American jurisprudence has long upheld the Blackstone rule. "It’s better that ten guilty persons escape than that one innocent suffer.” English jurist William Blackstone first established this foundational concept in his “Commentaries on the Laws of England” published in the 1760s.
Benjamin Franklin raised the stakes ten-fold. "It’s better 100 guilty persons should escape than that one innocent should suffer".
Not everyone agrees. Bismarck, the German strongman Henry Kissinger called “the man of blood and iron,” turned Blackstone’s formula upside down. "It’s better that ten innocent men suffer than one guilty man escape.” Pol Pot agreed. He was the Cambodian dictator responsible for executing 3 million of his fellow countrymen. Pol Pot didn’t really care whether anyone was innocent.
So, which is it? You might ask State Representative Bob Nicholas. The Cheyenne legislator parodized the Blackstone rule, establishing the Nicholas rule. “It’s better to use the legislature to convict a man when the criminal justice system proves inadequate.”
Andrew Johnson of Cheyenne spent 23 long years in prison before DNA evidence exonerated him. The Judiciary Committee spent a year studying how to make that right. Legislation was proposed compensating wrongfully convicted people. The bill was defeated on the final day of the session. A conference committee couldn’t agree with an eleventh hour amendment offered by Nicholas.
Nicholas strategically offered his amendment when there was no further opportunity for testimony or hearings. He proposed requiring anyone wrongfully convicted to return to court to prove they are innocent even after the prosecutor dismissed the charges and the court had “entered an order of actual innocence and exoneration.”
In America, a person is presumed innocent. But Nicholas presumes those wrongfully convicted are guilty until they prove their innocence. His amendment imposed an onerous and expensive hardship, shifting the burden of proof to the accused.
Nicholas targeted Andrew Johnson with a preposterous argument that the DNA evidence was meaningless, that Johnson was, despite it, guilty. Nicholas outlandishly claimed this case is like “the OJ Simpson case,” adding, “the idea that he didn’t commit (the crime) is ridiculous.” He “knows” because, he says, he met with the prosecutor, Laramie County District Attorney Scott Homar.
If Homar has sufficient evidence of Johnson’s guilt, he should do more than talk to legislators. He should try the case. Homar could have chosen to do so. He didn’t. He decided the evidence was insufficient.
At the time Homar said, “Due to time lapse, unavailability of physical evidence, unavailability and credibility of witnesses and the recent DNA evidence, we have concluded that we are no longer able to overcome our burden of proof,” the news release says. “We are therefore ethically obligated to dismiss the charges against Mr. Johnson at this time.”
The District Attorney is ethically bound to produce facts. Representative Nicholas was under no such “ethical obligation” on the House floor
What makes Nicholas especially disingenuous is his own experience with the justice system. Facts surrounding criminal charges filed against Nicholas are well known and needn’t be repeated here. Those charges were dismissed, saving Nicholas the experience of being convicted and imprisoned for a crime for which the state later admitted it has insufficient evidence.
What makes Nicholas’ behavior poltroonish is that as a lawyer he knows the import of the DA dismissing the charges against Johnson. Even so, Nicholas was willing to make allegations against a citizen, but only while under the cover of legislative immunity. (I resorted to a thesaurus for just the right word. The right word in this case is “poltroonish.” It means “utter cowardice.”)
Mr. Johnson was twice denied a fair trial; first in the courtroom because DNA evidence wasn’t yet available; second on the floor of the legislature where there are no rules of evidence and too few ethical standards.
Nicholas should stand trial before a jury of his peers, i.e. the voters. It’s better, Blackstone might agree, that one legislator lose his job for poltroonish conduct than others get the idea that the voters accept this behavior.