In principle, to prove a citizen guilty of a crime a duly-registered prosecutor must provide due process of law and bring the case before a duly-constituted court of law which has personal, territorial, and subject matter jurisdiction in the matter before the bar. Then the prosecutor must prove to a jury of the citizen's peers that beyond a reasonable doubt the citizen knowingly, recklessly, intentionally, and willfully (mens rea) committed the crime which they are charged with and that a crime, as previously defined by statute, was intentionally committed (actus reus), and that no affirmative defense, e.g., self defense, exists for the citizen's actions.
These principles worked fairly well when laws were few and, presumably, more rational. But any resemblance between these principles and how the American "justice" system currently functions is almost certainly coincidental.
The major problem with the "justice" system is the sheer number and complexity of the laws generated by federal, state, county, and municipal legislators and commissioners. Most of whom presume they were granted omniscience upon their election and the Republic can only survive if they impose their religious beliefs, biases, and prejudices upon the serfs, oops, citizens beneath them.
It is impossible to know all the laws and their ramifications. At the time the federal Constitution was implemented there were only a few federal crimes, e.g., killing a federal judge, treason, etc. Today even the U.S. Attorney for the 10 th Circuit doesn't know how many federal crimes there are but estimates around 4,500. But ignorance of the law is no defense in court, even when it comes to vague, obscure, or densely-written laws.
In Colorado, a state of but 5 million residents, the legislature finds it imperative to pass about 400 new laws each and every year, of which the average citizen may be aware of one or two, but is unlikely to have read any of the acts. And that has been going on since 1876 with nary a respite. Colorado Revised Statutes now fill an entire bookshelf. And very rarely does the legislature recognize the error of their ways and repeal a law.
Then add in all the laws, regulations, and codes passed by Colorado's 64 counties and the many towns and cities in the state and, even with the Internet, a citizen is certain to violate many of these on a given day, typically one every few minutes if in public, driving, or even sitting at your computer.
And Colorado is a miniscule sample of the United States. Multiply this by the 50 states and bedlam is the result and enforcement a mainly a matter of chance, bribery, prejudice, retaliation, wealth, influence, or association rather than a systematic process of equal justice for all.
Then add to this stew the biases and prejudices of individual legislators, whose connection to reality is often tenuous at best, to include such nonsensical laws and prohibitions such as The War On Drugs, warrantless arrests, imposing their mad-hatter religious beliefs by force of law, and any other <http://www.dumblaws.com/>dumb laws small brains in big government can dream up. Now even dancing at the Jefferson Memorial results in arrests.
Decades ago Erin Pizzey wisely noted that: "Any country that has tried to create a political solution to human problems has ended up with concentration camps and gulags." With 2.2-2.4 million Americans presently incarcerated we now far outpace any other country both in total numbers and percentage of population incarcerated. And, unlike Soviet or other Communist gulags, inmates in American prisons are not typically put to productive work like mining and lumbering. In fact, once convicted and incarcerated, with few exceptions a citizen is effectively lost to society as a self-sustaining, productive individual.
Naturally, with it being impossible for a citizen to avoid breaking one or more of our innumerable laws on a daily basis, the "justice" system is inundated with criminal cases despite the fact that, as a matter of necessity, the laws are only selectively enforced. By 2009 Federal Bureau of Investigation (FBI) Uniform Crime Reports (UCR) indicate there were more than 10.5 million serious crimes in the United States. In the 50 years from 1960 to 2009 the crime index rate per 100,000 inhabitants increased from 1,887/100,000 to 3,466/100,000.
One distinctly measurable increase in "crime" stems from Nixon's War on Drugs in 1971. Following the passage of a series of draconian federal and state laws the crime rate quickly tripled from the 1960 level, peaking at 5,950/100,000 in 1980 and both the correlation and causation are clear.
Like the earlier prohibition on alcohol from 1919 to 1933, the War on Drugs has been an abysmal failure and the use of narcotics is more widespread now than before. Further, the percentage of our citizens incarcerated has risen from ~0.2% in 1970 to 0.8% in 2008 and is apparently still increasing. In 2008 1.5 million Americans were arrested for drug offenses. 500,000 were imprisoned.
There is little question that prohibitions always have, and will always increase crime rather than cure the intended "problem." But no legislator with a god complex has ever been deterred by logic and reason. Such laws also immeasurably increase the size and intrusiveness of government agents, which attorneys and bureaucrats love.
It is also well established that, in large measure, only the poor are arrested and incarcerated. The well-to-do are left undisturbed despite their known drug use. Additionally, prohibitions inevitably increase the price of the prohibited commodity while production costs remain relatively constant. As a result prohibited commodities become immensely profitable. Thus, the corruption of the legal system that invariably accompanies bad laws is quite evident in the drug trade.
Currently about half of all narcotic arrests involve marijuana. Despite over three millennia of human use that incontrovertibly demonstrates the usefulness and safety of this plant in a wide variety of medical and industrial applications, and the fact that currently 16 states have made the use of medicinal marijuana legal, our mad-hatter legislators still insist on wholesale convictions and incarcerations of our citizens for its use. Of course our "justice" system benefits financially from this insanity, which demonstrably increases crime and destroys public's safety.
