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<p>THE FORGOTTEN IMPORTANCE OF CIVIL LIBERTIES</p>
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<p>By JACOB G. HORNBERGER</p>
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<p>One of the real tragedies in the struggle for freedom in the
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United States in the latter part of the 20th century has been
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the forgotten importance of civil liberties. While economic
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liberty provides the focal point of most of the efforts of
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freedom devotees, and rightfully so, it is vitally important
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that we never forget that all aspects of freedom are
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intertwined--if we lose one, we stand in danger of losing all
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of them.</p>
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<p>Advocates of economic liberty and limited government recognize
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that the purpose of government is to protect peaceful and law-abiding people from violence and fraud. If a person inflicts
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direct harm such as murder, rape, or theft on another person,
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he should be punished by the State for violating the rights of
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others.</p>
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<p>But many freedom devotees believe that the analysis stops
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there--that criminals should be punished and that's all there
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is to it. Many of them, especially those on "the
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Right," view the procedural safeguards in the Constitution as
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mere "technicalities" or "obstructions" whose design and
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effect are to help criminals go free. They see these
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safeguards as 18th century "horse and buggy" anachronisms
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which are inappropriate to the more complex life of the 20th
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century.</p>
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<p>They are sadly mistaken. And they do not do justice to the
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intelligence and insight of their American ancestors who
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fought so hard to ensure that these restrictions on government
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power were expressly enunciated in the Constitution.</p>
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<p>Tragically, the forgotten, or perhaps abandoned, importance of
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civil liberties characterizes many freedom organizations in
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the United States which are devoted to achieving economic
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freedom. Recognizing the vital importance of economic liberty,
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and giving lip service to the Constitution and the Bill of
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Rights, they scoff at the importance of civil liberties as a
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part of freedom in general.</p>
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<p>For example, a tremendous intellectual assault on civil
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liberties took place last year in a series of articles
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entitled "Crime and Punishment" by Robert James Bidinotto.
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The assault was made more meaningful because the articles
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appeared in The Freeman, a journal published by The Foundation
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for Economic Education of Irvington, New York, an organization
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long known for its principled commitment to economic freedom.</p>
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<p>Concerned with ever-increasing crime rates in America, Mr.
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Bidinotto argued that the solution, at least in part, turned
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on the curtailment of the safeguards enunciated in the Fourth,
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Fifth, Sixth, and Eighth Amendments to the U.S. Constitution.
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Mr. Bidinotto suggested that if Americans just loosened some
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of the strictures in the Bill of Rights which enabled so many
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criminals to go free, the crime problem could be significantly
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alleviated. Unspared from Mr. Bidinotto's attack were civil
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liberties lawyers as well as such rights as trial by jury,
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right to bail, right to counsel, protection from unreasonable
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searches and seizures, and protection from self-incrimination.</p>
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<p>Contrary to popular opinion and what Americans are so often
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taught by their government officials, the procedural
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safeguards in the Constitution are not mere technicalities to
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protect the guilty. They are instead well-established
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safeguards to protect the innocent--those who have been
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falsely accused of a crime by their own government officials.
