It is apparent that in order to put more than 2.3 million people behind bars and keep them there, while simultaneously building a prison guard/police arm of the state that numbers in the millions, courts must make credible findings that an enormous number of American citizens are violent, dangerous, and worthy of extended imprisonment. Such a goal requires creativity in redefining what is “dangerous” to our society and why the incarceration of so many people is in the national interest.

It is too blatant and obvious for the courts to simply say that being poor or black is justification enough to imprison somebody. They have to put it into language that is palatable to Americans.

Thus, in order to find so many people guilty of the massive array of crimes established by the state, courts have had to construct an elaborate maze of rules and exceptions, authorizing and sustaining the convictions of so many people, and making sure that their criminal appeals go nowhere (except to profit those in the legal system fortunate enough to make a living by it). This maze is comprised of a series of rules that, on their own, appear reasonable, but when taken as a whole, demonstrate the total contempt courts have for the judicial process, and highlight the result-oriented nature of the process.

We all are familiar with how the law loves archaic Latin phrases that the typical
American knows nothing about: stare decisis (a rule is a rule); habeas corpus (bring us the body, dead or alive), ad infinitum (give us more money indefinitely) and res ipse loquitor (we can talk you blind), are obvious and well-known examples; but what is less known is how courts go about convicting the innocent in spite of laws forbidding it.

Here are just a handful of the excuses conjured up by result-oriented jurists to avoid letting the innocent out of our jails or prisons:

1) Waiver. An example: If you didn’t file your motion to suppress evidence when you should have, we don’t have to consider the fact the police unlawfully broke into your home and car, and seized evidence that would not have been admissible at trial. But you didn’t raise the argument when you should have. It is not our fault that your lawyer was asleep or drunk during the hearing.

2) Procedural Default. The federal court doesn’t have to consider the issues you’ve raised in your habeas corpus proceeding, because you didn’t raise those issues adequately when you were in front of the state court. Even if your argument would have won on the merits, you lose, because the state court didn’t get a chance to rule on it first.

3) Speculative. An example: You are arguing that the lethal injection procedure the state is going to use to kill you is cruel and unusual punishment, and will subject you to unwarrranted and excessive pain. But that argument is too speculative, and you can’t raise it until you can PROVE that the pain is unreasonably harsh. Perhaps you should consider filing again if, once you’re dead, it turns out you were correct. (Honestly, that is the law in Ohio.)

4) Timeliness. An example: You had one year within which to file your habeas corpus petition, and you filed it a day late. We won’t consider it, and you die in prison, regardless of how meritorious your claims are.

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5) Presumption of correctness: You are arguing that your trial was unfair, but we, the court, are going to presume that everything was done correctly, and you have the burden of proving that the trial was unfair. The fact that your argument is as reasonable as the state’s doesn’t matter. You lose because of the presumption. But what about the presumption of innocence? Oh, that only applies before you are convicted. Afterwards, the presumption is that the trial was fair and you are therefore guilty as charged.

6) Legislative matter, not judicial. You are arguing that the death penalty is cruel and unusual punishment, but the legislature has declared it to be the law. If you don’t like their decision, ask them to change the law. Don’t ask us to tell them how to do their job.

7) Factual innocence ain’t enough. The judge says: You might be factually innocent of the charged crime, but your trial was “fair” and that’s good enough for us. Conviction affirmed. (A gift from the U.S. Supreme Court!)

8) State’s Rights. We know that the federal government authorizes you to engage in the conduct we’re prosecuting you for, but this is Texas, buddy. And here, you’re going to jail for it. This is not to be confused with “federalism” that says: even though the state has legalized the use of marijuana, the federal law says it’s illegal, and since federal law trumps state law (except when we prefer the state law), you can’t smoke pot, regardless of what your state electorate says.

9) Harmless Error. This is the favorite excuse for courts throughout the nation: the reliable catch-all “harmless error.” The court explains: “We understand that the prosecutor didn’t give you the exculpatory evidence that would have shown you were innocent. The police lied about your conduct. One of the jurors used to date the victim. The trial judge accepted money to rule against you. BUT, we find these little problems to be “HARMLESS ERROR” and we know, down deep, that you are guilty as hell. Conviction affirmed!

While the examples of these excuses might seem exaggerated, they are precisely what it is like to practice law in American courts these days. It is virtually impossible to read an appellate court decision that doesn’t rely upon one or all of these excuses to create an insurmountable obstacle course assuring that those charged with crimes do the time.

Picture yourself entering a labyrinth – you walk down the hallway and enter the first room. A big sign on the wall reads “Procedural default.” You turn around and keep searching for the next room. You find it, enter, and the sign reads “Harmless Error.”

Same result every which way you turn. Welcome to the courthouse. 

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