December 30th, 2013

Literary leftists: Clarence Darrow, free will, and poetry

When I was young I came across this book of courtroom speeches by Clarence Darrow. Although I was only about eleven years old it enthralled me, and I think it was one of the reasons I ended up going to law school not all that many years later.

So I came to law from a literary angle, because to me Darrow’s speeches were thrillingly eloquent. I knew nothing of his politics, and very little about the law itself. But he was an old-school leftist of the hard-nosed-crossed-with-bleeding-heart variety (if that makes any sense). And boy, could he talk!

I had first come across Darrow in a fictionalized version through the play “Inherit the Wind,” but shortly afterward I became interested in learning about the real thing. Thus, the book. His closing argument in the Leopold and Loeb murder trial was particularly memorable because it dealt with such strange and horrific facts: the cold-blooded murder of a 14-year-old boy named Bobby Franks by two older teenagers who came from fabulous wealth and who were both considered geniuses. Their motive seemed the strangest of all: besides implied thrill-seeking behavior, they thought they were supermen who could commit the perfect crime, a la Raskolnikov (although there’s no indication that they’d read that book—which might have acted as a deterrent—they in fact had read and been influenced by Nietzsche).

The country was clamoring for Leopold and Loeb’s execution, and Darrow had the unenviable task of pleading for their lives to be spared. They had already pled guilty, so it would have been unusual to have executed a murderer under those conditions, but the crime was so heinous and the trial had become so notorious (the first so-called “Crime of the Century”) that their execution was a very distinct possibility. In his subsequently-famous summation before the judge (the murderers had avoided a jury trial by pleading guilty) Darrow spoke for twelve hours.

Looking back now at his speech now with the perspective of an older person rather than the child that I once was, I am again struck by Darrow’s eloquence, but also by how much he focuses on the idea of determinism as opposed to free will, and by his world-weariness:

Why did they kill little Bobby Franks? Not for money, not for spite; not for hate. They killed him as they might kill a spider or a fly, for the experience. They killed him because they were made that way. Because somewhere in the infinite processes that go to the making up of the boy or the man something slipped, and those unfortunate lads sit here hated, despised, outcasts, with the community shouting for their blood. Mr. Savage, with the immaturity of youth and inexperience, says that if we hang them there will be no more killing. This world has been one long slaughterhouse from the beginning until today, and killing goes on and on and on, and will forever….

I know how easy it is to I talk about mothers when you want to do something cruel. But I am thinking of the others, too. I know that any mother might be the mother of little Bobby Franks, who left his home and went to his school, and who never came back. I know that any mother might be the mother of Richard Loeb and Nathan Leopold, just the same. The trouble is this, that if she is the mother of a Nathan Leopold or of a Richard Loeb, she has to ask herself the question: “How come my children came to be what they are? From what ancestry did they get this strain? How far removed was the poison that destroyed their lives? Was I the bearer of the seed that brings them to death?” Any mother might be the mother of any of them. But these two are the victims.

No one knows what will be the fate of the child he gets or the child she bears; the fate of the child is the last thing they consider.

I am sorry for the fathers as well as the mothers, for the fathers who give their strength and their lives for educating and protecting and creating a fortune for the boys that they love; for the mothers who go down into the shadow of death for their children, who nourish them and care for them, and risk their lives, that they may live, who watch them with tenderness and fondness and longing, and who go down into dishonor and disgrace for the children that they love…

Darrow goes on to describe the stupidity of the perpetrators despite their academic brilliance—their failure to take even the most elementary precautions (for example, they killed the boy in their car in the middle of traffic) as evidence that they’re crazy.

I have to say he has a point:

They get through South Chicago, and they take the regular automobile road down toward Hammond. They stop at the forks of the road, and leave little Bobby Franks, soaked with blood, in the machine, and get their dinner, and eat it without an emotion or a qualm.

I repeat, you may search the annals of crime, and you can find no parallel. It is utterly at variance with every motive, and every act and every part of conduct that influences normal people in the commission of crime.

