Like most things, let’s take a step back and actually THINK rather than simply reacting to news stories from the Echo Chamber.
I was actually going to come back and do a show about this on Thursday, but a very great friend reminded me that (a) I am on vacation and (b) Ben is growing up really, really fast. So I decided to dictate some notes about it and I will leave with those being posted.
Judge Sarah Backus is being roasted alive by the Political Right over her refusal to accept the State of New Mexico’s argument that the defendants in the now infamous New Mexico case are actually dangerous. She said in her remarks that the State of New Mexico (a/k/a “the Government”) had failed to demonstrate that any “choate plan” actually existed as the State had alleged to take any actions that might represent an actual danger to the rather eccentric population of Northern New Mexico.
I am not arguing that the Judge is correct.
But I am intrigued by two parts of what has happened.
First, if we took a blind eye to the religious faith of those involved here, would there be any reasonable evidence of a “choate plan” to threaten the peace of Northern New Mexico? I understand that you cannot actually do that. Their religious faith features prominently because of tensions and other points of the case that began with a religious belief being exercised, albeit illegally.
Remember – Beliefs are protected by the 1st Amendment, actions are not necessarily protected by it.
So… if a Christian, it was Georgia so let’s say an estranged but devout Southern Baptist, had reason to believe that his child was demon possessed and decided to remove the child from the custodial home, what would be our reaction?
If that same devout Southern Baptists went to a rural place some 1500 miles away and began to live an aseptic lifestyle believing that would free his child from the demon possession, would we have a similar objection? Once the child is dead, it’s a different matter, but would a belief that the child will be resurrected be a matter of religious belief or criminal action and a danger to the public?
Again, I am not staying that Judge Sarah Backus’s ruling is correct. I am saying that there MIGHT be an alternative way to view this.
As far as we are aware, the only evidence that was presented of a terrorist plan was from the statements of minor children taken from the family. If the devout Southern Baptists denied that same story, would you be more or less inclined to accept their denial?
My point here is that while there MAY be some element of terrorism and there MAY be some element of deep concern to the government, it is incumbent on that Government to actually prove – to a reasonable view – that this plan which the children are said to have proclaimed actually exists.
And this is my second point of intrigue in this story – Judge Backus stated that the State had failed to demonstrate that any “choate plan” actually exists. In other words, she does not accept that the children who informed the Government of this alleged plan are completely believable.
I get that Law Enforcement says that there were kids with ammo, and one with a holster (if not a firearm) and that at least one child was said to have told them that they were waiting for the resurrected Jesus to inform them of places that need to be destroyed. Again, if this child was the son of a devout Christian who lived in a desert by themselves would you more or less inclined to believe the story?
The law requires that the defendant be treated equally under the law. Is it possible that our outrage is driven less by the facts as presented in Court and more by our biases?
Again, I AM NOT SAYING THAT JUDGE BACKUS DID THE RIGHT THING.
I am saying that we are judging a case for which we do not have all of the facts, we do not know the relevant case law, nor do we fully understand the culture and the legal processes in New Mexico.
The Judge said that there was no evidence of a “choate plan.”
That word that should attract our attention. In some circles, it means “perfected,” or “complete,” in which case she would be saying that while there might be such a plan, it was either not completed or that the prosecution failed to show that it either existed or was in some form or another achievable. To a reasonable mind.
In other legal circles, that word, “choate,” is problematic. Why? Because technically, the word does not actually exist. I’m serious. It is not found in the Merriam-Webster dictionary (except as a proper Name), and no less than Justice Antonin Scalia is on record roasting an attorney who tried to use the word before the Supreme Court. In point of fact, virtually the only actual discussion of the word comes from that moment when Justice Scalia blasted a lawyer in front of the Supreme Court for not just misusing the word, but for using the non-existent word in the first place!
So why would Judge Backus, who HAS to know that, choose that specific word – a highly unusual word – to describe the plan of the defendants and the failure of the Government to demonstrate that it existed?
That’s kind of the answer, isn’t it? The word doesn’t exist, and in her view, accepting the argument made by the Defense, neither does the plan.
If we accept two things – one, that in our system the defense has wide latitude and the State has very narrow latitude; and two, that we presume innocence, what should we conclude?
The defendants are being released with ankle monitors and, no doubt, close physical monitoring while the investigation of the death of the child and of the alleged plan continues. If these were devout Christians, would we object to it or celebrate the success of the defense in protecting their rights?
Instead of calling the Judge and lambasting her for making a judgment based on the evidence she has seen balanced against the laws she is sworn to uphold, shouldn’t we question the Governments energetic willingness to confine people who have not yet been found guilty of anything? Again, if this were a Christian Pastor and his family – weird though they may be – would you be more or less likely to accept the ruling?
Do me a favor while I am gone on vacation, just THINK instead of reacting the way the Talking Heads tell you to react. Sheep follow. Freshmen run.
Be thoughtful and remember the words of the Solomon:
The first to present his case seems right;
Till the other party examines him