So I’ve written a bit about TSA, about scope-and-grope, about the minute risk of air travel, and about the popular “whatever it takes” response to complaints about the TSA’s invasion of our liberty and our privacy.
So what does any of this have to do with the tao of criminal-defense trial lawyering?
As a member of society, I am pissed off by “whatever it takes.” How dare these submissive scared quislings surrender my children’s freedom so that they can feel safer?
As a criminal-defense lawyer, I am worred by “whatever it takes.”
“Whatever it takes” is a strong authoritarian statement. Not only does the speaker want the government to solve the problem, and not only does he want the government to do what is necessary, but he also trusts the government to decide what it takes and disregard the cost. It’s an invitation, in response to fear, to governmental overreaching. “Whatever it takes” is a demonstration of the effectiveness of make people afraid.
Like it or not, these whatever it takes folks are on our jury panels, and are making judgment calls—whether to believe the police officers, what “beyond a reasonable doubt” means, whether to follow the jury instructions, and so forth—that can make or ruin our clients’ days. They are scared. They are freaked out by terrorism, but they might also be freaked out by rape or child abuse or murder or robbery or drug trafficking or drunk driving anything else that the media and the government have blown way the hell out of proportion. Confronted with an opportunity in the jury room to maybe make themselves a little safer from one of those dangers at the cost of someone else’s liberty, what’s to stop them from doing whatever it takes?
We can’t do anything to rid society of these people, but we can try to keep them from serving on our juries. “Whatever it takes” is so strongly authoritarian that it might form the basis of a good scaled jury-selection question: “The government should do whatever it takes to [solve the problem of the day]. Strongly agree / Agree / Disagree / Strongly Disagree?”