printOf course, “Caylee’s Law,” Radley Balko points out, is a horrible idea. Stupid too. However, to neglect real evidence because one is against the death penalty is as horrible and stupid, if not more so. These are separate issues.
Alan Dershowitz has been arguing that the Casey Anthony verdict is an embodiment of “our legal system.” In making this case, Dershowitz alludes, curiously, to the positive law, not to any natural-law aspect of the American legal system, or to this woman’s prosecution.
To support his view of the impetus of America’s legal system, Dershowitz (on Huckabee), for example, touted the Exclusionary Rule as exemplifying his view of the impetus of America’s legal system. (I say “curiously,” because libertarians seem not to be distinguishing positive- from negative-law arguments in support of the jury’s innocent ruling.)
The Exclusionary Rule is a technicality tarted up as a real right. Hardly libertarian—at least not if one is a proponent of the natural law.
In the same vein, a procedural violation of the Fourth Amendment, say, an improper search, can get evidence of guilt—-a bloodied knife or a smoking gun—-barred from being presented at trial. Fail to Mirandize a murderer properly, and his confession will be tossed out. Such procedural defaults are very often used to suppress immutable physical facts, thus serving to subvert the spirit of the law and natural justice.
More minted “rights” are “consular rights.” A procedural default such as the failure to apprise a defendant of his consular contacts is never a violation of a natural right. “Consular rights” are of a piece with Miranda rights and the Exclusionary Rule. Again, these are technicalities tarted up as real rights.
Might these gaps of understanding between libertarians touch on the distinction, in our multi-factioned movement, between the hardcore, life-liberty-property classical liberal, and civil libertarianism and “libertarianism lite”?
Dershowitz is a civil libertarian who once conflated the natural law with the law of the jungle.
Alan once described himself to me as “a libertarian who thinks his taxes are too low>”
The only reason any guilty get punished, and any innocent go free, is a mix of random chance, financial affluence, and political pull.
We have a system of band-aids: Miranda rights to limit police who are loyal only to the state, and who have automatic and total immunity. Judges, prosecutors, and defense attorneys who all come from the same self-serving cult, and a sea of laws supposed to prevent them from colluding. Checks and balances to limit a beast that should not be.
The age of instituted coercion is, by necessity, the age of the idiot. As Job so eloquently put it, “Who can bring a clean thing out of an unclean? not one.” (Job 14.4)
Speaking of the 5th amendment, the only part of it I would reconsider in a case like this is not requiring the defendant to testify. I can get my head around the fact that the jury felt the prosecution didn’t prove murder but there ought to be some way of holding a mother accountable for not offering any plausible explanation of what happened to the daughter she was supposed to be caring for.
This essay-ette by Ilana is a case study in Libertarian Talmudics. Where shysters like Dershowitz are concerned, one need only listen to the deep tolling bell of economic/political self interest. Ditto the contradictions between his socio-cultural bolshevism and violent Zionism. KMac analyzes this Tribal thing quite competently and, when I finish reading Mercer’s ITCP, I’ll apply some of his insights to an Amazon review of same.
[Sounds a bit ominous, CF. I hope not.]
The problem with “Caylee’s Law” and the like is that it simply increases the burden of “good” parenting, which is already high enough.
As the average American continues to degrade mentally and despise government nonsense, it will one day be impossible to have a fair trial, or a functioning judicial system, no matter the laws or process.
Perhaps if this jury understood juror rights the outcome may have been different.
SS