Legal Defence [sic]: The Scarface Way (What’s wrong with the 6th Amendment)

So you think our 6^th Amendment ensures a fair, streamlined judicial process? Maybe you’re right. But have you considered it also solidifies lawyers as the most essential profession in America. And given the right set of circumstances, could make all laws meaningless.

Amendment VI: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

As someone who relies heavily on spell check to fix the transposition of C’s and S’s, I can appreciate the spelling of defence above. Language has changed and evolved over the 230+ years since the Bill of Rights was penned. We’ve learned from my earlier arguments that the first 10 Amendments throw lots of concepts into single sentences. No difference here. There are at least 6 important ideas, depending on how you decide to separate them. I’d like to bullet point my qualms about the first 5 before delving more deeply into defence counsel than just its spelling.

That’s the night that they hung an innocent man. Well, don’t trust your soul to no backwoods Southern lawyer, ’cause the judge in the town’s got bloodstains on his hands.

–The Night the Lights Went Out in Georgia

1. Speedy & public trial: The interpretation of speedy is a completely subjective one. Our U.S. legal system often takes far too long for cases to see their day in court. Of course, we don’t want to go to the other extreme as the song portrays: sham trial, no jury, same-night execution. Proper channels are necessary, but too often abused.
2. Impartial jury: With social media and 24-hour news coverage, it’s next to impossible to conjure a group of 12 jurors that hasn’t already formed at least a semblance of an opinion about all but the most minor, unnewsworthy crimes.
3. Nature of the accusation: I may be wrong about what this segment actually means. I seldom do research, preferring instead to fly by the seat of my favorite HOMAGE sweatpants. After someone is indicted, evidence needs to be shared with opposing counsel. Wouldn’t it be a whole lot more entertaining if each side were permitted one surprise witness or piece of evidence? Make lawyers think on their feet without the option of requesting a recess, harkening back to that Lincoln-Douglas debate prep of youth.
4. Confront witnesses: I suppose all those speed trap cameras would plead the 5^th during cross-examination if forced to take the stand. Let’s just agree to outlaw these!
5. Witnesses in favor: I believe this compulsory process relates to subpoenaing people to testify. It reminds me of when somebody at the pharmacy complains they shouldn’t have to wait 5 minutes for an immunization. Do you really want to rush—and piss off—the very person who’s about to stick a 1-inch needle in your arm? Similarly, does a lawyer want their defense to rely on someone who doesn’t want to testify, allowing the potential for more harm than service to their cause?

This brings us to Assistance of Counsel. We’ve all heard about how Al Capone couldn’t be fingered for his likely involvement in the St. Valentine’s Day Massacre, or any other hits he may have ordered or carried out personally. Eventually, though, Al got pinched for tax evasion and prohibition charges. Nobody cared why Public Enemy No. 1 was sent to prison, they just wanted him off the streets. Let’s explore how the fear and terror imposed by Capone could have spelled the downfall of a world power.

Imagine if Scarface had his cronies murder his 1^st attorney. And his 2^nd. The 3^rd lawyer cowers in fear after a photograph of his wife and kids is delivered to his office. Soon no lawyer will agree to represent the gangster. The judge in the case appoints counsel to fulfill the 6^th Amendment’s directive. The first few attorneys opt out with seemingly legitimate excuses. Finally the judge mandates the next public defender he appoints represent the client or be disbarred. Lawyer after lawyer continue to choose the latter, fearing a life of unpaid student loan debt far less than the certainty of imminent death.

The judge realizes that between Scylla and Charybdis lies an impossible situation. If he continues with this charade, no lawyers will remain in the United States to fulfill the 6^th Amendment’s mandate of Assistance of Counsel for our murderous defendant. But far more monumental than just Al Capone going free, is the knowledge that every other accused criminal across this vast country would as well.

With no lawyers remaining in the U.S., claims would be filed by every prisoner on their own behalf, demanding a retrial. Their defense counsel’s recent disbarment argued as proof of inadequate representation. No lawyers for new trials. All prisoners released. Laws become meaningless, as no attorneys exist to defend the accused. Arrests are still made, but each suspect’s release is inevitable. Police—fed up with putting their lives on the line just to have the same scumbags released time after time—begin to enact their own lethal form of criminal justice. These cops are arrested. But they, too, face no legal recourse and are released.

The 6^th Amendment threatens to beget a land of unenforceable laws.

So, you still think the 6^th Amendment ensures a fair, streamlined judicial process? Okay okay yeah yeah! This scenario is unrealistic. I get that. Is it possible, though? Umm . . . probably not. Then again, before January 6, 2021 I’d have said it was totally impossible for American citizens to assault the U.S. Capital. And if nothing else, Giuliani and Dershowitz will always be there as “Assistance of Counsel for his defence.” So, I guess, yeah, come to think of it . . . You’re Probably Right.

[027] January 13, 2021