Fragility of America—Part 2, Casey Anthony

Yesterday I ranted about the way the U.S. Constitution and our individual rights have been diminished by a nation a frightened rabbits.

Right now, half the country is trying to delete the Second Amendment from the Constitution: “the right to bear arms.” These timid, gentle souls seem to feel all we need to do to stop school massacres in this country is “get together and feel all right.” If law-biding citizens can’t buy certain types of weapons, they they argue, then neither can the bad guys.

Sidebar: Are you kidding me? Bad guys usually have to steal guns, that is, unless they can buy them from the ATF. Remember “Fast and Furious”? No? How quickly we forget bad things. Best to think positively. And another thing: If American gun makers can’t make automatic weapons, where will the U. S. Military buy them? From Russia? Oh, now that I think about it, maybe we already have an agreement with Putin to that effect.

In case you didn’t memorize the Bill of Rights when you were in school, as you ought to have done, here it is:

Second Amendment: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

In modern American English this means, because we need a competent, civilian defense force against our own government’s over-reaching tactics and possible attacks from beyond our borders, in order to be secure and remain free the right of the average person to keep and use weapons shall not be diminished in any way whatsoever.

Is the Second Amendment Obsolete in  2013?

That’s what the debate is all about. The Democrats (for the most part) believe the time has come when the average person has no good excuse for owning weapons. People don’t feel safe from attack even in their homes and certainly not in their schools. If you just dropped in from Love Planet Venus, you might see their point: 911 and a decade of hideous massacres in schools, gun murders in Chicago, gang violence along the Mexican border.

However, if you dropped in from Mars where men are still men and women are manly, too, you would see it differently. You would think: “Border violence, criminal gangs in Chicago, whackos invading schools with guns, Islamist extremists attacking embassies abroad. Sounds like this country needs a well regulated militia, because the police and military aren’t up to the job alone.”

An American from 1785 who dropped in on us would be shocked that the issue would require debate. He would form a militia, go down to the Mexican border the way Teddy Roosevelt did, and make quick work of the Mexican gangs (ever hear of Poncho Villa? No? Probably not. No one reads history these days.) Then he’d turn his horse north and charge up to Chicago, where he would do the same thing—using all the automatic weapons he could get his hands on. Undocumented aliens would be rounded up, too, and—not deported but—given the chance to become American citizens or go home and else apply for a work visa.

Sidebar: If you don’t travel much, maybe you don’t realize that Americans have to apply for visas to get into the majority of countries in world. You can’t just hop on a plane and go to Nepal or China. They won’t welcome you with open arms, especially not the Chinese. Furthermore, if you go to Europe, while you don’t need a visa, you do have to present your passport to enter and leave. You only have three months before you have to leave or apply for a visa. That’s right: an American can be deported from European countries.

In Antifragile, Nassim Nicholas Taleb explains clearly why we are now engaged in this debate: human nature tends toward the norm and tends to ignore the outliers, the odd events that aren’t supposed to happen. 911 wasn’t expected. School massacres aren’t expected. Apparently, these events so numbed us that we also ignored the growing threat of the Mexican drug gangs. Somehow we confused the defense of the Mexican border against criminal gangs with closing our borders to Mexican immigration.

The Bill of Rights Under Attack

IMHO: This current Second Amendment debate is simply a diversion from the real battle, which is over the Bill of Rights as a whole. What’s really going on is that over the decades, we have permitted the federal courts to legislate from the bench far too much. (I happen to believe the right to privacy afforded by the Fourth Amendment does afford the right to an abortion to a woman; so that’s not what I’m talking about.) It’s decisions like the one that permitted governments to seize private property and sell it to a private party in order to raise more taxes from the use of that property that drives me wild.

The most insidious encroachment on our individual rights is taking place in the criminal courts.

Take Casey Anthony as an example (and please pretend that you don’t know whether she was really guilty or not—briefly put aside your opinion; trust me, it won’t hurt a bit).

Fourth Amendment Rights:

The Anthony home and property were repeatedly searched with judges’ warrants, but the warrants did not state exactly what it was the cops were looking for, because they had no idea themselves. At one point, as I recall, they seized all of Casey’s shoes, for instance. And, as we all know, they seized a car titled to her parents. I don’t know what items were listed on the search warrants, although I imagine if I googled it I could find those warrants online somewhere, but I’m going to guess that the warrant for the car was specific but most of the others were not. If so, that was unconstitutional. But I’m sure it was legal, because over the years the courts have become more and more lenient in order to give the cops what we now perceive to be the powers they need to defend us from evil young women, like Casey.

Fifth Amendment Rights:

Casey was indicted by a grand jury, although grand juries are no longer required in all instances to indict a person for a capital or infamous crime. Most states now permit state’s attorneys to charge people. How this is justifiable under the Constitution, I don’t know. But if anything shows how we’ve watered down the Bill of Rights, it is this. The purpose of a “grand,” i.e, “big” jury is to make sure that the community as a whole agrees that an indictment is reasonable, not simply a single prosecutor. This is also true of secret trials before a single judge: the Constitution expected the whole community to sit in the courtroom, literally, and hear the state’s case. Now, of course, we’re so fragile and fearful of criminals that we not only accept prosecutorial indictments but we also have to televise infamous trials live “as they happen” so that the whole country can jeer and cheer the spectacle of a 22-year-old girl who “lost” her baby.