A more recent example of ineffective and detrimental legislative insanity goes under the guise of Violence Against Women Act (generally referred to as VAWA). Draconian federal legislation was first passed in 1994 and in various forms by all states about the same time. Initially the laws were aimed at prohibiting violence against wives but have served, together with "no fault" divorce to deter men from marrying in large numbers. And no, I do not advocate or condone violence against women, or men for that matter. But today, for the first time in our history, households with married couples are a minority.
In discussing domestic violence it is critical to make a clear distinction between criminal behavior where a prosecutor might demonstrate both mens rea and prove actus reus and convince a jury of guilt beyond a reasonable doubt, and what is sometimes referred to as common couple's violence, or the arguments, shouting, and occasionally pushing and shoving that many couples go through at some point in their relationship, particularly young couples.
Available data indicate that criminal domestic violence occurs in 0.4% of households, or roughly 0.2% of the population, in a given year. And the danger of homicide in a domestic situation is very low compared to other common causes of death (Table 91).
Common sense tells us, or should, that couples argue and fight much more often than they engage in criminal activity against one another. Social studies suggest common couple violence occurs in about 10-12% of all intimate relationships in a given year. But in a free society lovers quarrels should not be within the province of a "justice" system. However, since "domestic violence" is an add on charge to any crime only rarely is criminal violence involved.
In Colorado, after passage in 1994 of statewide "domestic violence" laws, the percentage of married victims in incidents reported to police has declined from 42% in 1995 to just 29% in 2009. Either married couples have learned to greatly fear the police, as suggested by Table 72, or the vast increase in domestic abuse accusations is having a very negative impact on the willingness of men to marry as suggested by Table 77. Probably both factors are at play, as well as other conditions, but there is a clear temporal correlation with passage of draconian domestic violence laws and what has been referred to for some years now as the death of marriage. Since the institution of marriage and families lies at the root of our civilization such counterproductive laws are contributing to our legislated demise.
Irregardless of the statistics that clearly show criminal domestic violence is a rare crime, the net result of Colorado's draconian laws has resulted in such charges becoming the most common "crime" in Colorado. By 2009 26% of all misdemeanor cases in the courts were for domestic violence (Table 71). While the state court administrator does not break out felonies in the same fashion the percentages are roughly comparable. But by mid-2011 virtually the only convictions are of those defendants who foolishly take a plea bargain.
Even with massive deficit spending it is clear that federal and state courts have been unable to properly dispense justice according to the principles enumerated above. But they have adapted by dealing "justice" in an assembly line fashion with such tactics as Fast Track, torture and intimidation to extract "confessions" (hypothermia works wonders on most defendants), and ignoring the nuances of the law to obtain a plea bargain, among other tactics to "speed up justice." As society pays and expects prosecutors to obtain convictions, and no baby DA is going to get promoted if they don't get convictions, there is strong incentive for prosecutors to use these tactics.
First, and foremost, don't talk to police. And the district attorney (prosecutor) is not your friend. Both are legally permitted to lie when interrogating you. You can only make a bad situation worse by trying to explain yourself.
Unless prosecutors have incontrovertible evidence against a citizen, which is fairly rare, there is little reason to accept a plea bargain and plead guilty. Note, however, that prosecutors are well known to jack up the charges against a citizen that they have no hope of proving in court in an attempt to scare the defendant into a plea bargain.
I have grown infinitely tired of listening to citizens who take a plea bargain because they were (a) scared, (b) unwilling to face a jury of their peers, (c) later claim they didn't do it, (d) were intimidated or tortured into pleading guilty, (e) thought the prosecutor was telling them the truth, (f) thought a misdemeanor, or sometimes even a felony conviction wouldn't hurt them (especially true in domestic violence cases), or (g) are simply too damn dumb to defend themselves, among other excuses.
Then they contact the Equal Justice Foundation claiming their civil and Constitutional rights have been violated and they are going to sue. Of course the EJF should pay for it or, at the very least, provide an amicus curiae brief for their appeal. Been there, done that. And repeating the same thing over and over again and expecting a different outcome is one definition of insanity. Further, while I can't speak for other states, in Colorado if a citizen accepts a plea bargain they surrender their right to an appeal.
Hopefully, it is clear that a plea bargain is only rarely in a defendant's best interest when charged with a crime. But so long as prosecutors can easily get plea bargains without having to follow the law, or explain the long-term consequences, there is little or no reason for the justice system to reform. Any defendant who says they are guilty and accepts a plea bargain is considered guilty in the eyes of the public and the legal system. And why shouldn't they be?
Any competent criminal defense attorney will tell you that a bench trial, or trial to a judge, is simply a long, slow way of pleading guilty. So take it as a given that a defendant will lose if they accept a bench trial. There are fair judges but why take the chance?
