Guilt Brokering.

The courtroom definition of guilt is whatever a judge or jury says it is- as long as it’s proven “beyond a reasonable doubt.”

“Guilt”  according to the dictionary is “the fact of having committed a breach of conduct especially violating law and involving a penalty.”

The key distinction from the courtroom version being the removal of the word “fact” and replacing with proof of the matter only “beyond a reasonable doubt”- something, quite obviously, less than having proven an actual fact.

And that’s the “theoretical” definition of legal guilt. If the judge or jury is willing to work on hunch or “gut feeling” then, really, forget everything I just said because none of it matters (and you’re probably still going to spend the rest of your time mushing spicy cheetos into your prison food for a little extra flavor).

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Facts are things you can prove. They’re things that are “out there.”  Things verified by reliable information. Facts are truth.

In a system that is overwhelmingly biased towards pleas of guilty, guilt is a  commodity nobody wants. It has various intensities, shades and magnitudes. It’s assigned by power brokers.  Guilt is broken up and doled out at disinterested recipients.

Guilt is a burden that can turn a witness into a defendant or turn the accused into an informant. Guilt is the negative attention of those in control.

Officer Lawman sees a baggy with traces of a green plant-like material on the center armrest of the rear seat in a car and tells all four occupants, “If somebody doesn’t claim this you’re all getting arrested…”  Somebody- often the guy who’s already been arrested several times, even when it’s not his- always claims it.

One of them is really guilty or all four of them are “sorta” guilty, right?
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Maybe the good officer shows up to that same house he’s been called to nearly every night and, well, “It’s the third trip here tonight, so somebody’s going to jail.”  Who cares if they actually should? Truth doesn’t really matter. Doling out a little guilt solves the problem, at least for the time being.

Detective Truthdoesntmatter sees a kid with injuries, separately interrogates both parents, all 4 grandparents and two siblings, and threatens each one that “if somebody can’t explain how those injuries got there, the child will be taken to an orphanage.”  If the good detective finds out who harmed the child, though, only the “harmer” will have issues.  Are you letting the cops take your kid to the orphanage or are you coming up with a story about how maybe your spouse might have accidentally done something, possibly?

If you’re not willing to come up with that story, what’s your mom going to tell the cops when they threaten to take her grandkid and pin some nonsense on you? She’s going to say what she thinks is best for her family. Truth be damned- somebody is guilty.
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It only becomes more powerful the farther along the system you go.

Four guys go to rob and murder a rival gang member. All of them get charged, but how strong is the case when all the living witnesses are defendants (and didn’t talk to the police)?  Prosecutors decided who they really want to go after (maybe the guy with the worst record… or the guy who they think is the biggest jerk) and ease a little of that guilt burden of the guys they want for witnesses.

Johnny Baddriver doesn’t want to take the government’s offer and wants to stand on his pesky, annoying right to a trial (possibly arguing some ridiculous technicality, like that he’s actually innocent).  Well Johnny could have been charged with something more serious, so we might as well intensify that guilt and up the charges before he actually gets his day in court.  If we turn up the heat he’s less likely to risk a trial.

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Guilt is power. Guilt is control. Guilt is not truth or facts.

It’s sometimes created from thin air– often from the mouths of jailhouse snitches, mistaken witnesses, or others with a vested interest in a case (like an ex-spouse, or hated neighbor).

Seeing guilt as power the government exerts upon people is the only way to understand the system.

Doing so it becomes more obvious that every interaction with investigators may walk you into a power game you don’t want to be a part of.

So go talk to the police at your own peril and deal with the aftermath. I wouldn’t, but I’m also running out of ways to say that.

Author: matthaiduk

Matt Haiduk is a criminal defense lawyer in Illinois. He loves his dog. And pizza.

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