Another voice chimed in on the discussion of whether it was advantageous to work both sides of the fence before deciding where to spend the rest of your life, defense or prosecution.  I wasn’t aware of it until I received an email from Bennett asking me what I thought. My reaction was that I thought it called for a post.

Prosecutor Tom McKenna, at his ironically-named  Seeking Justice blog, decided that it was his job to judge Bennett.  His verdict?  Guilty!  Bennett was indicted for naiveté. He committed the offense of expecting the criminal justice system to fulfill the function demanded of it.  McKenna scoffed:

What’s truly remarkable about this oft-encountered sentiment (encountered amongst defense-oriented blogs, anyway) is how little understanding it reveals of what the system IS (never mind the mastubatory, self-congratulatory, revolutionary chic rhetoric).

News flash: we live in a world full of imperfection and sin. This encompasses both the criminals and the flawed people who run “The System.”

It’s the face-off of cynicism and idealism.  The defense doesn’t “get it.”

But if one understands that the system itself impliedly allows for the potential of a certain number of innocent people being convicted (by not demanding a standard of “absolute proof” or “proof to a metaphysical certitude”) then it can be understood that the system is no way broken simply because some very small number of mistaken convictions occur.

In sum, we do not, and have never had, a system that adopts the old saying of Blackstone, “better that ten guilty persons escape than that one innocent suffer” in the sense that we fashion our system to be absolutely infallible in assigning guilt. There is, in effect, a built-in error rate inherent in the process.

It’s not that McKenna is alone in that fact that he’s perfectly comfortable with the idea of factually innocent people being convicted.  My old train buddy Mike always said, “somebody has to take one for the team,” though he was clear that it shouldn’t be anybody he cared about.  That would be unjust.  Mike knew the price of everything, by the way.

In an odd way, McKenna’s perspective is completely understandable.  If he had integrity, he wouldn’t be able to sleep at night, which would render him a very tired prosecutor.  You see, it’s hard to be part of a system that fails.  Day in and out, we toil toward an end, knowing that some will wrongfully suffer no matter what we do.  As much as we care, our heads would explode if we couldn’t find a way to deal with the harsh reality and still go back to work the next day. 

For both prosecutors and defense lawyers, the saving grace is the belief that we must keep trying to do better, despite the system.  At least for most of us.  Not Tom McKenna.  He’s just fine with some collateral damage, because he “gets it.”  The difference is that he knows better than to succumb to the idealistic platitudes of Blackstone (and the millenia of other voices) expressing a vision of a system that prefers to let a guilty man go free rather than suffer collateral damage.  That’s for fools and children, according to McKenna.  It happens, and he’s okay with that.  It’s not that he wants it to happen, but only a fool like Bennett would call that a broken system.

While no one wants to see an innocent person convicted (and thankfully the error rate is extremely low), society has seen fit for a very long time to risk the small error rate, rather than create a system that would release many more factually guilty offenders and create very little deterrence for criminals. That there is much dissatisfaction with “The System” among defense lawyers is not surprising… no one likes losing a lot, and defense attorneys frankly lose a lot.

What is more disturbing is the approaching loss of public confidence that “The System” convicts and adequately incarcerates enough of the guilty

McKenna is quite right about his claim that the public thinks the system doesn’t incarcerate enough of the guilty.  After all, imprisoning a full 1% leaves another 99% free.  Having the highest incarceration rate in the world isn’t good enough.  After decades of being told that crime is rampant and instilling a sense of fear amongst the populace, who can blame them for wanting everyone they don’t know, or who just generally annoys them, to be incarcerated.  McKenna also knows the price of everything, just like my buddy Mike.

But he’s wrong about the innocents, and his claims are vapid.  He also assumes blindly accepts imprisonment is the cure for anyone who has broken the rules.  But most of all, he’s wrong in his denial our nation was founded upon principles, and they aren’t up for grabs by every two-bit prosecutor who thinks that basic American principles are a joke. 

If Tom McKenna rejects the notion that it’s better for a guilty man to go free than for an innocent man to be convicted, then he rejects America.  And he has no business stepping foot in a courtroom, and certainly no business being a prosecutor, whose duty is to do justice.  So Bennett is idealistic.  Me too.  But McKenna is a threat to American principles, and I’ll take idealism over a threat any day.