Even sociopaths usually have more instinct for self-preservation than that, although just as little conscience (evidence of their later lives points to the probability that Loeb was a sociopath but Leopold was not, a combination that is not unusual for criminal duos).

Darrow’s argument was not only one against giving Leopold and Loeb the death penalty. It was really an argument against the death penalty itself, and against retributive justice and capitol punishment in general:

If these two boys die on the scaffold, which I can never bring myself to imagine, If they do die on the scaffold, the details of this will be spread over the world. Every newspaper in the United States will carry a full account. Every newspaper of Chicago will be filled with the gruesome details. It will enter every home and every family. Will it make men better or make men worse? I would like to put that to the intelligence of man, at least such intelligence as they have. I would like to appeal to the feelings of human beings so far as they have feelings– would it make the human heart softer or would it make hearts harder?

It goes on and on, and on and on. The entire address, long as it is, has the cadence of poetry, but it ignores the other side of the argument: that some murders are so heinous, some victims so innocent, that the crimes call out for the death penalty as a way to register the gravity of the act and the depth of society’s outrage.

Darrow almost seems to be arguing against free will in general:

…[I]ntelligent people now know that every human being is the product of the endless heredity back of him and the infinite environment around him. He is made as he is and he is the sport of all that goes before him and is applied to him, and under the same stress and storm, you would act one way and I act another, and poor Dickey Loeb another.

Darrow is arguing for a system of law in which mercy is stronger than justice, or at least one in which mercy is redefined:

I do not know but what Your Honor would be merciful if you tied a rope around their necks and let them die; merciful to them, but not merciful to civilization, and not merciful to those who would be left behind. To spend the balance of their days in prison is mighty little to look forward to, if anything. Is it anything? They may have the hope that as the years roll around they might be released. I do not know. I will be honest with this court as I have tried to be from the beginning. I know that these boys are not fit to be at large. I believe they will not be until they pass through the next stage of life, at forty-five or fifty. Whether they will be then, I cannot tell. I am sure of this; that I will not be here to help them. So far as I am concerned, it is over.*

I wrote that Darrow spoke poetically, but he also quoted poetry with some frequency in his summations. In addition, it turns out that Darrow was himself the subject of poetry; one of his law partners was the poet/lawyer Edgar Lee Masters, of “Spoon River Anthology” fame. Masters wrote three poems about Darrow, the most famous of which is this:

This is a man with an old face, always old…
There was pathos, in his face, and in his eyes.
The early weariness; and sometimes tears in his eyes,
Which he let slip unconsciously on his cheek,
Or brushed away with an unconcerned hand.
There were tears for human suffering, or for a glance
Into the vast futility of life,
Which he had seen from the first, being old
When he was born.

Darrow once gave a talk (text here) where he discussed poetry, including anecdotes about Thomas Hardy and A. E. Houseman, both of whom he had met (through Masters?), as well as Omar Khayyam and Edward FitzGerald (whom he had not met). The address also contains a lengthy passage arguing against the existence of free will, which seems to have been a particular bête noire of Darrow’s. He quotes “The Rubaiyat”:

But helpless Pieces of the Game He plays
Upon this Chequer-Board of Nights and Days:

That’s a poet speaking; whether it be Khayyam or Fitzgerald or some combination of the two. But no system of law, however merciful, can actually believe we are helpless pawns and still function as a legal force.

Darrow contrasts Khayyam/Fitzgerald’s fatalism with Henley’s “Invictus,” that defiant ode to individual responsibility for which he has contempt.

As for me, I believe that we human beings are responsible for the choices we make during our lives here on earth, and that no system of law can possibly ignore that, and that exceptions should be rare and only under extreme circumstances. The rest is—as Thomas Sowell described so well in his book The Quest for Cosmic Justice—a doomed and dangerous attempt to produce cosmic justice here on earth, rather than earthly justice.

