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Jurists schooled in the art of killing from time to time pause to remind themselves that death is different. An execution is final; it cannot be undone. The law treads warily when it decides to play God. Yet God wouldn’t be as careless as we are when it comes to the criminal courts. We appear far more concerned about money than we are about life and liberty. Why don’t we permit meaningful discovery in criminal cases? One of the great ironies of due process in Connecticut is the fact that a defendant in a car accident case has more discovery rights than a man facing the loss of life or liberty. Tap my fender ever so slightly, and I have a right to sue. As part of discovery, I can take your deposition, send interrogatories, and learn all manner of things before trial. All this so that I can try to obtain money damages. If, on the other hand, my very life hangs in the balance and I face death or prolonged incarceration, my discovery rights are limited. No depositions. The persons who accuse me and, in a sense, hold my destiny in the palms of their hands can refuse even to speak to me. I might have to wait until trial to hear what versions of events they will offer. Something is wrong here. We get more due process to take one another’s money than we do to protect our liberty or our lives. Some states, such as Florida, permit depositions in criminal cases. There is no principled reason why we should not be able to take them here. Indeed, our state constitution has been amended to provide more rights to those who claim to be the victims of crime. Do we not often preach that with rights come responsibilities? Why not require that those who plan to testify in a proceeding that could yield the loss of life or liberty submit to depositions? They are required to do so when mere cash is on the line. Do we value money more than liberty? Why not uniform rules of procedure for both the civil and criminal cases? We’ve seen yet another example of why that should be so in the Timothy McVeigh case. A quick plea to stop the needle made necessary courtesy of the same good people who brought us Waco, Ruby Ridge, and scandal in the forensic labs. This time the government simply couldn’t keep track of all the information it gathered. Reassuring, isn’t it? Permitting prosecutors to play hide the ball can backfire, as it did here. And in Oklahoma City, chaos ensues when a forensic scientist is found to be a fraud. Joyce Gilchrist, the manager of the Oklahoma City forensic lab, was, in the words of a captain of the city’s police force, “an incompetent, poorly trained manager … who lost, destroyed and mishandled key physical evidence.” Gov. Frank Keating has called for an investigation of every felony case in which Gilchrist either conducted tests or testified. Of course, we console ourselves here in Connecticut with the myth of the great Dr. Henry Lee. The darling of Hollywood needs but appear in court and utter a few inscrutable words. Watch a minion of his testify in court and count the number of times they drop his name. An evidentiary talisman. But there was muttering at the end of his era that Dr. Lee was spread far too thin. He was rumored to be working on at least half a dozen books with various ghost writers. We will spare no effort to afford a civil defendant the right to defend his pocketbook. Sanctions for noncompliance with discovery can yield dismissal of an action. Yet when life is on the line, the courts retreat, and permit shenanigans that would never be tolerated in the civil arena. The conclusion is inescapable: The courts simply are not prepared to take seriously the presumption of innocence. If they were, life, liberty and property would be treated on par. Norm Pattis is a name partner at New Haven, Conn.’s Williams and Pattis.

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