Prosecuting to a Biased Jury— of Senators


By Barry Kirschner

NPR has recently broken a story with a 2019 confession from a co-conspirator/murderer of civil rights advocate and Boston Minister James Reeb in 1964 in Selma, Alabama. The case was prosecuted against two of the murderers in 1965 resulting in acquittals.  The prosecuting authorities must have known that a conviction from an all white Alabama jury was highly unlikely.

Which reminds me of the decisions soon to be made by Speaker Nanci Pelosi and the United States House Of Representative. The evidence of high crimes, misdemeanors, and worse is plentiful. I doubt if there is a member in the Democratic majority who believes that President Trump does not deserve impeachment. I am willing to bet that in their (unexpressed) opinions, half or more of the Republicans in Congress agree too. There is every reason to believe that these opinions from Republicans will remain unexpressed for the foreseeable future.

But the jury which would rule in an impeachment trial includes 54 Republican Senators. Conviction and removal from office would only occur if two thirds or more of the 100 member body vote to convict and remove Trump from office. At this moment there is no greater likelihood that 67 Senators would vote to convict than it was to have a unanimous verdict of guilt in Selma in 1965. So is it better for the house to impeach or not?

Realists have a duty to try to foresee the effect of losing the desired outcome. Part of this is balancing. Part of it is maturity. When Cheney, Bush and company sold the Iraq invasion, their bets were placed on being almost universally treated as liberators. Of many ineffective character traits for a president, George W. Bush was particularly flawed by a failure of curiosity if his hope did not transpire into a reality.

Bush-Cheney felt little need to understand their enemy, both drunk with military power and the hubris of leaders of the world’s most powerful nation. The bet was to oust the villain Saddam, redeem the macho of the man who was president at the time of the September 11 attacks, and to make the oil and markets of Iraq open for profiteering by multinational corporations. Little or no public concern was expressed by that administration about the civil war and the geo-political gift which the invasion triggered for Iran, another member of the Bush described trio of evil empires.

An impeachment which removes Trump from office installs Mike Pence as president. An impeachment which fails to result in conviction makes the impeachment proceedings a leading issue in the 2020 elections. How that will play out cannot be predicted with certainty, although there are many opinions which are expressed with great confidence of knowing the outcome.

Trial lawyers spend considerable time considering how and even whether to present a case to a jury panel likely to be biased against our client. In the private practice of law, fighting those causes to implacable juries becomes very expensive and uneconomical. Few if any experienced trial lawyers knowingly charge forward with the unwinnable case. In the private practice of law, fighting the unbeatable foe is a losing proposition. The incentives are not there.

The prosecutor’s role is different. A crime which is provable but not to a contemporary jury might be a waste of resources, good will, and political capital. But it also may be the right way to go forward in placing perpetrators on notice, and building the foundation which allows a more reasoned verdict at another time.

Contrast this with the recent decision to further pursue felony charges in Tucson against Scott Warren for rendering humanitarian assistance near the border. The original jury divided with 8 for acquittal on all counts. The decision to re-try this case is not a pursuit of justice. It is a pursuit of ambition in a corrupt chain of command. With the top of the federal administration including president and attorney general completely unconcerned with justice but wholly concerned with power, the decision to re-prosecute is wholly explained by the immediate incentive for occupational advancement. To anyone in that chain of command it is obvious that personal ambition through the Justice Department or with a reward of a federal judicial appointment is markedly improved by a naked pursuit of aggression against do-gooders. As Tucson folk singer and writer Ted Warmbrand sings, “Quien es el criminal?” (“Who is the criminal here?”)

The recent NPR story tells a truth long withheld from the public, known only to a guilty few, or perhaps not so few. The energy for the re-examination comes from the Emmett Till Unsolved Civil Rights Crime Act of 2008.  The Act encouraged the unearthing of cold cases with unsolved murders generally traceable to civil rights activities of the victims. The federal jurisdiction was limited to bombings, kidnappings, and crossing state lines to commit murder. And now the story is a testimonial to a truth known by many but not enough. The intimidation by violent haters can not only kill people, it can kill truth. In its time, the murder and events around it can kill the dissemination of truth.

Which takes me back to Washington D.C. There are many casualties from the extraordinary nature of the current executive branch. Survival of the environment as we know it, the North Atlantic alliance and the European community as it has successfully existed for more than a half century, and the rule of law are all in question. Have we become a people who tolerate children being torn apart from parents who have committed no moral or legal wrong? Truth is the first casualty, and the necessary victim if other sinister results are to come. Current policies on economics, environment, education, and almost everything else could not survive a truth telling to an engaged public.

It will be hard to get where we need to go as a people from the debacle we witness daily in the news. But passing on the opportunity to explain in more explicit and meaningful detail to the American public, and the world, what has been done in the last three years abdicates responsibilities and in some measure hope for the future. Without an engaged public we cannot succeed in the long term. Without additional education in ways which can be received by the nation, the chance of insufficient public engagement increases.

If those 54 Senators stay where they are, perhaps their constituents will out them. If they are confronted with the decision with the evidence which is to come on a nightly basis if an impeachment trial is handled with care, perhaps there will be some stirring of conscious. With direct evidence which Republicans would call treasonous if implicating a political opponent, perhaps part of the independent bloc voter will become outraged and even the current Republican base will shrink.

With the in your face detailing of corruption and assault which makes paying hush money for silence from porn stars a minor footnote, perhaps some day, evangelicals will abandon this pathetic false prophet. With the cruelty of family separation and cruel incarceration of children on the screen in the living room, perhaps some of our friends will follow Christianity and not the Republican Jesus which opposes welcoming the stranger, feeding the poor, and is unconcerned about despoiling the environment.

The Hippocratic Oath of doctors to do no harm frequently has great appeal to my conservative nature. But there is a cancer ripping us apart. And that cancer is imperiling the earth and its inhabitants. Investigation and making public the information which will paint the picture of rot in a clear manner is a more sound strategy than sitting, waiting and hoping.

Speaker Pelosi knows everything I know and more. She is one of the few public figures to whom I can state that I have more confidence in her judgment than my own. I believe that she will be there to do the right thing at the right time. And that time is coming.