But I also know that one of Darrow’s favorite poems, Houseman’s “The Culprit,” which speaks in the voice of a boy (or man?) condemned to death by hanging (and which I first read as a young teenager myself) is unutterably and chillingly sad, and expresses some profound and complex truth about humanity:

The night my father got me
His mind was not on me;
He did not plague his fancy
To muse if I should be
The son you see.

The day my mother bore me
She was a fool and glad,
For all the pain I cost her,
That she had borne the lad
That borne she had.

My mother and my father
Out of the light they lie;
The warrant would not find them,
And here ’tis only I
Shall hang on high.

Oh let no man remember
The soul that God forgot
But fetch the county kerchief
And noose me in the knot,
And I will rot.

For so the game is ended
That should not have begun.
My father and my mother
They have a likely son,
And I have none.

Darrow once said, “Inside every lawyer is the wreck of a poet.” For most people who know lawyers, that might be an incomprehensible sentiment. Of Darrow himself, it was true.

[NOTE: *Only Leopold lived long enough to demonstrate what happened when he reached the next stage of life, as Darrow had speculated. Loeb was murdered in prison in 1936 (twelve years after the crime), but Leopold got out on parole in 1958 and lived a life that seems (at least, as best we can tell) to have featured repentance and good works.]

47 Responses to “Literary leftists: Clarence Darrow, free will, and poetry”

  1. DNW Says:

    ” But no system of law, however merciful, can actually believe we are helpless pawns and still function as a legal force. “

    Succinctly stated. Nor can it express any genuine, that is to say objectively incumbent or obligatory moral sentiment in the form of law. It can express only the passing and randomly formed tastes of pointlessly existing things, which for awhile make ultimately pointless rhetorical noises about their pointless discomforts, before pointlessly passing away.

    Makes one wonder why they feel entitled, or seem to indicate that they feel entitled to, intra-specific consideration directed toward themselves?

    Perhaps somewhere there lurks in the back of some nihilistic progressive philosopher’s mind, a treatise they are willing to share with us on the ontological primacy of the inexplicable and mindless urge; the pointless workings of desire machines.

    Oh wait, a couple of French “philosophers” have already released one. I think. LOL

  2. Don Carlos Says:

    Ah yes, the law and its lawyers. As in, “If you can’t attack the evidence, attack the witness.” And lawyering is about debating, about winning and losing debates, with precedent ranking higher than truth or justice; in litigation, at least, which I assume lawyers view as the highest form of lawyering.

    And when all else fails, a fall-back for tyrants and other moral relativists like Darrow: talk the oppo. into submission. Twelve hours indeed; all that trapped poetry just a-bubbling out. A gusher!

    PS: I have not checked but it is reasonable to expect Darrow got very well paid for ‘saving’ L&L.

  3. Ann Says:

    According to his Wikipedia entry, he said this in the November 18, 1915 edition of the Washington Post: “Chloroform unfit children. Show them the same mercy that is shown beasts that are no longer fit to live.”

    Nice guy.

  4. NeoConScum Says:

    The ‘Big Bill’Haywood trial in Boise, Idaho in Spring-Summer of 1907, with the defense spearheaded by Darrow, was really something. I was immersed in it for nearly 2-years in the early ’70s. His summation there, too, was absolutely stunning. Haywood was freed when all the money would have been bet he’d receive a Guilty with death penalty verdict/sentence.

  5. Geoffrey Britain Says:

    When considering the verdict in a murder trial, anyone who speaks only of mercy and not equally of justice is unconcerned with the truth of the matter.

    The death penalty is not retribution nor is it punishment, it is proportional consequence. When a society declares that we shall not reap what we have sown, it declares its opposition to the reality of proportional consequence. It declares its opposition to every action having an equal and opposite reaction.

    It is not society that determines the proportional consequence but the perpetrator themselves. Leopold and Loeb nullified Bobby Franks right to life and in so doing, freely and willfully forfeited their own right to life.

    We forfeit our claim to our unalienable right to life, when we unilaterally, permanently and unjustly take away another’s right to life.