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If Americans in the latter part of this century forget this
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vital principle, they do so at their peril.</p>
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<p>I used to be a civil and criminal trial attorney. I was often
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asked, "Don't you lose sleep when you get guilty people off
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the hook?" My answer was, "Never." In fact, of all the
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criminal cases I handled--drug, murder, theft, assault,
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embezzlement, fraud--I lost sleep for several weeks in only
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one case. That was the case in which I believed, and still
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believe, that I had lost an innocent man to ten years in the
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federal penitentiary.</p>
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<p>What many criminal defense lawyers recognize is what our
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American ancestors recognized, but unfortunately what so few
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Americans today do: that the government sometimes falsely
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accuses a person of a crime. When that happens, such
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fundamental rights as the presumption of innocence, legal
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counsel, trial by jury, and cross examination lose all
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semblance of "technicalities" and become the obstacles, the
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obstructions, the entanglements which interfere with the
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government's ability to convict a person who has done nothing
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wrong. The reason I never lost sleep at getting a "guilty"
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person off the hook (which actually happened only rarely) is
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that I knew that if it was this difficult to convict a
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"guilty" person, that meant that it was that much more
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difficult to convict an innocent person.</p>
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<p>I once represented a security guard for a national railroad
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line. He was one of the most competent law enforcement
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officers I had ever encountered. His credentials included a
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commission from the State of Texas as a Special Ranger.</p>
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<p>The railroad had been suffering a series of burglaries of its
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railroad cars. One day my client caught a juvenile breaking
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into a railroad car which contained the household goods of
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some American family. The boy resisted arrest and, after a
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struggle, was taken into custody by my client.</p>
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<p>For various reasons, some of which we were convinced were
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extra-legal, the prosecutor decided to charge my client with
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assault rather than the juvenile for burglary and attempted
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theft. It is this type of situation which creates the
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sleepless nights for the defense attorney--the specter of an
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innocent client, and a law enforcement officer at that, being
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sent to prison for a crime he did not commit.</p>
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<p>Fortunately, my client was acquitted. It is impossible to
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understate my gratitude (and that of my client) in having the
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benefits of the presumption of innocence, trial by jury (we
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didn't trust the judge either), and the right to cross-examine
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the juvenile.</p>
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<p>In another case, I was summoned to a local hotel by a client
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who was being accused of murder. His girlfriend had died after
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falling from their tenth floor hotel room. When I arrived at
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the hotel, the police were already questioning my client;
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yet, having just lost his girlfriend, he was obviously in no
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state of mind to be answering questions. I immediately advised
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him to stop responding and asked the police to stop
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interrogating him.</p>
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<p>The reaction of the police? Intent on not allowing the
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"technicality" of the Fifth Amendment to impede the "proper
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administration of justice," they arrested me for "disorderly
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conduct," removed me for booking, and continued the
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interrogation of my client. I at least had the solace of
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believing that no court would admit my client's answers, no
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matter how "voluntary," in any criminal proceeding.</p>
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<p>The inquest ultimately established, and the district attorney
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conceded, that the girl's death was a suicide, not a murder.
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The grand jury did not see fit to even issue an indictment,
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which of course, is simply a legal accusation. The truth was
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that the man was innocent. (The truth was that so was I. I
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hired one of the foremost criminal defense lawyers in the
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United States who represented me for free--he had recently
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suffered the same type of experience in a Miami court;
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ultimately, after I refused a plea bargain, the prosecutor
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dismissed the charges against me and apologized.)</p>
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<p>To this day, when I hear an American judge instructing a jury
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to presume the defendant innocent and not to convict him
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unless convinced of guilt beyond a reasonable doubt, I take
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great pride in being an American; in living under a criminal
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justice system that towers above those in other countries
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whose criminal justice system unfortunately is the ideal of
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many American "anti-crime fighters"--a system of presumption
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of guilt, pretrial incarceration without bail, non-jury
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trials, involuntary confessions, and unrestricted searches and
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seizures, all with the single-minded purpose of punishing the
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guilty no matter what the cost to the innocent.</p>
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<p>The Founding Fathers, and the American people of the 1700s,
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were not naive. They knew that the procedural safeguards in
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the Bill of Rights would result in the release of many guilty
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people. But they were willing to accept that price in order to
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ensure that innocent people were never, or rarely, convicted.
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They fully recognized that which freedom devotees on the Right
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recognized--that those who violate the rights of others need
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to be punished. But what they also recognized is what those on
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the Right so often do not: that sometimes people are wrongly
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accused of violating the rights of others.</p>
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<p>Mr. Bidinotto is right to be concerned about crime and other
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crises which periodically beset us. However, historically it
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is crises that have furnished the excuse for some of
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government's most monumental assaults on human freedom. It is
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during these times that we must be most on our guard to
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protect our civil liberties, not surrender them. Otherwise,
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freedom devotees, and especially those on the Right, will find
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that economic liberty, which they have fought so hard to
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achieve, has been sacrificed back to government under the
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guise of the criminal law.</p>
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<p>Mr. Hornberger is the founder and president of The Future of
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Freedom Foundation, P.O. Box 9752, Denver, CO 80209.
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------------------------------------------------------------
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From the July 1990 issue of FREEDOM DAILY,
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Copyright (c) 1990, The Future of Freedom Foundation,
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PO Box 9752, Denver, Colorado 80209, 303-777-3588.
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Permission granted to reprint; please give appropriate credit
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and send one copy of reprinted material to the Foundation.
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</p>
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