Proud As An American, Part II: Another Reason I’m Proud to Be An American is That Everyone Has Equality Before The Law
By Ken K. Gourdin
In a previous Blog entry, I wrote that I’m proud to be an American because so many have been willing to sacrifice for the freedoms I enjoy. Another reason I’m proud to be an American is that what rights you have here aren’t dependent on who you are. I’m glad that all of us, regardless of what we’ve done or what our station in life is, are equal before the law. In an Op-Ed, I wrote:
Former Utah Supreme Court Justice, University of Chicago law professor, and U.S. Supreme Court law clerk Dallin H. Oaks, said a [key] . . . reason for the Constitution’s success is its commitment to popular sovereignty.
In the Gettysburg Address, President Abraham Lincoln also extolled the virtue of popular sovereignty. Even in the midst of the divisive Civil War, Lincoln proclaimed that “government of the people, by the people, and for the people shall not perish from the earth.”
Equality of men before the law is reinforced by another fundamental principle Oaks cites: the notion that we have a government, not of men but of laws. It doesn’t matter who we are or what our station in life is. We are all accountable to (and protected by) the law.1
As a polis, we feel so strongly about equality before the law (no matter who one is or what he might have done – or have been accused of doing) that the system we have set up does much more than simply pay lip service to the old adage that it’s better that a hundred guilty men go free than that one innocent man be convicted. In that vein, I have written:
In criminal law, the exclusionary rule says, generally, that illegally-obtained evidence cannot be used against someone in a criminal prosecution, even if that evidence is relevant and material. The ethics of my profession indicate that I must zealously defend my client no matter how I feel about him or about the crime with which he is charged. If I fail to do so I have breached the ethics of my profession, and my (former) client may appeal any conviction on the basis of ineffective assistance of counsel. If I believe there is good evidence that my client is guilty beyond a reasonable doubt, may I, in good conscience, still defend him? May I seek to have illegally-obtained evidence, which likely would convict my client if a trier of fact (a judge or a jury) were to consider that evidence, suppressed on the basis that the evidence was illegally obtained, even if my efforts likely would result in his acquittal? I believe the answer to all of these questions is, “Yes.” . . .
How does anyone sleep at night knowing that he defended (perhaps successfully) someone who actually was guilty by exploiting one or more “loopholes” in the law, such as the exclusionary rule? The simple answer (provided he acted ethically in doing so) is, because the Constitution and the law say he can. That is not to say that anything that is legal also is right, but a lawyer’s first duty, provided no other ethical considerations rightfully intrude, is to his client, and his next duty is to the ethics of his profession—even if those ethics produce what some might consider an undesirable result.2
In a subsequent post I illustrated the importance of the foregoing principle by using a hypothetical example:
Consider the following hypothetical. (Having sat through several years of hypotheticals in law school, I have been waiting with ‘bated breath, on the edge of my seat, for years, to inflict a hypothetical upon someone else, and now’s my chance!) My client is an S.O.B. Everybody in the community hates him. The crime with which he has been charged sounds just like something he would do, and everybody in the community knows it. Does my client have the right to expect that I will represent him as zealously as possible within the bounds of law and ethics? Yes. Does he have the right to expect that I will do anything that is not illegal or unethical to impeach any witnesses against him and otherwise to raise reasonable doubt in jurors’ minds? Yes. Does he have the right to expect that I will hold the prosecution responsible for proving every element of the crime with which he has been charged, and that I will do everything legally and ethically possible to ensure that the prosecution does so? Yes.
You and I might never need many of the protections that the Constitution guarantees my client—the Fourth Amendment’s guarantee against unreasonable searches and seizures; the Fifth Amendment’s right to due process and protection against self-incrimination; the Sixth Amendment’s right to a trial by a jury of one’s peers; the Eighth Amendment’s protection against cruel and unusual punishment, and other provisions. If we’re largely law abiding and if we’re never accused of a crime, we’ll never need any of these things. But these provisions weren’t written for you and me: they were written for people such as my client. He’s the one who needs them. And he needs me, a judge, and possibly a jury to ensure that he gets the protection they’re intended to provide.3
Many people didn’t like the result after a Florida jury acquitted George Zimmerman of murder in the shooting Trayvon Martin. Zimmerman’s case, however, is a good illustration of these principles. Concerning it, I wrote:
While we might say we believe it’s better for a hundred guilty people to go free than for one innocent person to be convicted, too many of us want to have our cake and eat it, too: if a jury reaches a verdict with which we disagree, many of us blame the very system whose protection we would demand if we were falsely accused (or if we believe there is insufficient evidence to convict us).
Many then take to the streets in protest, chanting such slogans as, “No justice, no peace!” What is justice? It is what we say it is. What is peace? Peace may be achieved by using the system to further whatever ends will keep us from rioting in the streets.
That sounds an awful lot like “rule of men” and not a whole lot like “rule of law” to me. As much as I understand why those who don’t believe that a just result was achieved in the Zimmerman case are frustrated, that’s not a country in which I think most of us would want to live.4
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| 1. | Ken K. Gourdin (September 17, 2013) “Key features ensured Constitution’s vitality,” Tooele Transcript-Bulletin A4. See also Ken K. Gourdin (April 29, 2014) “Just laws are indispensable to a civilized society,” Tooele Transcript-Bulletin A4. |
| 2. | Ken K. Gourdin (March 25, 2013) “The Ethics of Zealous Defense,” (Blog post), https://greatgourdini.wordpress.com/2013/03/25/the-ethics-of-zealous-defense/, last accessed July 4, 2014. |
| 3. | Ken K. Gourdin (July 31, 2013) “Hypothetical S.O.B. Clients and The Constitution,” (Blog post), https://greatgourdini.wordpress.com/2013/07/31/ethics-of-zealous-defense-ii/, last accessed July 4, 2014. |
| 4. | Ken K. Gourdin (July 30, 2014) “Zimmerman acquittal tests faith in U.S. legal system,” Tooele Transcript-Bulletin A4. |
Commentary on the passing scene 