    Leopold got out on parole in 1958, having spent 34 years in prison. That is a long time but it is not a lifetime. Bobby Franks received a lifetime sentence without the possibility of parole.

  6. vanderleun Says:

    Ah, yes, the great and eloquent lawyers. God bless them all, every one. If not for them we might mistake them for something other than liars made proficient.

    “. Will it make men better or make men worse? ”

    It’s not meant to do either. It is meant to make killers dead.

  7. M J R Says:

    neo and others who may be interested –

    Only slightly off-topic . . .

    It’s eye-opening the extent to which the play/movie “Inherit The Wind” deviates from what actually took place all those years ago. It’s a little long, but I strongly urge those who may be interested (including neo) to read it all.

    The Truth About Inherit the Wind
    Carol Iannone
    First Things
    February 1997

    http://www.firstthings.com/article/2007/12/002-the-truth-about-inherit-the-wind–36

  8. MissJean Says:

    Nowadays, Darrow might use the “affluenza” excuse. Loeb’s father was Albert Loeb, owner of Sears & Roebucks and Leopold’s father was a wealthy, well-connected doctor. Mr. Loeb closed his farm in Charlevoix, Michigan, after the trial. My great-aunts and -uncles said that he spent most of his fortune keeping his son from the gallows.

    Darrow today would probably use their sexual relationship, too, to show how they were responding to being bullied at the University of Michigan by a fraternity that attempted to “out” them. Then again, with today’s forensics, it might be easier to prove that their victim was sexually assaulted.

    The poem about Darrow grates on my nerves. An old man crying over the evil of the world, at the same time defending its doers. The same hypocrisy is in Ann’s quote; he defended people against the death penalty but advocated it to victims of the circumstances of their birth.

  9. FreeLiveFree Says:

    Hello, first time poster.

    Darrow seems to be like Obama. He uses pretty words to make people think reality is different than it is.

    The interesting thing about Loeb and Leopold is that they thought they could pull off the perfect crime. Then they botched it. There’s a lesson about intellectual arrogance in the whole tragic thing. They thought they were above the rules of morality and smart enough to get away with anything they did. They were wrong on both accounts. (Though they should have gone to the gallows.)

  10. Mr. Frank Says:

    As we say in the South, some people just need killing.

  11. rickl Says:

    Sounds like Darrow was a likely supporter of eugenics, which was all too common at that time.

  12. Oldfyer Says:

    For anyone wrestling with the issue of the death penalty, I think Geoffrey Britain makes clarifies the issue about as well as I have ever seen.

  13. neo-neocon Says:

    vanderleun:

    You don’t need the law to make killers dead. That can be done without it.

    The law decides when it’s appropriate and when not for the state to make killers dead. Not all murderers get the death penalty, nor should they.

    And yes, the death penalty is most definitely designed to make killers dead. It has other goals, too, however, at least that’s what’s often argued by proponents. The goal of deterrence is one, which could arguably be defined as making people “better”—or at least better-behaved.

  14. BurkeanMama Says:

    So we have Darrow to thank for the criminal as victim of uncontrollable forces horror. His idea would reach fruition in the 70s and we would see blood flow in the streets from the criminals treated with mercy. A lot of children would die as a result of this philosophy. Darrow was more despicable than his clients.

  15. neo-neocon Says:

    Geoffrey Britain:

    You write, “When considering the verdict in a murder trial, anyone who speaks only of mercy and not equally of justice is unconcerned with the truth of the matter. ”

    Not necessarily unconcerned. Rather, a defense lawyer (such as Darrow) in the case is focused on the task of the defense, which is to present the best possible argument for the defense while staying within the bounds of truth. In our adversarial system, it is the job of the prosecution to present the best possible case for the prosecution, while staying within the bounds of the truth. (I am talking the ideal here; obviously, sometimes either side falls short of either “best possible” or “truth”).

    If they both perform their task, the idea is that the truth will out and the stronger argument win. Neither side is supposed to be presenting the arguments that favor the other side; that would be negligence or worse.

