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Almost everyone in the country now knows William Kennedy Smith. We also know Patricia Bowman, the accuser in what became not just a trial, but a soap opera-style media event, punctuated with x-rated descriptions of the conduct in question. This event was played out in our homes thanks to the ubiquitous eye of the television camera. Not to be outdone, the print media proceeded to report, and then dissect, the events. Pundits from every corner of the legal community came out to critique the judge, the defense attorney, the prosecutor, the witnesses, the jurors, and every other aspect of the proceedings. Lawyers who had never tried a case were telling us what a poor job the prosecutor did, what senseless rulings the judge made, and how slick the defense lawyer was.

So what can we learn from these proceedings, other than the fact that all kinds of naughty things can be said on the air, as long as it is carried on a “news” program? One thing that I feel worked its way through the thicket of the trial and its aftermath is the unquestioned resilience of the bill of rights. As a country, it is fitting that we should recognize and celebrate the 200th anniversary of the passage of these first ten amendments to our constitution. At the same time, we should also rededicate ourselves to the task of insuring their continued vitality.

Regardless of who you feel was telling the truth in the Smith case, justice prevailed–the system worked. We should be proud of it! The system worked in the Smith case because several of our inalienable constitutional protections were at work–ones ingrained in those first ten amendments to the Constitution of the United States known as the Bill of Rights. Two of these most important additions to our original C Constitution are the Fifth and Sixth Amendments. The Fifth Amendment states in part that “no person…shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, with out due process of law..” The Sixth Amendment provides that “in all criminal prosecutions, the accused shall enjoy the right…to have the assistance of counsel for his defence.”

Both the due process clause of the Fifth Amendment and the assistance of counsel clause of the Sixth Amendment have been the subject of continual litigation and refinement since their passage 200 years ago. The United States Supreme Court, as the final arbiter of our constitutional protections, has clearly held that “due process” includes the requirement that the prosecution have the burden of proof in a criminal case, and that the defendant has a presumption of innocence. Thus, the State cannot charge you with a crime and require you to prove that you didn’t commit it. Nor can the State convict you of a crime by proving that you may have done it, or you probably did it. The prosecution is required to prove you guilty beyond a reasonable doubt. That’s a tough standard. It should be.

Think back to conversations that you had about the Smith case. I’ll bet something like this was said: “Well, don’t you think he’s guilty? Don’t you think he raped her? What you think Will Smith may have done or not done is perfectly acceptable discussion around the water cooler, but it has no place in a court of law or the jury room. None of us would want to experience the pain, the humiliation, the loss of freedom (and sometimes life itself) that goes with conviction of a crime, based upon what people “thought” we did. As Thomas Jefferson once wrote, “the sword of the law should never fall but on those whose guilt is so apparent as to be pronounced by their friends as well as their foes.”

The Supreme Court has also held that the “assistance of counsel” clause of the Sixth Amendment means effective assistance of counsel. Some of you may say, “well, o.k. The guy has a right to be proven guilty beyond a reasonable doubt, but I still feel like he did it. If it wasn’t for the fact that he is a Kennedy, that he had all kinds of money to hire that slick defense lawyer, he would have gotten what he deserved”.

Was Will Smith acquitted because he was well represented? Did Will Smith subvert the system because he could afford the best? I submit the answer to the first may well be “yes”, but the answer to the second is a resounding “no”!

These two arguments are inseparable. Smith was well represented, without a doubt. He was able to hire Roy Black, who in turn was able to employ an array of experts to assist him in various phases of the trial. Is that bad? Does that mean justice was not served? Absolutely not. What it does point out is the fact that most of the time defendants do not play on a level field when matching resources with a state or federal prosecutor.

Conviction rates are high, and they are high mainly because good prosecutors bring good cases. When I was a federal prosecutor, time and resources were on my side. Although there were always some budget restrictions, I had access to any expert testimony that was necessary to assist my prosecution. Government laboratory experts were in abundance, including forensic experts from all different areas : handwriting, fingerprint, blood, chemical, electronics, ballistic, psychiatric and psychological, etc. It was a rare occasion when I faced a defendant who had expert testimony of equal quantity and quality.

