An Unlikely Journey
A reminder from the Democratic nominee that justice depends on all of us
A few days ago as we watched the historic speech of Vice President Kamala Harris accepting the Democratic nomination I couldn't help but feel moved by her repeated references to her "unlikely journey." A journey that culminated around her mother's decision to pursue a dream and noble purpose in a foreign land under trying circumstances. It's a familiar narrative, yes, but it's also a narrative that speaks an important truth on what the American experience should be. Because regardless of whether we were born here, our personal narratives and journeys, like Harris's, didn't begin with us, they began with those who came before us, and the sacrifices they made. They began with dreams that probably had little to do with us, but had everything to do with the possibilities that this nation promised. And though the democratic process is messy, convoluted, and generally imperfect it has never been about perfection. Democracy has always been about self-determination and who we are as a nation at any given moment. But there was something else that Harris revisited in her acceptance speech about fairness. Relevant because the unlikely journey that placed me on the road to one day stand before the Supreme Court with my petition in hand, saying, "tell me that it is fair to be convicted of a crime without ever being afforded the opportunity to confront my only accuser," was as unlikely as every one of our respective journeys.
The Framers of this nation were all too familiar with "unlikely journeys," and when they drafted our Bill of Rights it wasn't about grandstanding or even political leverage, it was about protecting the people from the Government because they all knew, just as Lord Acton of the British Parliament said it over two centuries ago, "[p]ower corrupts, and absolute power corrupts absolutely!" And while democracy is meant to debilitate autocratic tendencies and flush out unfair practices, the Framers knew that We the People needed certain guarantees to safeguard our lives and liberties from would-be tyrants and governmental overreach that sometimes masquerades as an indifferent bureaucracy too busy to notice even the greatest of injustices. And fundamental among those guarantees was the Sixth Amendment's Confrontation Clause.
A clause that clearly reads, "[i]n all criminal prosecutions, the accused shall enjoy the right...to be confronted with witnesses against him." It is a bedrock procedural guarantee that goes back as far as the Roman Empire, meant to do more than just give someone accused of a crime a fair opportunity to defend themselves. The Clause is meant to safeguard the legitimacy of the very fact-finding process that we all know to be a trial. When a jury of everyday citizens is brought together to determine beyond a reasonable doubt if someone accused is actually guilty of a particular crime(s), confrontation (i.e., cross-examination) is the only tool a jury has to test the truthfulness of an accusation.
The Supreme Court has referred to the Clause as the "greatest legal engine ever invented for the discovery of truth." It's an opportunity for the jury to experience an accuser's demeanor, learn if there are any motives to lie or otherwise shift the blame, or discover any promises of leniency made by the prosecutor on behalf of the State. Which is why the same Court has referred to the Clause as the "crucible of cross-examination."
When confrontation is denied there is fundamental breakdown in the fact-finding process. The goal of justice has never been about affording someone a "perfect" trial, but it is about giving a "fair" trial. And though this might seem obvious or easy to comprehend, it's far from either because as a society we are rarely ever emotionally detached enough to afford anything even resembling fairness to a defendant. And, as the nation grapples with the uncomfortable truth that there are many wrongfully convicted, innocent individuals languishing in American prisons there is certainly no social or political consensus on how to address a reality so unfair that it undermines the very tenets of Life, Liberty, and the Pursuit of Happiness.
Recently, many of us watched on GMA how an innocent man named Christopher Dunn
was released after having spent more than three decades behind bars. It certainly was not the first time we saw something like this, because there is an entire registry
dedicated to these tragedies. And there is no way to say that justice has prevailed, because Mr. Dunn stood before numerous courts over the decades and all of them either ignored or discounted the possibility of his innocence. And as I followed his triump from behind a predicament that's no so different, I cheered, not the justice system, but for his unwavering relentlessness that didn't deter from the many disappointments he confronted over the last three decades.
Vice President Harris made it clear that securing Life, Liberty and the Pursuit of Happiness for every man, woman and child isn't just the job of our elected leaders--it's everyone's job! Which is why I am asking for your support in making some noise and making every justice-minded organization take note of an obscure case out of New Mexico that has made it's way to the Supreme Court. A Court that, though divided, is not indifferent to the ideal of fairness that underwrites every aspect of what this nation stands for. Recently, Justices Sotomayor, Breyer, and Kagan wrote in a dissenting opinion that the guarantees of the Sixth Amendment constitutes the "very foundation for our adversary system of criminal justice." They even went so far as to remind the Court and the nation that "[o]ur Constitution insists...that no matter how heinous the crime, any conviction must be secured respecting all constitutional protections." Which tells us that no cause or fight is lost just because the outcome we seek appears unlikely.
I know what it's like to place hope for justice in the hands of an attorney and a judge waiting for the unlikely outcome that is fairness. I also know what it is to be disappointed when those same individuals deliver the heart wrenching news that the court has once again chosen to ignore my claims of constitutional injustice, unfairness, and innocence. And I know what it's like to have expended all my financial resources on legal fees and have those same attorneys look at me and say, "well, this is as far as we go, unless you can come up with some more money."
These are all difficulties and they are not unique to the human experience. What disappointments like this have taught me is that nobody is ever going to fight for a cause with more passion, integrity, and relentlessness than someone personally involved. Lawyers, just like our political leaders, are our advocates, yes, but they will never be as committed to a cause as we are. The boot of injustice is not on their necks, it's on ours. And though they will often times stand with us and fight, it is ultimately our responsibility to find new relief, ideas, and ways in which to continue pursuing the agenda at hand. And when they can go no further, we look to them and say, "thank you for having come this far, but I can't stop here, because my victory, life, and liberty is out there somewhere and I must find them."
Please take a moment to consider your own unlikely journeys and ask yourself this, is the right to confront our accusers (whoever these individuals might be) worthy of a few moments of our attention to prevent a dangerous precedent from being solidified into law? In other words, should we defend what the Framers of this nation and our Bill of Rights sacrificed to give us? Or, should we just dismiss the Sixth Amendment as something antiquated and unnecessary?
If you believe in the kismet of an unlikely journey please take a moment to share this post. Share it with anyone you might know who might care that a very important issue is currently before the Supreme Court, as it has been numerous times before. Because unless we make the Court aware of our collective insistence that the Sixth Amendment will not be dispatched into the darkness of irrelevance, that's precisely what will happen. And tomorrow someone we know will find themselves embarking on the unwanted and unlikely journey of being accused of a heinous crime and having no way to defend themselves because the Sixth Amendment is just something we remember.
