore incriminating information freely and voluntarily provided!

This is the sort of high-sounding flatulence the United States inherited from English judges along with Magna Carta.

Why give warnings at all? Because as the Supreme Court found in the Miranda Case, custodial interrogation is “inherently coercive.” (Id., at 467, 515, 528, 535.) Those two words are worth pondering.

Anyone who has ever been pulled over for so much as a speeding ticket certainly knows the feeling. It is not pleasant. It is stressful. It causes the mind to race ahead thinking about too many things and therefore about none of them very well. Imagine then being handcuffed, walked into a cell and cut off from the world. Deprived of liberty it is animal and human nature to freak. Being taken into custody is at least inherently stressful.

But it is worse. A person who is taken into custody looses his freedom and not in some abstract or theoretical way. He cannot move his hands where he wills. He cannot walk where he will. He cannot access the phone or the urinal without asking permission from someone who has complete control over his immediate existence. That is what being in custody means. How can anything be considered “free and voluntary” in such a situation? If you are in custody you are not free. One would thank that was obvious.

Nor voluntary. The word “voluntary” means “unconstrained by the interference of another; unimpelled by the influence of another; not prompted or persuaded by another; done of his or its own accord; spontaneous; acting of one’s self, or of itself; free.” (Webster’s Revised Unabridged Dictionary (1913), p. 1618.)

A person in custody knows that the police, at the very least, suspect of him a crime and have the power to prosecute him should they choose to do so. This presents an ultimate risk of being sent to prison. Even more immediately it presents the more imminent prospect of being locked up pending trial, of loosing one’s job, of having one’s whole life turned inside out and ransacked by a decision that is, in the first instance, entirely up to the arresting officer or detective who takes over the case.

Thus, in addition to loosing his physical freedom and his contact with outside resources, the arrested person is placed under extreme duress by the prospects and alternatives faced. His situation is circumscribed and constrained by another. Like a dog, he will constantly be responding and adjusting himself to the person who can “make things go worse” for him.

“The human mind, under the pressure of calamity, is easily seduced, and is liable, in the alarm of danger, to acknowledge indiscriminately a falsehood or a truth, as different agitations may prevail. A confession, therefore, whether made upon an official examination or in discourse with private persons, which is obtained from a defendant, either by the flattery of hope, or by the impressions of fear, however slightly the emotions may be implanted, is not admissible evidence; for the law will not suffer a prisoner to be made the deluded instrument of his own conviction.” (Hawkins’ Pleas of the Crown (6th ed., by Leach — published in 1787, book 2, chapter 46, section 3, cited in Bram v. United States (1897) 168 U.S. 532, 547.)

All this is what “inherently coercive” means, which means that legally speaking no statement given in custody could possibly be considered “free and voluntary.” Howsoever viewed, to think otherwise is an oxymoron. The Supreme Court in Miranda recognized this, said this and cited studies on the psychological impact of being taken into custody.

Oh… but me oh my, what are we to do without a confession? Are we to forgo the apple of conviction “merely” because the confession was “situationally” coerced? After all, it could be true and a trial is “the pursuit of truth.”

So, rather than require the police to come up with independent evidence of the crime, the Court came up with a Marvellous Solution,one that was as Anglo-American as the Playing Fields of Eton …. or Andover. We can, the Court intoned, redress the coerciveness of the situation and “balance the playing field” by requiring the police to advise the suspect of his rights and the freedoms he retains, as a matter of law, even while in custody!

Let it not be said that the Constitution stops at the cell door! Nay! Fie! Even suspected of the most foul wrong doing, the individual retains his precious, inalienable rights.

What kind of imbecile could come up with such a solution?

Actually, these “advisements” were first enacted by a statute of Queen Victoria (11 & 12 Vict. c. 42, § 18) which required a person subpoenaed to a magistrate’s inquest to be advised of his right to silence, viz:

“Having heard the evidence, do you wish to say anything in answer to the charge? You are not obliged to say anything unless you desire to do so, but whatever you say will be taken down in writing, and may be given in evidence against you upon your trial.”

But there is a whale of a difference between advisement by a judicial officer, in court, upon mere summons and advisement by the burly brute who just threw you against a wall, cuffed your hands and generally manhandled you into a cell where you will stay until and if he lets you out.

