Thursday, November 19, 2009

Trials in which "Failure is not an option"

With some frequency, I find myself grateful for the fact that I don't practice criminal law.  I have some basic knowledge of it, though, and have tried civil cases, to judges and juries.

One of the few things I know about criminal law in the U.S. is that prosecutors face an extremely heavy burden of proof; that being, of course, to establish guilt beyond a reasonable doubt.  One of the things I know about juries in civil trials (which of course involve a lesser burden of proof) is that they can be unpredictable.

Now, there is disagreement over whether or not those we call the "9/11 defendants" should be tried in a U.S. District Court or a military tribunal.  An argument may be made that the rights accorded American citizens under our criminal law should be restricted to those who can say civitas Americanus sum. But let's assume (that is to say, I will) that the Obama administration's determination they should be tried in District Court is appropriate.  If that is the case, should the Attorney General be making statements such as "failure [to convict] is not an option" and should the President be predicting that convictions are forthcoming, and the death penalty will be imposed (without prejudging the matter, of course)?

I think not.  Clearly, such statements give the impression that the outcome of the trials is preordained, an impression which those in authority are normally very careful to avoid, with good reason.  And, making such statements seems to fly in face of the supposed purpose for holding the trials in District Court, which appears to be to assure fair trials, and to induce the world to marvel at the impartial nature of American justice and its care for the rights of defendants, even loathsome ones (who will, we are assured, be convicted).

So, it seems appropriate to wonder just what the administration thinks it is doing, and whether it is trying to do something it cannot do--assure fair and impartial trials and assure convictions.  Already we see reference to "show trials."  The effort to please all in politics is futile.  It's likely this will result in trials which will please no one, and which will defy description.

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