    Darrow was presenting the best possible argument he could for his side, the defense. You don’t have to agree with his argument, but that’s what he was doing. And I was pointing out that if you completely buy his argument, no one is responsible for anything, and the law wouldn’t be able to function.

  16. neo-neocon Says:

    Burkean Mama:

    Darrow certainly didn’t come up with the idea himself. But he was a very strong proponent of it.

    Mercy has a place in the law. The problem, the task, is to find the right balance for it. And the idea of diminished criminal responsibility has a place in the law, as well (for example, for bona fide delusional mental illness, which should preclude the death penalty in some cases).

    Leoopold and Loeb actually presented a real dilemma for the law and for the death penalty. For example, they were very young. One (Leopold) was not a sociopath and was under the sway of the other (Loeb) who was a sociopath. Were they mentally ill? Probably not. But they had pled guilty, and that usually means a person does not get sentenced to death. Why should they have been the exception? I happen to think they got the right sentence in this case. The real question for me is whether Leopold should have been let out after 33 years. I lean towards saying “no,” although he ended up living a fairly exemplary life after he was released.

  17. Ymarsakar Says:

    Execution, imprisonment, redemption/atonement, exile.

    Take your pick.

    Although state enforced execution has a certain tendency to produce authoritarian corruption in that the people who want the execution often aren’t the ones that have to pull the trigger. That’s similar to a welfare state where the people getting the most money from papa government are not the same ones producing this abundance of wealth to distribute around. Whenever possible, power should be downgraded and routed back to the roots, so that the people who most want or need the executions, should be the ones doing them. If truth and guilt are variable, then so is motivation. If a person isn’t really motivated to do something, he probably doesn’t need it.

    Also, it’s hard to say why society or humans should take any extra concern for those who are “made” to become enemies of society. Do we hold trials over why certain dogs are put down for having rabies or not having rabies? Are PETA tried for every single instance of when they executed various pets they don’t want to feed?

    If a person is said to be “made”, then the amount of concern that is necessitated to see whether they should be destroyed or not should be equalized. If a person is said to have free will and soul, then the concerns should equal that level of value.

    Sociopaths, being free of societal authority, can’t really say after the fact that something made them do it. They are free from rules for a reason. Otherwise, they wouldn’t have been able to do what they did or to order others to do what they did.

  18. Don Carlos Says:

    With respect, Neo, you are arguing like a lawyer. Since you were so-educated, I guess you can’t help it.
    Arguing is not the same thing as reasoning; arguing is about winning and losing, not truth per se, and arguing in my view is what litigations and lawyers are all about.

  19. neo-neocon Says:

    Don Carlos:

    Actually, I always have argued like a lawyer. And by “always,” I mean from very very early childhood. Some of my earliest memories involve me talking, and people saying to me, “You sound just like a lawyer!”

    I’m not so sure that was a compliment :-). But it seems to be a very strong trait in me and has nothing to do with my legal education, since I’m talking about when I was three years old. In fact, I went to law school because of this trait, not in order to learn it.

    Since I am not a lawyer, however, I don’t have to “argue” a side I’m hired to defend. I am free to use what I consider to be reasoning, which I do every day on this blog (or try to do).

    However, unlike many people with a kneejerk (or in some cases, justified) dislike of lawyers and what they do, I respect the adversarial legal system and can think of no better way to try cases, despite its flaws. And I think many many people don’t understand our legal system at all.

  20. baklava Says:

    Neo, If I may ask… What do you think would possibly have been a candidate that wasn’t a Democrat that paglia could vote for.

    You recently wrote about her inability to vote for Romney and I just wondered.

  21. waitforit Says:

    Responsibility

    Shite! The hand is held against me.
    I know there is fear or love.
    Cried and ran, but she,
    only, found me,
    again.

    Cripes! Put up against the bidder.
    I am running out of time.
    Fried and banned, but he
    said I should try,
    again.