The average citizen is usually overwhelmed when called upon to defend himself. A great majority of defendants are unable to afford any attorney, much less the likes of Roy Black. If they are to be represented at all, they must rely on the services of court appointed attorneys, or public defenders where they are available. Most of these attorneys are certainly competent and effective advocates. But they lack the funds to match resources with a government investigation and prosecution. Budget cuts in this state, and other states as well, have severely impacted the quality of representation an indigent defendant can expect. The criminal justice system is in a crisis situation. At the present time, appointed attorneys are not receiving adequate compensation for their services, and public defenders are having to operate with a fraction of the staffing level that effective representation requires. Consider the plight of Knox County Public Defender Mark Stephens for example. Stephens and his staff have caseloads that would choke the best private criminal defense practitioner. The sheer volume of cases required him to recently obtain a 60 day stay from further appointments in General Sessions Court. His three attorneys assigned to Sessions Court were projected to represent, on an annual basis, over 4,600 individuals charged with over 8,600 cases! Stephens will probably have to seek an extension of this stay, and will eventually have to request a similar order from the Criminal Court Judges of Knox County.

What we have to ask ourselves is whether we as a nation still believe in equal justice for all. Or do we merely want to pay lip service to the concept of “due process” when a poor person is facing the loss of liberty, and the price of equal justice comes out of our pockets? It’s easy for us to take that approach and to say that the due process and effective assistance of counsel concepts protected by the Bill of Rights are satisfied if a person’s attorney awake and breathing during the trial. Unfortunately, this would appear to be the close to the current standard established by the United States Supreme Court. In other words, maybe the framers of our Constitution didn’t really mean that an individual facing loss of liberty was entitled to “effective” assistance of counsel–just someone to keep him company during the trial and the inevitable sentencing hearing. After all, it would cost money to insure that every indigent defendant had counsel who actually had time to prepare, and resources to investigate, every case.

This approach allows us to avoid the real problem and instead to rationalize the Smith case as an example of criminal justice excess. We can say that because his family had an endless supply of money, he was able to “buy” a favorable verdict that would not have been available to the average working stiff. That his army of lawyers, investigators, and experts were able to march in and overwhelm a poor, hapless prosecutor.

This view is certainly widely held, based upon the comments I have heard. But it is a much too easy way out. We should instead have at least a lingering doubt, maybe even twinge of guilt, for that indigent citizen accused of crime–the one that we have condemned to a very different standard of due process and effective assistance of counsel. Should we not take this occasion to reexamine the quality of justice accorded the poor? When the legislature is forced, kicking and screaming, to commit tax dollars to indigent defense funds, will we support our representatives instead of screaming that they are irresponsible, or worse, soft on crime?

This is not to say that we haven’t made progress in protecting the guarantees of the Bill of Rights. After all, it was less than sixty years ago that the infamous “Scottsboro boys” trials were held. At that time, several black men were accused of the rape of two white women. They were indicted, arraigned, tried, and sentenced to death within a matter of days, even though they were not given a chance to obtain counsel, and counsel was not appointed for them until the day of trial. Today, we look at the facts of that case and are, quite rightly, shocked. Today we would say, “no wonder the Supreme Court reversed these convictions”. But sixty years ago we might not have said that. People then “thought” the defendants were guilty, that they got what they deserved. The Alabama State Supreme Court affirmed the death sentences. It took the United States Supreme Court to reverse these miscarriages of justice. I therefore offer this assessment of the Smith case. The verdict did not represent a subversion of justice and the Bill of Rights. It was instead the Bill of Rights employed to its fullest. Two sides, relatively equal in resources, locked in legal and factual combat. In this case the defense prevailed–it should have. Was it justice? One cannot necessarily look at the verdict and determine whether justice was accomplished. We sometimes forget that justice is a process, not a result. As Daniel Webster eloquently stated, “justice is the great interest of man on earth. It is the ligament which holds civilized beings and civilized nations together. Thomas Jefferson would have agreed. We have come a long way in our journey to obtain justice for all, but the journey is far from over. For instance, where would Jefferson’s “sword of the law” fallen in this case if the defendant had been a poor black man from Scottsboro?

– Published in the Knoxville News Sentinel, January 5, 1992