Remembering Poor Richard's warning

When Dr. Benjamin Franklin, a Pennsylvania delegate to America's 1787 Constitutional Convention, was asked: "Well, Doctor, what have we got, a republic or a monarchy?" his reported retort was: "A republic if you can keep it." The American Rule of Law, with its right to a trial by a peer group of unbiased jurors, and the institutionalization of three independent, competing governmental branches, are the pillars of our American Republic. They are the constitutionally designed bulwarks to prevent the type of monarchy from which we had recently separated. And what has happened since? I, along with every other every American lawyer for generations, was schooled in the sanctity of fair jury trials and requirements for the admission of relevant evidence. And, like every other trial lawyer, I have, on occasions, had evidence excluded. Sometimes it was unfortunate. Other times it was devastating. Sometimes it made me angry. I usually thought I was right and the judge was wrong. Sometimes I told myself, "Well, I gave it the old college try, and it's likely that the offered evidence was irrelevant, or immaterial, or its prejudicial effect outweighed its probative value." However, I had the right to appeal. Exclusion of trial witnesses happens less frequently. Generally, judges tend to allow more evidence than less. Most trial judges figure that if a combatant lawyer wants to offer a witness for direct testimony (and the nearly inevitable cross-examination), that's up to him or her. Of course, I've had an expert witness excluded a time or two, and that can be devastating to a trial. Trial lawyers aren't alone in understanding what the word "trial" means. Most Americans understand the concept. When I was younger, I was exposed to television trials where the accused was always innocent and Perry Mason never failed to outfox the guilty into blurting out a confession. Then came "L.A. Law" divorce lawyer and general slime ball Arnie Becker. Some of us learned about country trials from Andy Griffith's Ben Matlock. Most of us cheered for the atypical movie heroes such as Paul Newman's portrayal of the "down on his luck," alcoholic attorney, Frank Galvin, in "The Verdict," and the even more colorful trial lawyer portrayed by Joe Pesci in "My Cousin Vinny." Certainly, every lawyer admired the trial skills and determination to do the right thing displayed by "To Kill a Mockingbird" exemplar Atticus Finch. Of course, on occasion, make-believe trials have been supplanted by real trials on television: "If the glove doesn't fit, you must acquit!" Although America may labor under various illusions or romantic concepts about lawyers and trials, they understand certain things. They know trials contain witness testimony and evidence (e.g., the rain-drenched, shrunken black leather glove held up by Johnnie Cochran). They know that a trial is composed of lawyers telling the jurors what the evidence will be at the beginning, spending the majority of the trial introducing the evidence, and arguing about what the evidence was at the end. The American form of trials is not guaranteed in most countries. In many countries, there is no right to trial by an impartial jury of peers. I've visited some of those countries. I've seen money handed out to interested parties (like prosecutors and judges) in the middle of a trial. Some countries don't even attempt to have real trials, and in other countries the "real" trials are a sham. The evidence doesn't matter, the results are preordained, and the trials contain more elements of scripted television than justice. All of which leads us to the state of our republic. The impeachment trial of the president of the United States appears to be a sham. Anybody who thinks the vast majority of Democrat Senators have not made up their minds is living somewhere deep in Wonderland. Similarly, Senate Majority Leader Mitch McConnell has acted in a clear, straightforward, and historically troubling fashion in announcing his biases, and doing everything he can to implement them, despite taking the required oath of impartiality. Like Senator McConnell, jurors in America take an oath. They promise to listen to the evidence and remain impartial and undecided until all of the evidence is presented. They are prohibited from talking to their fellow jurors, their families, or anyone else, about the evidence, lest they be improperly influenced. If a prospective juror declares he/she is biased, or worse, has already made up their mind, the judge will remove him/her from the panel of potential jurors. If a juror, once selected, announces he/she intends to work hand-in-hand with either the prosecutor/ plaintiff, or the defense counsel, the judge will declare a mistrial. What kind of lesson is the Trump impeachment trial offering our children in civics classes, America's future jurors, or other countries? Can anybody viewing this spectacle think they are watching an impartial American trial? It could be that there are a few Republican and Democrat senators who have not really made up their minds as to the president's guilt or innocence, but the votes to exclude the evidence, including witness testimony, is neither excusable nor consistent with American legal principles, or the intent of the framers of the Constitution. Those votes are nothing less than a direct attack on the American concept of a trial. Effective oral advocacy is laudable and if we listen to the lawyers and politicians representing both sides on the floor of the Senate (a place where I once had the honor of being a doorkeeper), some of them sound pretty good. We also know lawyers are supposed to zealously represent their clients. However, they are ethically constrained from lying about facts and intentionally misleading the trier of fact, whether judge, jury, or, in this instance, the United States Senate. For most lawyers, the impeachment trial process is such a sham that it is painful to watch. There is no good excuse for refusing to subpoena documents that are inarguably relevant to the case. The evidence needs to be admitted and considered before the Senate jurors render their verdict. There have been dark times, distorted trial results, and miscarriages of justice in America before. An entire newspaper could be filled with the list. This is different. Here we have the historic trial of the president of the United States, presided over by the chief justice of the United States Supreme Court, and an attempt is being made to keep the pertinent evidence out. In criminal trials, the prosecution is required to inform the defense of any exculpatory information it has. It is prosecutorial misconduct to withhold the evidence, and a prosecutor who does so will find himself in serious trouble. In this case, the president of the United States seems to be gloating that he has relevant evidence that the House and Senate do not. He recently proclaimed to an international audience: "We have all the material; they don't have the material." Whether the president is guilty or not, and, whether politics prevail in the vote to acquit or convict, if, along the way, we forsake the essential safeguards of our Constitution, the damage to America, its Rule of Law and our separation of powers, is potentially catastrophic. At a time when we are constantly exposed to crises by the media, it can become difficult to measure the seriousness of any particular problem. In this case, we are taking the challenge to our Constitutional safeguards too lightly. Since its very beginning - at the Constitutional Convention in Philadelphia - our great American experiment has been the beacon of light to those around the world who have had to face oppressive governments or corrupt judicial systems. Our light is flickering. Having overcome crises in the past, Americans seem to have confidence that, even in bad times, we shall prevail. That may be true. We've done pretty well for almost 250 years, but maybe it's time to contemplate the stern face of the guy looking back at us from our hundred dollar bills. Maybe we need to think about what is most important to the American Republic, and perhaps it is time to weigh what we need to do to "keep it." ----- © 2020 Under Analysis, LLC. Under Analysis is a nationally syndicated column of the Levison Group. Mark Levison is a member of the law firm Lashly & Baer, P.C. Contact Mark by e-mail at mlevison@lashlybaer.com. Published: Fri, Jan 31, 2020