    Troops! Make me not the decider.
    I will only ruin life.
    And I would, but they
    broke through my lie,
    again.

  22. neo-neocon Says:

    baklava:

    I’m not at all sure that Paglia would have actually voted for her had she been nominated, but Paglia has been a big Sarah Palin booster.

    That’s the only one I can think of offhand.

  23. PapayaSF Says:

    For a dark chapter earlier in his career, see The People v. Clarence Darrow: The Bribery Trial of America’s Greatest Lawyer.

  24. Gary Says:

    To me, the no-free-will defense is a loser, or at least should be, especially in death-penalty cases.

    OK, Mr Defense Attorney: you say your client is a mere product of forces beyond his control, an automaton. Except unlike the other automatons, your automaton has the unfortunate trait of murdering people (or destroying robots, if you insist). Fine. This makes the decision easy:
    1) Your robot is disrupting society and poses a danger to the rest of us, and thus must be removed to protect everyone else.

    2) Since your client has no more humanity than a robot, his actions being no more meaningful than those of a toaster, it should make little difference if we decide to hit the OFF switch. Or, to change metaphors, your client is an uncontrollable rabid dog that needs to be put down. If it makes you feel better, you can think that our actions, like everything else, was merely the pre-determined result of a complex of forces.

  25. Richard Saunders Says:

    When I was in law school, I learned “the adversary system is the greatest engine for the production of truth ever devised.” After a few years in practice, I learned that the adversary system is the greatest engine for finding out who is the better lawyer ever devised.

  26. neo-neocon Says:

    Richard Saunders:

    The two are not mutually exclusive.

    The adversary system is the worst courtroom method for finding the truth, except for all the other courtroom methods.

  27. baklava Says:

    I wonder if she voted for the Mccain / Palin ticket when she had the opportunity.

  28. Gary Says:

    On the Death Penalty

    1) Those who are against it think of a life sentence without parole as a nice, safe compromise for heinous killers. Except they conveniently ignore the fact that murderers sometimes kill other prisoners or guards while locked up, and occasionally escape. Some who have the wherewithal can order murders outside prison. There’s no risk-free choice.

    2) The same people who can detect the smallest wisp of causality impairing a murderer’s free will seem totally insensitive to the possibility that some murderers might be affected by the prospect of being put to death and thus less likely to kill.

    Here’s a thought experiment. Imagine a state in which murders committed on odd-numbered days are subject to the death penalty, but not those committed on even-numbered days. Do you really think the same number of murders would occur on odd and even days?

  29. waitforit Says:

    As Justice Scalia pointed out in his dissent on Windsor, there must be a controversy in order for the Court to engage. This requirement limits the Court to common law and not legislation.

    The U.S. Supreme Court ignored that requirement in Windsor and “enthroned” themselves at the top of our political system. Windsor was something new: not only the Executive but the Judiciary decided they should rule the people.

    The people, being mostly ignorant, have agree. The Legislature, that branch which is not equal but primary according to our Constitution, has abdicated. Thus, the “screwed-down-look-of-tea-party-conservatives-which scares the Establishment. We want the people to rule.

    We want to restore balance and give to the Legislature its weighted role according to the Constitution.

  30. Ymarsakar Says:

    The modern US system is not about a rival of equal, competing individuals. Japan has the concept of a “rival”, that pushes both sides to higher success.

    But the US legal system isn’t actually using a competitive system. It’s more of a cooperative system, which is the reverse of the intent.

  31. Mike Says:

    While I use to admire the man, I sort of remember reading an article about him several years ago about how he thought “the ends always justified the means.”
    I think the article was about his co-worker or lover and how it was in his tool bag to buy off judges or juries. Sort of soured me on his idealism and desire for justice. A Google search did not turn up the article but is did turn up his obituary and this comment about the trial I was thinking about.

