UTOPIAN COMMUNISM IN LAW

Communism is an incorrect belief that social processes combined with human goodness, will produce information needed to make decisions, and will result in people making optimal decisions for the benefit of others. The basic idea is if people go hungry under Fidel Castro, then we have to find a smarter leader with better intentions.

John Torres in Florida Today quotes lawyer Kevin McCann as embracing this kindergarten economic nonsense:

“I think that in most, if not all wrongful convictions, a suspect is identified and they (law enforcement) start building a case around the suspect and they start looking only at the suspect and they do everything in their power to garner and generate evidence that may not be that strong of evidence but they need something… They need to close a case and in many instances there’s other evidence that’s ignored or not discovered that could and would solve the case and prevent the wrong person from being convicted.”

“I’m confident with this new (state attorney) administration that cases like Mr. Abramowski’s would not happen again due to the integrity of the man in charge now.”

As I said in a recent video, this illustrates McCann doesn’t believe in juries as the finder of fact, where police and adversaries merely produce information for them to weigh. McCann believes guilt is determined, and who is guilty is determined, in the executive branch. By the time it gets to the jury, the outcome is already rigged. Nobody tells the jury the executive branch is allowed to lie and hide evidence without penalty, and often does. There is no penalty on the executive branch for lying and hiding evidence, and McCann does not demand one. McCann belies this can instead be cured by electing a more virtuous all-knowing prosecutor, so that the rigged jury decision is the right one.

Whether police want to convict innocent people is as irrelevant as whether factory managers in the USSR want to waste money and produce little. The reason we have private property, businesses, and jury trials, is because altruism and social good will can never determine what food a McDonalds should make, or who is guilty. The reason we have prices and juries is because the imperfection and political corruption of police and prosecutors as decision makers can never be cured. Just as there is no viable economic system without prices and middlemen, there is no viable system for deciding who is guilty in the executive branch without the middleman of courts and law. But only by the separation of powers among competing decision makers whose influence is constrained by the institutional checks on their power.

The evil and corruption of police and prosecutors can never be fixed. Nor can the imperfection of businessmen or mobs, or of any human, be fixed. That is why we insert people into rigid external structures which harness and channel their energies into doing something no virtuous social group consciously chooses.

You can never stop police from encouraging lineup witnesses to pick the person police want them to pick. All you can do is tell the jury that this is often what police do, and here are the factors and past statistics on the reliability of various types of lineups and witnesses.

The job of the executive branch is not to decide who is guilty. One of their jobs is to enforce the law against perjury, so that separation of powers in court can take place. Not ignore laws against perjury so they can decide guilt in the executive branch, and then lie to make sure the jury reaches the right decision. But that is what happens when you give one person too many jobs — both to get convictions and also to prosecute perjury — instead of separating those powers.

You have to make sure the jury understands police are evil and imperfect. Not program jurors with religion like McCann does, to imagine police and prosecutors are virtuous and know who is guilty.

The cause of wrongful convictions is people like Kevin McCann wanting guilt to be decided in the executive branch. And then misleading jurors that the people in the executive branch are good and virtuous and their decisions are correct. Kevin McCann’s own utopian view of social processes ignoring the tragedy of human endeavors — imagining it is possible to have good police or good prosecutors instead of separation of powers — is what leads to wrongful convictions.

But we can ask Bill Scheiner: Are your prosecutors allowed to cultivate jailhouse confession witnesses, while hiding from jurors that they face a reward and no penalty for lying? And generally that is what prosecutors have rewarded them for doing, and have gotten reelected for doing? We will see if a virtuous man ever answers such questions, or continues the tradition of fake theater for power.