THE FORGOTTEN IMPORTANCE OF CIVIL LIBERTIES

By JACOB G. HORNBERGER

One of the real tragedies in the struggle for freedom in the United States in the latter part of the 20th century has been the forgotten importance of civil liberties. While economic liberty provides the focal point of most of the efforts of freedom devotees, and rightfully so, it is vitally important that we never forget that all aspects of freedom are intertwined--if we lose one, we stand in danger of losing all of them.

Advocates of economic liberty and limited government recognize that the purpose of government is to protect peaceful and law-abiding people from violence and fraud. If a person inflicts direct harm such as murder, rape, or theft on another person, he should be punished by the State for violating the rights of others.

But many freedom devotees believe that the analysis stops there--that criminals should be punished and that's all there is to it. Many of them, especially those on "the Right," view the procedural safeguards in the Constitution as mere "technicalities" or "obstructions" whose design and effect are to help criminals go free. They see these safeguards as 18th century "horse and buggy" anachronisms which are inappropriate to the more complex life of the 20th century.

They are sadly mistaken. And they do not do justice to the intelligence and insight of their American ancestors who fought so hard to ensure that these restrictions on government power were expressly enunciated in the Constitution.

Tragically, the forgotten, or perhaps abandoned, importance of civil liberties characterizes many freedom organizations in the United States which are devoted to achieving economic freedom. Recognizing the vital importance of economic liberty, and giving lip service to the Constitution and the Bill of Rights, they scoff at the importance of civil liberties as a part of freedom in general.

For example, a tremendous intellectual assault on civil liberties took place last year in a series of articles entitled "Crime and Punishment" by Robert James Bidinotto. The assault was made more meaningful because the articles appeared in The Freeman, a journal published by The Foundation for Economic Education of Irvington, New York, an organization long known for its principled commitment to economic freedom.

Concerned with ever-increasing crime rates in America, Mr. Bidinotto argued that the solution, at least in part, turned on the curtailment of the safeguards enunciated in the Fourth, Fifth, Sixth, and Eighth Amendments to the U.S. Constitution. Mr. Bidinotto suggested that if Americans just loosened some of the strictures in the Bill of Rights which enabled so many criminals to go free, the crime problem could be significantly alleviated. Unspared from Mr. Bidinotto's attack were civil liberties lawyers as well as such rights as trial by jury, right to bail, right to counsel, protection from unreasonable searches and seizures, and protection from self-incrimination.

Contrary to popular opinion and what Americans are so often taught by their government officials, the procedural safeguards in the Constitution are not mere technicalities to protect the guilty. They are instead well-established safeguards to protect the innocent--those who have been falsely accused of a crime by their own government officials. If Americans in the latter part of this century forget this vital principle, they do so at their peril.

I used to be a civil and criminal trial attorney. I was often asked, "Don't you lose sleep when you get guilty people off the hook?" My answer was, "Never." In fact, of all the criminal cases I handled--drug, murder, theft, assault, embezzlement, fraud--I lost sleep for several weeks in only one case. That was the case in which I believed, and still believe, that I had lost an innocent man to ten years in the federal penitentiary.

What many criminal defense lawyers recognize is what our American ancestors recognized, but unfortunately what so few Americans today do: that the government sometimes falsely accuses a person of a crime. When that happens, such fundamental rights as the presumption of innocence, legal counsel, trial by jury, and cross examination lose all semblance of "technicalities" and become the obstacles, the obstructions, the entanglements which interfere with the government's ability to convict a person who has done nothing wrong. The reason I never lost sleep at getting a "guilty" person off the hook (which actually happened only rarely) is that I knew that if it was this difficult to convict a "guilty" person, that meant that it was that much more difficult to convict an innocent person.

I once represented a security guard for a national railroad line. He was one of the most competent law enforcement officers I had ever encountered. His credentials included a commission from the State of Texas as a Special Ranger.

The railroad had been suffering a series of burglaries of its railroad cars. One day my client caught a juvenile breaking into a railroad car which contained the household goods of some American family. The boy resisted arrest and, after a struggle, was taken into custody by my client.

For various reasons, some of which we were convinced were extra-legal, the prosecutor decided to charge my client with assault rather than the juvenile for burglary and attempted theft. It is this type of situation which creates the sleepless nights for the defense attorney--the specter of an innocent client, and a law enforcement officer at that, being sent to prison for a crime he did not commit.

Fortunately, my client was acquitted. It is impossible to understate my gratitude (and that of my client) in having the benefits of the presumption of innocence, trial by jury (we didn't trust the judge either), and the right to cross-examine the juvenile.

In another case, I was summoned to a local hotel by a client who was being accused of murder. His girlfriend had died after falling from their tenth floor hotel room. When I arrived at the hotel, the police were already questioning my client; yet, having just lost his girlfriend, he was obviously in no state of mind to be answering questions. I immediately advised him to stop responding and asked the police to stop interrogating him.

The reaction of the police? Intent on not allowing the "technicality" of the Fifth Amendment to impede the "proper administration of justice," they arrested me for "disorderly conduct," removed me for booking, and continued the interrogation of my client. I at least had the solace of believing that no court would admit my client's answers, no matter how "voluntary," in any criminal proceeding.

The inquest ultimately established, and the district attorney conceded, that the girl's death was a suicide, not a murder. The grand jury did not see fit to even issue an indictment, which of course, is simply a legal accusation. The truth was that the man was innocent. (The truth was that so was I. I hired one of the foremost criminal defense lawyers in the United States who represented me for free--he had recently suffered the same type of experience in a Miami court; ultimately, after I refused a plea bargain, the prosecutor dismissed the charges against me and apologized.)

To this day, when I hear an American judge instructing a jury to presume the defendant innocent and not to convict him unless convinced of guilt beyond a reasonable doubt, I take great pride in being an American; in living under a criminal justice system that towers above those in other countries whose criminal justice system unfortunately is the ideal of many American "anti-crime fighters"--a system of presumption of guilt, pretrial incarceration without bail, non-jury trials, involuntary confessions, and unrestricted searches and seizures, all with the single-minded purpose of punishing the guilty no matter what the cost to the innocent.

The Founding Fathers, and the American people of the 1700s, were not naive. They knew that the procedural safeguards in the Bill of Rights would result in the release of many guilty people. But they were willing to accept that price in order to ensure that innocent people were never, or rarely, convicted. They fully recognized that which freedom devotees on the Right recognized--that those who violate the rights of others need to be punished. But what they also recognized is what those on the Right so often do not: that sometimes people are wrongly accused of violating the rights of others.

Mr. Bidinotto is right to be concerned about crime and other crises which periodically beset us. However, historically it is crises that have furnished the excuse for some of government's most monumental assaults on human freedom. It is during these times that we must be most on our guard to protect our civil liberties, not surrender them. Otherwise, freedom devotees, and especially those on the Right, will find that economic liberty, which they have fought so hard to achieve, has been sacrificed back to government under the guise of the criminal law.

Mr. Hornberger is the founder and president of The Future of Freedom Foundation, P.O. Box 9752, Denver, CO 80209. ------------------------------------------------------------ From the July 1990 issue of FREEDOM DAILY, Copyright (c) 1990, The Future of Freedom Foundation, PO Box 9752, Denver, Colorado 80209, 303-777-3588. Permission granted to reprint; please give appropriate credit and send one copy of reprinted material to the Foundation.