    “Subsequently Mr. Darrow was indicted–with the McNamaras off to San Quentin prison– for attempting to bribe a juror. Franklin testified that Darrow had given him the $4,000 for bribery purposes, having ostensibly procured the money from Job Harriman. ”

    Assuming the associate had no reason to lie, they stated that he avoided this rap by paying off the judge in his case. Guess the more things change the more they are the same with lawyers and the “end justifying the means.: :-(

    His Obituary:

    http://www.nytimes.com/learning/general/onthisday/bday/0418.html

  32. Charles Says:

    Put the wrong man in prison and society can try to repay him when he is proven innocent. But, the death penalty cannot be undone. Which is the reason I am generally against it. However . . .

    “. . . it ignores the other side of the argument: that some murders are so heinous, some victims so innocent, that the crimes call out for the death penalty as a way to register the gravity of the act and the depth of society’s outrage.”

    Neo, I think you could have given Darrow a run for his money. That paragraph sums up so well the argument for the death penalty. Yes, there are some crimes so heinous that I want to pull the switch myself; But, I know I would have to stand in line behind thousands of others who feel the same way.

    Which leaves me with the conclusion that “I’m against the death penlaty; but, I’m also for it!” (it is a good thing that I’m a nobody who doesn’t make or enforce policy then, eh?)

  33. NeoConScum Says:

    GeoffreyB., 5:33pm: AMEN. The death penalty is simple proportionality. Baa-Daa-Bing.

    I well remember the weeping lefties(Hello, Mike Farrell)outside San Quentin before Tookie Williams’ Dec. 13, 2005, Lethal Injection. ‘Cuz the Took-Man had (cough) redeemed hisself by writing kids books from death row. Got it? Butchered a Korean store owner and his family, but, hey, everybody makes, ya know, mistakes,’Yo. Oh, and he co-founded The Crips,’Yo.

  34. Richard Saunders Says:

    @Neo – The adversary system is the worst courtroom method for finding the truth, except for all the other courtroom methods.

    I’m not so sure about that. Are we sure that the adversary system produces “better” justice than the civil law system with its investigating magistrate?

    Nor am I sure we couldn’t invent a better system. How about a system where a panel of experts objectively evaluate the evidence and conclude the probability that the defendant committed the crime, then the lawyers come in and argue from that point. What does Johnny Cochran say if the panel determines “There is a 97% probability that O.J. Simpson murdered his wife and Ron Goldman?”

  35. neo-neocon Says:

    Richard Saunders:

    I don’t see why that would be a better solution. I think the biases of these “objective” members of the panel would come into play even more forcibly with that system.

    As I said, I think that the present system, however flawed, is the best I can think of. That doesn’t mean it couldn’t use some changes—for example, I think that actual innocence should have more weight in the appeals process.

  36. Ymarsakar Says:

    But, the death penalty cannot be undone. Which is the reason I am generally against it. However

    Which is a reason not to let the authorities just kill anyone they like, such as Tea Party “criminals”.

    Whereas people who like to feel happy about having clean hands can say, “well, life imprison isn’t so bad, if he is innocent we’ll just pay him off (using other people’s money) after 50 years”.

  37. PapayaSF Says:

    @Mike: Above, I posted a link to a book about Darrow’s bribery trial.

  38. Ymarsakar Says:

    The Leftist members high and low, are never what they claim they are. Hypocrisy is the first and only check you need against their background. If they pass that test, they can be trusted until they demonstrate otherwise. If not…

  39. Tonawanda Says:

    Lovely post and many interesting responses.

    Non-Leftists ought to be careful about the retributive attitude so many take when it comes to law enforcement. The Left is using that attitude to their benefit. If you don’t think so, good luck getting any sympathy when dealing with law enforcement at all levels and in all guises.

    Things really are very often more complicated than they might appear.

    Our justice system once brilliantly allowed for the complexity of human life. It has become increasingly a system where if somethings happens you’re cooked, because something happened.

    When someone does not know the facts of a case but feels free to insist on the most extreme penalty, as so often happens nowadays in our society, we are playing into the mindlessness the Left requires to make us all totalitarian dupes.