More critically, the referenced advisement ensued after having heard and being presented with the prosecution’s evidence. In other words, the statute presupposed that there was something more than an accusation to make the case.

Did the Supreme Court really not see the difference? Did they really and truly think they could “balance the playing field” at the police station? Were they such terminal preppies?

Of course not. The Court was well aware of existing literature on the matter which its own precedents had cited. One can at least assume that Supreme Court judges understand the English words they use; and “inherent” means: permanently existing in something; inseparably attached or connected; naturally pertaining to; innate; inalienable;…”

If custodial interrogation is “inherently coercive” that means compulsion is indelible to and inseverable from the situation. It cannot be cured by an “advisement” … particularly from the person who just probably punched you in the gut and ran through the words of the warnings quickly, sarcastically and in a tone of voice which said: “and God help your sorry moutha fuckin ass if you “choose” to play hardball, asshole.”

The U.S. public, ever ignorant and belligerent, abetted by a chronically stupid, insipid and scandal-mongering press, are convinced that the Miranda decision was bleeding heart liberal judicial activism aimed at shackling the police and coddling criminals.

Just the reverse is true: Miranda was judicial activism aimed at “saving the confession” in order to insure conviction while providing some pretty window dressing to prove just how much and how deeply we cared for Due Process.

“This Court, while protecting individual rights, has always given ample latitude to law enforcement agencies in the legitimate exercise of their duties. The limits we have placed on the interrogation process should not constitute an undue interference….” (Miranda, supra, at p. 481.)

But surely there are other legal safeguards which forestall the possibility of a person being convicted solely on the basis of a confession which might possibly, in spite of all our best safeguards, be the result of some psychological process that makes an unfortunate person “the deluded instrument of his own conviction.”

Yes indeed! It is known as the corpus delicti rule. Before a confession can be admitted, there must be proof that the crime charged was committed. This ancient and hoary rule serves the fundamentally important purpose of insuring sure that a crime is not invented by the police or contrived or imagined by the defendant himself.

No! No! A man cannot simply walk into a police station and confess to killing a cat without there being independent proof that a cat was killed. The corpus delicti rule insures that a man will “never be convicted on the strength of his confession alone.”

But of course — and this is said with a completely straight face — proof that a crime was committed does not require proof of the perpetrator’s identity. “Identity is not part a crime’s corpus.”

In other words, if there is proof that a cat was killed in Montana, it is sufficient for conviction that a man in New York says “I did it.” Let it not be said that American law rushes to convict “solely” on the strength of a confession!

Of course a crime was committed. A rule which seeks to prevent conviction upon entirely unsubstantiated accusations sets the bar so low as to be worthless. The critical issue is always the identity of the perpetrator. The corpus delicti rule insures nothing and permits the most critical and essential part of the case to be supplied entirely by three words from the accused’s mouth.

This is the kind of garbage that passes for Due Process in the United States of America, and it was on the basis of this garbage that the two innocent black men were convicted of a rape and murder they admitted to but did not convict.

Well, one might ask, why did they admit it? Because nothing in Miranda prevents the cops from tipping the field once they have leveled it for all of 30 seconds.

Nothing in Miranda prevents interrogations lasting for hours; interrogations after being awoken in the middle of the night; Mutt and Jeff routines, lies, insinuations, and an arsenal of tricks and devices conjured up by government psychologists and experts in “cracking” suspects.

Once the warnings have been run-n-mumbled through… let all out psych war begin! And like imperial Caesars at the games, the Supreme Court has smiled on the sorry spectacle.

Not only were the two black teenagers subject to a “relentless” interrogation that lasted for hours it also turned out that they were mentally disabled. One of them could barely write.

But in the lofty reaches of Supreme Court jurisprudence that does change a thing. So long as the suspect was capable of understanding the words spoken, he is presumed, as a matter of law, to understand the nature and implication of the rights as to which he has been advised.

Even an illegal immigrant, who speaks a bare minimum of English and who has absolutely no contextual awareness of how the judicial system works or the role of the police in it, has been held to “sufficiently” understand the Miranda warning thus “preserving” his confession for use at trial.

It was racism that framed the two brothers and brought them to trial but it was rot from the white-washed sepulcher that allowed them to be unjustly convicted.