Thus, if a citizen is to restore their life and reputation after being arrested and charged with a crime, the only alternative is to plead Not Guilty and demand a jury trial irregardless of what police, prosecutor, friends, incompetent attorneys, or anyone else tells them.
Any citizen who is unwilling to stand up for their rights, and proclaim and defend their innocence before a jury of their peers does not deserve justice. And why should anyone else do it for them, particularly for free or pro bono?
What happens if you have the intelligence and fortitude to defend yourself against the massive powers of the State? A great deal of free information on attorneys, due process, civil rights, etc. is provided on the Domestic Violence Against Men web site so start there to educate yourself. There are many other sources of help tabulated here so start digging and reading.
So prosecutors, and sometimes defense attorneys, will often try and delay the arraignment or grand jury hearing. As the defendant is likely incarcerated, or under a punishing restraining order during this period that frequently keeps them away from their children and out of their home, such delays are usually not in the citizen's best interest. But tactics in such situations are best left to that rara avis, a competent criminal defense attorney, or simply patience and endurance if pro se.
Once arraigned and charged a waiting game begins that usually acts in the defendant's favor. In FY 2010 the Colorado state court administrator tabulates 36,993 felony cases but only 1,059 jury trials. There were 69,695 misdemeanor cases but only 821 jury trials.
Now preparing for and conducting a jury trial obviously takes a great deal of a prosecutor's time and energy. With the current budget crises it is reasonable to assume that roughly 1,000 misdemeanor jury trials and around 1,200 felony jury trials is the maximum the Colorado legal system can handle in a given year. Since only 1 in 35 felony cases and 1 in 85 misdemeanor cases goes to a jury trial a defendant has rather dramatically increased their odds in favor of a dismissal by simply holding out as prosecutors know they can't possibly try all the cases on their docket. As a result if the prosecutor has an unreliable witness, e.g., a wife who refuses to testify against her husband, weak physical evidence, or the defendant has a good alibi or affirmative defense, the case is likely to be dismissed after a few months.
But what prosecutors often do is play a game of blind man's bluff wherein they continue to offer a plea bargain, the best of which will almost certainly come at the pre-trail conference where the court inquires whether the parties are ready for trial. The smart defendant who appears at that conference and states they are ready for trial still further increases their odds of dismissal unless the charges involve a major felony. Even then the prosecutor probably has 1 to 3 felony trials scheduled at the same time, or 3 to 5 misdemeanor trials, as experience tells them witnesses won't show, they can get a continuance, etc. Thus, the day before, or the morning of the trial, they will ask for the weakest cases to be dismissed or, as often happens in domestic violence cases, the "victim" doesn't show up and Crawford v. Washington forces the prosecutor to dismiss, or the defendant, wisely, refuses a continuance and their right to a speedy trial is violated again resulting in a dismissal.
In practice it has become quite rare for a prosecutor to obtain a conviction unless the citizen accepts a plea bargain, a very stupid decision on the part of the citizen. And juries generally hate "he said/she said" and many drug cases. So even cases that go to a jury trial frequently do not result in a conviction, particularly if the defendant can afford a competent criminal defense attorney. By mid-2011 evidence suggests that in domestic violence cases virtually the only defendants who are convicted are those who take a plea bargain.
Innumerable laws make it impossible to obey them all and many are based on the biases and prejudices of legislators suffering from a god complex or sheer stupidity. As a result millions of citizens find themselves caught up in America's dysfunctional "justice" system every year.
The attorneys who profit from this system are not from the top of the gene pool with regard to ethics, morals, and rectitude. And judges are almost always picked from the bottom half of the attorney pool. As a result, judges have a generally poor history of ruling in favor of citizens and civil rights.
Citizens with the basic fortitude to demand their rights and stand up against the legally-sanctioned lies of police and prosecutors and plead not guilty and demand a jury trial will usually go free. However, their path to freedom will be tortuous and expensive.
But freedom is never free and if just half of the millions of defendants accused of crimes every year demanded a jury trial the justice system would reform in short order. One of the reasons the 18 th Amendment was repealed was that juries would not\ longer convict. So do your part for freedom either as a defendant or a jury member.
Dr. Corry holds a Ph.D. in geophysics from Texas A&M University and is a Senior Fellow of the Geological Society of America. He is a widely-published and internationally-known earth scientist whose biography has appeared in Who's Who in the World, Who's Who in America, Who's Who in Science and Engineering, among others, for over a decade.
After service with 1 st Marines he became involved with the early space program in 1960, doing preflight testing and failure analysis on Atlas and Centaur missiles, including all the Project Mercury birds. In 1965 he switched to oceanography and did research at both Scripps Institution of Oceanography in San Diego and Woods Hole Oceanographic Institution on Cape Cod. He has also taught geophysics at university and worked as a research manager for a Fortune 500 company.
Dr. Corry has climbed high mountains, been shipwrecked and marooned on an unexplored desert island, and ridden horseback through Utah, Arizona, and Colorado, among other adventures during his career.