Friends:

I think that many, if not all of us, would agree with the theory that it is better to let 10 guilty people go free than to convict one innocent one. But I think many people would prefer to believe that theory with one slight modification: that it is better to let 10 guilty people go free than to convict one innocent one, so long as the guilty people going free don’t include an OJ Simpson or a Robert Blake or a George Zimmerman. It is only when the “obviously guilty” go free that society resumes its crusade against the US justice system. Yet our perspective on this has been conditioned over hundreds of years, this belief that the justice system should be fair and just; when it results in an unsatisfactory outcome, that is when our criticisms come to life with vigor.

But have you ever considered the alternatives? Have you given any thought to what our society would be like if we didn’t have this system of justice, if our forefathers hadn’t founded our justice system and allowed it to evolve to the system we have today?

As we all learned in school, our system of government is based upon the English system, with two houses in the legislature and a judiciary featuring judges and juries. Surely those bastions of progress and growth and innovation were ahead of their time in all aspects of westernized culture, right? You’d be surprised; I sure was.

We engage in the study of history for many reasons, one of which is to learn where we came from and to identify and appreciate the people and events that shaped our world. But a byproduct of this endeavor can also be a deep appreciation for what we have today. And with the study of the justice system on which our system is founded, there is much about our own system today that requires our appreciation.

In the 1800s, as the United States was just finding its footing and fighting wars on its property in virtually every generation, the English were simply business as usual, a society that had been around for and evolved over hundreds of years. But their justice system was absolutely atrocious. A society that had no clearly established police force rushing to mobilize as crime escalated, especially the crime of murder.

We love to champion the 8th Amendment and its protection from cruel and unusual punishment in all discussions regarding the death penalty. But can you imagine a system in which an execution was required to take place within 48 hours of a conviction? And not only was it to take place that rapidly, but it was a public spectacle, the attendance of which typically measured in the tens of thousands? We would like to think that the death penalty should be as much a deterrent of crime as it is a punishment for such crime, but can you imagine a system in which executions were so speedily and publicly enforced?

Or imagine a justice system in which scientific evidence was nothing more than mere theory, espoused by the allegedly learned who had no scientific background at all? Consider a defendant on trial for murder by poison and the “expert” testifies that since this particular poison is odorless, the fact that the person died and during the autopsy there was no odor of the poison, thus the death was by poison? Can you imagine such nonsense? We like to think that judges and juries are unpredictable now, but imagine a situation in which the judge and jury make findings that are founded in no logic or fact at all, and this after a jury deliberated for a whole 12 minutes?

Do you honestly think we have it that bad today? Is our system so awful? Before we take up our pickets and criticize our system because a George Zimmerman or an OJ Simpson go free, consider if we were back in the 1800s in England. Which system would you prefer? A system in which every effort is made to protect our jurors from exposure to outside influence about a case? Or a system in which the newspapers and other print media exaggerate events prior to trial, thus poisoning the jury pool, and convict a defendant before the jury has even heard any evidence?

As an attorney, I oftentimes get irritated by the public criticizing our justice system. I know it’s not perfect and I know that plenty of probably-guilty people go free; but before we stir up the embers to burn it to the ground, we have to consider how far our system has come and how, only a mere 150 years ago, things were much, much worse.

Ours is a highly evolved society and we are truly living in the most magnificent age for technology and science and entertainment and discovery. I don’t think it is a large stretch to lump our system of justice in that grouping. It isn’t perfect and it could certainly use some modification, but tell me what is perfect?

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