ONCE OVER LIGHTLY BUT NOT POLITELY My title today is borrowed from the same source I got the one for the website -- the sports column that Dan Parker used to write in New York eons ago. He would round up his pet aversions and deal with them all at once, knowing that there would always be some left over for future mention. He was right -- he never ran out of targets, and people like me who start websites for the purpose of improving the world aren’t likely to either. As you will see. Let’s start with the judge out here on Long Island who has just thrown out a police search of a car that produced a couple of vials of drugs after the driver was stopped for drunk driving. The judge decided that the Constitution had been raped because the police department involved had not created a procedure for searching cars which had a "rational basis" and "limited the officer’s discretion". How about that? No "procedure"? Too much "discretion"? What kind of procedure do you follow to search a car? You search it, right? Well, no, you follow, what, a set of steps, a book of rules, a mathematical formula, a hunch, a tip, tell us please. And what is this discretion business? What kind of discretion do you need to search a car? What is the lady talking about? What she appears to be talking about is getting herself noticed and getting a name for herself by putting a spoke in the wheels of justice through her gift for nitpicking. The right answer for Nassau County would be to tell her they don’t know how to write a procedure that would satisfy her and would she do it herself please, so they can put it into effect? I can see it now: Step One -- Proper Trunk Procedures OPENING THE TRUNK a. Depress latch on floor next to driver’s seat. b. If latch is inoperative, open trunk with a key. c. If key inoperative, smash trunk open with a sledge hammer. If California can get rid of a governor, why can’t New York do it with a few judges? ��� The presumption of innocence is with us again. It’s the beginning and the end of the legal knowledge of a lot of television wiseguys who trot it out with great fanfare whenever they have an arrest to report in a case of serious crime. All us knuckleheads listening have to be warned against our primitive instinct to leap to conclusions and get out the rope whenever an apparently guilty party is taken into custody in one of these cases. If not, we are likely to storm the jail, drag out the culprit and attach him to a tall tree without the formality of a trial, much less an appeal or a clemency hearing or a commutation of his sentence or a pardon or a parole. Our betters display their superior virtue by deprecating this kind of action and continually exhorting us to presume everyone innocent until proven guilty. Everyone, including the guy with the smoking gun standing over the body of his victim. Mustn’t get carried away, you know. We haven’t heard his side of it yet. The TV enthusiasts for presuming everyone’s innocence do not seem ever to stop to consider the reasons why some people refuse to do it. They are in the habit of laying it down as a universal rule, applicable to everyone everywhere all the time. It doesn’t seem to occur to them that presuming everyone’s innocence means the nullification of all laws. What about the victim of a crime? Does he presume? The witnesses. Do they? The police. Them too? The jailers. How about them? They have no right to hold a man they presume innocent. The judge at arraignment. Does he have to release him or can he hold him for trial? The prosecutor. Does he…? Well, you get the picture. The presumption of innocence has its limits, thank God. Not that you’d ever know it from the legal "experts" on the six-o-clock news. Having exhausted the categories of non-presumers I come now to the people who actually do have to presume defendants innocent when brought before them. They are the members of the trial jury, whom the law requires to dismiss all presumptions from their minds and to consider only the facts of the case that is given to them to decide. They are the ones, and besides the judge in the case, the only ones, who must presume that even Hannibal Lecter is innocent if he is to be tried by them. I first heard this simple statement of the law in 1969 at Lincoln Center in New York, when I was assigned to cover a speech to lawyers made by Warren Burger, then Chief Justice of the Supreme Court. He was annoyed by all the loose talk going around about the presumption and wanted to do something about it. He did, but ignorance is hard to overcome permanently. Personally I practice the presumption, not because some TV airhead tells me to, but because it’s common sense. I simply don’t know enough about the facts of cases reported in the news to make a final judgment on them. In my life I’ve seen a number of ironclad cases fall apart at trial. So I keep an open mind. So do most people. Most of the time. There will always be cases where one’s special knowledge of the background and the circumstances will enable an opinion to be formed even without any personal participation in the particular incident sub judice. When Billy Martin was alive, for instance, after his fourth or fifth barfight people stopped presuming that someone else always started them. Instead they began presuming that Billy’s company, though stimulating, was to be avoided at all costs. This is called learning by experience and is a better basis for decisions than even the most sacred legal presumption. ��� Finally, to finish up my campaign to reform our courts, let’s consider the matter of judges’ imaginations and how they figure in the decisions that strike fear into the hearts of the citizenry. You see, judges have the power to "deem" things to be something other than what they are. They do this when they find a set of facts that strike them as not what they should be in an ideal world. No problem! They simply "deem" that the facts aren’t the facts, but the visions dancing in their heads are. In this way you can have a perfect solution to every problem, with liberty and justice for all. This is true, but when you substitute one set of facts, imaginary or not, for another set you didn’t like as well, you reverse the positions of the people involved. The losers under one set of assumptions become the winners under another, and vice versa. This is what happened to me. I had a dispute with an employer, so instead of working for the company, I spent my time suing them. I collected Social Security during this time. Subsequently I won my lawsuit and collected back pay. The hitch was that the government decided that all the back pay I got put me over the Social Security earnings limit for the whole time I got my benefits. Result: Pay back the Social money. How’d this all happen? Why would nobody listen when I told them that the so-called backpay was really nothing but compensation for the wrong inflicted on me by the company, and besides how can you call money "pay" when I did nothing to earn it and in fact didn’t do a stroke of work for my (ex)-employer during the whole time it was supposed to cover? Well, you see, son, the Supreme Court’s involved here. Back in 1946 the court had a case like yours involving a bunch of young fellows who sued for unlawful discharge from their jobs and won and were reinstated with back pay. They complained that they had missed several years of Social Security credits while they were laid off, so the Court sympathetically decided that the layoff years were really working years and they and their employer should have been making Social Security contributions all that time. But that was all right, they could do it now and it would all be the same as if they had never left their jobs. They were "deemed" not to have done so. Not bad, for those young men who had never collected any Social Security and so owed nothing back. Not good, for people like me who collected it in good faith and then got hijacked by the government because some judges "deemed" some facts to be something other than what they were. I know it’s supposed to be liberating to turn your imagination loose and let it wander where it will. You know what I say to that? You don’t? It’s better that way.
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