Double jeopardy was also an issue in the Casey Anthony case. Her lawyers properly balked at four counts of lying when most of her illegal lying (as opposed to her lifelong permissible lying) occurred on the same day and to the same detectiv
e. Last week an appeals court denied the claim that this was a Fifth Amendment violation of the prohibition against double jeopardy but did strike down two of the counts because they were supposed the same, two lies. Hmm.

A more evil trend in the courts as concerns double jeopardy, though, is the trend toward retrying defendants after the failure of the jury to find them guilty on one or more of the counts. Take as an example, Gov. Rob Blagojevich: when the first jury failed to convict him on all the charges, the feds tried him again on the remaining counts. Huh? The rational was that the jury was hung on half the points. But IMHO the Bill of Rights intended that any failure of a jury to produce a conviction is the same as an acquittal. The only possible explanation of our modern attitude is that we are too frightened to let anyone go free if we have even the slightest doubt about their perfect innocence—as if there really anything that’s perfect in this world.

Casey had to testify against herself. The whole country saw the broadcasts of her videotaped jailhouse conversations with her family—right after they took place and before the trial. Then the jury saw the videos again during the trial. Florida law requires all such material to be made public; they call it “Sunshine Laws,” as if the privacy of a defendant must be brought out into the sunlight lest she say something incriminating to a family member. What “free speech” was it, do you imagine, that the Florida legislature was afraid to let Casey say?

The items that police seize under warrants these days are retained by the courts as evidence. This is seizure, and its legal, but the Fifth Amendment clearly says that the people from whom it’s seized are entitled to just compensation. This means that valuable items of evidence must be purchased from their owner. If I recall correctly, though, the Anthony’s car was simply taken and after the trial, although she was found not guilty, it was destroyed. It seems to me that the Anthonys ought to have demanded just compensation for that.

Casey’s DNA was seized, too, as is every criminal defendant’s these days. And it won’t be given back. Because she was convicted of check fraud and lying to the cops, her DNA profile will remain in a government database. Any time any violent crime occurs, DNA evidence found at the scene will be compared to hers automatically.

Sixth Amendment Rights

Speedy trial: Casey Anthony spent so much time in jail before the trial, that she served the full term of her parole for check fraud had expired by the time she was released. (Of course, the judge who sentenced her later objected that he had intended her to serve her parole after the murder trial; despite the fact that the prison certified her as having completed the parole, and despite the constitutional prohibition against double jeopardy the state made her serve a second term on parole.)

Casey Anthony asked for a change of venue from her native Orlando, because the community was so incensed at her that she knew she couldn’t get a fair trial at home. It was the Salem Witch Trials in the Sunshine State. I still can’t understand why so many people took the Casey Anthony case so personally. It was as if half the people in this country felt they had been personally harmed by this person; and the other half felt that she was too evil to be permitted to live. Neither makes any sense unless you realize how fragile people in this country have become. We are so frightened by life that we can’t endure the thought of even one flawed individual in our midst.

Seventh Amendment Rights

Jury trials: After the Casey Anthony jury found her not guilty of murdering her child, pundits called for the creation of a system of “professional jurors.” If you think about this, and  note that most of those pundits were lawyers, you realize that what they meant by a “professional" juror was a lawyer. This is so ludicrous it barely deserves mention—but, no, it’s also more evidence of fragility. Naturally, lawyers are always looking for new ways to justify themselves and make aliving, but the real meaning of this phenomenon is that lawyers no longer trust the average American to make good decisions. Frankly, I don’t either, but I trust lawyers even  less. The education and preparation of most lawyers is “a glass bead game.” It’s self-referential. It’s incredibly narrow. But it was inevitable that this would happen, as soon as we started writing so many arcane laws: think The Affordable Health Care Act, which was so long no Congress-person had time to read it before the voted for it.

Eighth Amendment Rights

Excessive punishment: I firmly believe that capital punishment is excessive punishment, because it is irrevocable. So I would never have charged Casey Anthony with capital murder, even if I believed she was guilty. However, what strikes me about the charges against her is that they were excessive, even if she had committed infanticide. I say this because infanticide is quite common, and if we punished every woman who committed infanticide by executing her, there would have been five times as many females executed as there have been men. The charges against Casey were also “unusual” in that they were crafted just for her. Any other woman charged with the death of her child would have been charged at most with second-degree murder by abuse or manslaughter by negligence. But the prosecution had no evidence of abuse, only evidence of a loving mother, nor had they evidence of neglect, since Casey rarely let her daughter out of her sight. All the prosecution could do was throw all the spahetti at her to see what would stick.

The Constitution Prepares for Black Swans

In 1785 people knew that the universe has a high degree of randomness. Nothing is inevitable but death. Therefore, in writing the Constitution and the Bill of Rights they attempted to create a legal system in which unexpected outcomes would not punish the innocent. If the guilty went free, well, that was no skin off their backs (a cliché that refers to corporal punishment, BTW).

Over the years Americans have struggled mightily to remove all randomness from the system. We have tried to create a perfect system—to polish the rough diamond of freedom. In the end, though, we haven’t succeeded in bolstering our Antifragility but only in increasing out fragility. Now instead of a rough diamond, what we have is cubic zirconium.