  40. Elaine T Says:

    I’d heard of Darrow for years, but my first real look at him came in the memoir FINAL VERDICT written by the daughter of the lawyer who defended him in the bribery trial. (That lawyer, Earl Rogers, supposedly was the inspiration for Perry Mason, BTW.)

    Neither she nor her father cared for Darrow and the impression I came away with was that for Darrow ends justified means, and deaths were just broken eggs in his omelet. It was hard to take him seriously as a Great Defender after that. Besides, they also noted, that he had clients plead guilty. They had their clients plead innocent and usually won. Even with the murder victim in the courtroom testifying against her husband.

    Fascinating stories in that book.

  41. NeoConScum Says:

    Tonawanda… “…you’re cooked because something happened.” Huh? WTH does that mean?

  42. Tonawanda Says:

    Tonawanda… “…you’re cooked because something happened.” Huh? WTH does that mean?

    It means that there is little to no chance of having an outcome in a matter which fairly corresponds to the underlying circumstances because the elements of the offense have been met, period.

    It means that the actual harm of the offense bear little relationship to the objective negative consequences of the prosecution.

  43. Richard Saunders Says:

    Neo: so I assume you’d also want factual guilt to play more of a role in appeals as well, correct?

    Tonawanda: I’m still not sure what your last comment means, but as to people who don’t know the facts of the case but insist on the most extreme penalty, I think there is always an unstated caveat, that the defendant did in fact commit the crime.

  44. Ymarsakar Says:

    I think he means it is fixed in some fashion, like Democrat elections or Republican primaries. Like “cooked books” in finance supported Democrat power players.

  45. Snackeater Says:

    On a slightly different note, your post brought back some childhood memories. I grew up in a small town near Peoria, Illinois and remember an aunt warning us not to accept rides from strangers because we might end up like little Bobby Franks. Even though that event had occurred 10 years prior to her birth, she had probably been similarly admonished as a child and thought it was effective.

    I also remember going on a school field trip to Lewistown, Illinois, the town where Edgar Masters grew up and his inspiration for Spoon River Anthology. We went to Oak Hill Cemetery and then visited Dixon Mounds. Dixon Mounds was an American Indian burial ground that had been unearthed and at that time, still displayed the skeletal remains of recent inhabitants. Quite a contrast from Oak Hill.

  46. neo-neocon Says:

    Richard Saunders:

    No. Factual guilt would open up double jeopardy (as you no doubt are aware). If someone is found not guilty, there is no need to appeal, so factual guilt would not come into play in any appeals process except through double jeopardy—the prosecution would have to be allowed to appeal (or to retry the case).

    Factual guilt is certainly relevant in an original trial, as is factual innocence. My earlier statement applied to the appeals process, as I believe I made clear.

    To allow double jeopardy would be undermine the underpinnings of our justice system. To allow actual innocence to be considered under certain limited and very clear circumstances in appeals cases, but slightly more often than it is allowed to be considered today, would not do that. Obviously, we can’t allow cases to be completely retried; that would wreak havoc and entirely undermine the justice system as well.

  47. Igotbupkis, "Not At Home For The Holidays" Says:

    }}} It was really an argument against the death penalty itself, and against retributive justice and capitol punishment in general

    I don’t argue in favor of “retributive justice”, excepting its value as a palliative for the victims and their heirs/loved ones. A minor thing but not a value to be ignored, either.

    No, in the case of something like this, you execute them like the mad dogs they are.

    Their actions belie the notion of them as humans and not mad dogs.

    You execute them not in revenge, in the most painful way possible, or even the most “comparable” pain/way possible..

    You remove them from the sphere of life for the future threat they represent against all of humanity, as any mad dog does.

    It behooves you to do this in the least painful way possible.

    That is how humans execute mad dogs.

    End of story.

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About Me

Previously a lifelong Democrat, born in New York and living in New England, surrounded by liberals on all sides, I've found myself slowly but surely leaving the fold and becoming that dread thing: a neocon.
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