Two weeks ago, on October 31, a court in Madrid handed down verdicts in the March 11, 2004, Atocha train station bombings that killed 191 people and wounded over 2,000 others. They were, on any standard of substantive justice, a major disappointment—three murder convictions out of 28 defendants, others convicted, barely, on far lesser charges, such as weapons possession, or minor conspiracies, or mere membership in a terrorist organization.
The court, it must be said, acted scrupulously within the confines of the Spanish criminal code. It excluded vast amounts of hearsay evidence, for example, collected from tapped telephone conversations in Italy, which was subject to much debate about Arabic translation, reliability, and provenance. The problem is that any outside observer, looking objectively at the pile of circumstantial evidence and not from the standpoint of that very special social game known as the criminal law, would have reasonably concluded that those being tapped, and many, indeed overwhelmingly likely nearly everyone on trial, had something culpable, big or small, to do with the terrorist plot.
We accept that freely, if not happily, in the case of ordinary criminality. Part of the reason we do so, however, is that we understand that the stakes are not as high in ordinary criminality as they are in the case of jihadist terrorists bent on suicide and mass murder. We accept—and should accept—a high standard of proof in order to protect the innocent in ordinary criminality, although a few minutes’ conversation with any public defender will suffice to show that in reality, there are relatively few genuinely innocent criminal defendants out there. They exist and deserve all the protections Western systems of justice offer—and, as the Duke lacrosse case demonstrates—in our ordinary justice system, the prosecutor has too much power and too much discretion.
