Hiding behind a jury and letting it do the dirty work


ADVOCATES of executing Eugene Colvin-el, now in angry disarray, are using the rubric "victim's rights" to justify an otherwise insupportable position.

To decry the commutation of Colvin-el's sentence as a diminishment of victim's rights muddies the waters historically, legally and morally. It does a great disservice to a society that is grappling with a difficult and painful moral and legal issue.

"Victim's rights" are a creature of social justice, not criminal justice. Providing aid and comfort to victims of crime is an appropriate action for government, just as is helping flood or hurricane victims. It is right and humane. Society may be measured by how it treats its least fortunate.

At the least, crime victims should not be subjected to bureaucratic indifference. But the criminal law has a very specific purpose. The crime victim's legal role, unfortunate as it might be, is to testify to the truth so as to allow the state's system of sanctions to be applied or not. In the criminal law, victims do not have rights beyond those of other witnesses. There is no "right" to a specific outcome.

The argument propounded is that commutation of a death sentence (or worse, the elimination of the death penalty) denies the aggrieved victims their pound of flesh. The underlying premise is that the job of the law is to exact revenge on behalf of the person or persons wronged. Indeed, the English law of crimes, the direct ancestor of our present criminal jurisprudence, was created to stop just such vendettas.

The crown made a very simple deal with its vassals. You are going to stop killing each other over wrongs, real or imagined. In return, the crown will guarantee the peace. It is the king's peace. Anyone who violates it will be answerable to the king and no one else.

You can sue the bad guy for damages but only the crown through its courts and prosecutors has the power over life, liberty and death. That innovation made possible the more or less civil society in which we live today. With the spread of democracy, the crown's monopoly became the people's monopoly, not individually but in the aggregate. In Texas, where I used to practice law, every valid indictment must conclude with the words, "Against the peace and dignity of the state."

All the "victims' rights" argument does is obscure the real issue illuminated by technology. In all of the convictions for rape or murder reviewed in light of DNA-tested evidence, nearly 20 percent were found to be physically impossible.

While DNA evidence can't specifically point to the guilty party, it can eliminate the innocent to a moral certainty. These are the most serious of crimes. The most rigorous processes are applied to them. We spend millions of dollars and countless hours of jurors' time in the hope of affixing blame and punishment to the perpetrator. Apparently, we are wrong -- dead wrong -- in one of every five cases.

What DNA testing says about the most rigorous part of the criminal process can logically be extrapolated to the rest of the cases on the docket. If so, then it is valid to conclude that one of five trials generally ends by convicting the wrong person. Appellate courts do little to remedy the injustice. Of the men released from death row as innocent in Illinois, each one had his conviction affirmed by appellate courts.

That is the dirty little secret that no one wants to face because it undermines the moral legitimacy of our criminal justice system. Scientific curiosity has opened the Pandora's box of human frailty and our worst nightmares about ourselves are creeping out.

Is it possible we have been negligently imprisoning and/or executing human beings 20 percent of the time for the last 300 years? It now appears not only possible but perhaps probable. We have designed our legal system to find the truth, protect the innocent and punish the guilty. We have believed in it, touted it to the seemingly unenlightened. The jury of our peers has clothed us in moral smugness.

No wonder we are now so reluctant to confront our deficiency. Success has many fathers but failure is an orphan.

Louis F. Linden, a Baltimore consultant, was for five years the executive director of the National Association of Criminal Defense Lawyers.

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