WHERE THERE’S SMOKE, THERE’S FIRE
There is a legitimate concern for any defense attorney that the jury will fall into the “where there’s smoke, there’s fire” trap – that the police would not have arrested the defendant if he wasn’t guilty, and the prosecutor certainly wouldn’t have tried him if he wasn’t guilty. Bobbie Lee Cook addressed this as, as well as mistrust of defense attorneys, in the following summation:
“I have a duty to perform which is just as significant and just as compelling as a soldier, a duty fixed by law, for which I offer no apologies and . . . which I am glad to perform.
The philosophy of what I speak is equally as important to you and your children in the country. Every man and every woman, irrespective of his race or creed or color, whether he is rich, whether he is poor, whether he is from Chattanooga or Meynardville or my little town of Summerville, is entitled to the same breath of fresh air in this country.
For over two hundred years ago, the founders of this Republic, meeting in Philadelphia, struck a Constitution which contained a Bill of Rights that has been with us for over two hundred years. And in that Bill of Rights, it says that in all criminal cases, the accused should enjoy the right to a speedy and public trial by an impartial jury, and to be informed of the charges, and to have the effective assistance of counsel for his defense, and the right to be confronted with the witnesses.
The jury under this system that was devised over two hundred years ago also had the duty and the responsibility to weigh the guilt or the innocence of two fellow citizens. It is not important that they may be Democrat or Republicans or independents, that they may be white, that they may be Baptist or Presbyterians, it is the fact that they are entitled to these rights.
The difference between the rights of Mr. Butcher and Mr. Steiner in this case and all other American citizens as how it would differ if they were in some Communist country, it would be the fact that for these two hundred years, thank God, that you cannot brand them as a felon or take away a penny of their money except by a unanimous verdict of twelve citizens such as you.
And it has been fought for and preserved in the jungle of Iwo Jima and Guadalcanal and the beaches of Amaha and Anzio-Nettuno, the Central Highlands and the delta of Vietnam and the Argonne, consecrated by the blood of patriots and ordinary citizens to preserve the rights of C. H. Butcher and Jim Steiner and all of us throughout this great land.
When each defendant comes into this court, he is cloaked with a presumption of innocence in his behalf that remains with him throughout the entire course of the trial until the Government establishes guilt beyond a reasonable doubt.
It is a strong burden. It is a necessary burden. It is a burden that is there because when your Founding Fathers wrote the Constitution and took notice of the Bill of Rights, they understood more about liberty and justice and freedom than my generation or my children’s generation, because these people had come here from England and France and Germany and the Highlands of Scotland and Ireland and the ghettos of Central Europe in order to escape the tyranny that they once had, the yoke of oppression that had been placed upon their heads and necks, and they understood it very well.
I speak to you of fairness, and I speak to you about justice. It is important that Mr. Butcher and Mr. Steiner get the same brand of justice that you would expect to receive. And it’s necessary to speak up for what is decent, even though it might not be the popular thing to do.
The overwhelming evidence in this case does not establish beyond a reasonable doubt that C. H. Butcher possessed the requisite degree of specific intent to condemn him as a felon, and it’s necessary for you to speak up, not only for his benefit but for your benefit and of your children and their children.
It reminds me of something that was said by a German pastor after World War II, a Protestant pastor, a man by the name of Martin Niemoller. He said, “When they came for the Jews, I wasn’t a Jew, and I didn’t speak up. And they came for the trade unionists and I wasn’t a trade unionist, and I didn’t speak up. Then they came for the Catholics, and I wasn’t a Catholic and I didn’t speak up. And they came for me, and there wasn’t anyone left to speak up.”
I’m not asking you for any favors. I am not appealing for sympathy, I am appealing to you to do what is right and just.
Two hundred years ago, when these young men and women arrived at this great constitutional birth, this Bill of Rights, they emerged from the Constitution Hall, convention hall, and they were going down the steps. A young lady came up to Mr. Franklin and said, “Mr. Franklin, what kind of government have you given us?” And he said, “We have given you a republic, if you can keep it.”
This jury, you bring together all of you from all walks of life, from all strata of society; you bring here a wealth of experience, a great background, a diversity, in many things: at least one veteran of World War II, a Vietnam Veteran, and others in many walks of life.
Use your common sense in this case. You don’t have to throw your common sense out the window. Render a verdict in this case which speaks the truth of this transaction, and that is the verdict of not guilty.”