Frank Maguire
Can religious and political dogma conflict with truth and justice? Part Three
Stare Decisis--Justice by Similarity
By Frank Maguire
June 30, 2011

"You shall know the Truth, and the Truth shall set you free." John 8:32

"Lawless behavior by prosecutors takes many forms, and they all undermine the substance and appearance of justice." Hans Sherrer,

"Last week we saw a Florida Pastor — with 30 members in his church — threaten to burn Korans which lead to riots and killings in Afghanistan. We also saw Democrats and Republicans alike assume that Pastor Jones had a Constitutional right to burn those Korans. But Supreme Court Justice Stephen Breyer told me on 'GMA' that he's not prepared to conclude that — in the internet age — the First Amendment condones Koran burning. "'Holmes said it doesn't mean you can shout 'fire' in a crowded theater," Breyer told me. 'Well, what is it? Why? Because people will be trampled to death. And what is the crowded theater today? What is the being trampled to death?'" I suggest that the reader access the excellent series of articles by Sam Weaver: The Big Lie (Große Lüge).

In Part One of this trilogia I used an episode of "Law and Order" that dealt with a clash of oaths — the oath of a Catholic priest to honor the sacrament of Penance and the oath of a District Attorney made to seek civil justice — the conscientious pursuit of the truth — in the courts of law.

My essential purpose in this series is to show the nexus between moral/religious law (the Law of God) and the secular/civil law (Ordinances established by oath-taking legislators and enforced by oath-taking police agencies and officers of the court). When there comes a separation of the "religious" system (by this I mean by the Spirit informed conscience) from the civil system then each system will fail to perform its ideal unifying function.

The writers of America's founding documents told us that America would only be as good as are the morals of those persons who are persistent in their felt responsibility to altruistically transcend envious and greedy self-seeking.

In Part Two, relating back to the individual in the "Law and Order" episode who was charged with murder, was wrongly convicted, and was sentenced to life-imprisonment. I wrote that "Justice has been done, it would seem. Here, though, we must be careful for there is an irony. Based on the best the judicial system has to offerres ipsa loquitur, prima facie, circumstantial evidence, stare decisis, attorneys of disparate skill and ethical integrity, experience, and political alliances, etc — one man had already been falsely accused, wrongly convicted, and unjustly imprisoned.

To the above I add what is perhaps the most treacherous, in my estimation, device made use of today by prosecutors. The plea bargain! The seekers of truth and justice playing "let's make a deal" with accusers who are offered protection from prosecution or greatly reduced sentences if they aid the prosecution in convicting an accused whom the prima facie, circumstantial evidence makes the most likely suspect. No concrete evidence! Well played circumstantial evidence that is piled up in order to make quantity of the irrelevant and immaterial appear to be quality of evidence. And the use of the plea bargain as quid pro quo merchandising.

Combined with Stare DecisisJustice by Similarity — which creates an economical short-cut by applying the findings in one case that has some similarity to another thus allowing courts to find as if the two cases were sufficiently comparable. (Stare decisis is the legal principle by which judges are obliged to respect the precedents established by prior decisions. The words originate from the Latin phrase Stare decisis et non quieta movere: stand by decisions and do not disturb the undisturbed. In a legal context, this is understood to mean that courts should generally abide by precedents and not disturb settled matters.)

The district attorney and the prosecutors in the "Law and Order" case cited were conscientious members of the system of justice. They had taken an oath to uphold it. They could zealously perform their duties with assurance that although the system is not perfect, it is perfect enough — as perfect as humans are able to produce.

In the case of the priest who held intransigently to his oath in respect to the sacrament of Penance when he was ordered by the court to reveal that which had been "confessed" to him by the actual murderer, I wrote in Part Two, "I propose that the priest's conscience regarding his oath...was more a product of dogma than of doctrinal orthodoxy. Though he was entirely sincere and faithful to the interpretation of his denomination, he was confused in his understanding of God's unique and specific meaning of Justice."

As coincidence would have it — I'm neither mystic nor fatalist; I don't have faith in "coincidence" — about one week after Part Two had been published, I was reading my recently-received Bonhoeffer: Pastor; Martyr; Prophet; Spy, by Ric Metaxas, Thomas Nelson Publishers.

The youthful Bonhoeffer had made his first visit to Rome. It was quite a revelation and much of that which he observed of the Roman Catholic worship and ritual — he was particularly impressed with "confession" — raised myriad questions in his mind in matters theological and ecclesiological.

It even prompted a most remarkable journal entry, typical of the young seeker of Christian unity who later became involved in ecumenism. Metaxas paraphrases, "During Holy Week, he wondered about the Reformation and whether it went wrong when it officially became a church rather a 'sect."

The germane entry in Bonhoeffer's journal in re the priest's recalcitrance is contained in the following. Metaxas writes, "An acquaintance he met in Rome tried to convince him to convert to Catholicism but Bonhoeffer was unmoved. 'He really would like to convert me and is quite convinced of his method....Following these discussions, I find that I am much less sympathetic to Catholicism. Catholic dogma veils every ideal thing in Catholicism without knowing that this is what they are doing. There is a huge difference between confession and dogmatic teaching about confession — unfortunately also between "church" and the "church" in dogmatics.'"

Bonhoeffer, always the truth-seeker, was forced to learn quickly and to grasp the realities between Scylla and Charybdis of State and Church in Germany's moral and political whirlpool. "In a few years...." writes Metaxas "When the Nazis were taking over the German Lutheran Church, he would lead the charge to break away and start the Confessing Church. That, too, was considered a movement — the Confessional Movement — but then it became an official church." In those few years, Bohoeffer had witnessed the complete devolution of Germany's own religious body that had been built upon "Sola Scriptura" — the Scripture Only.

Bonhoeffer lived during a political/cultural evolution that went on in post-WW I Germany that produced a perfect paradigm as to what occurs when the political/judicial system is separated from the spiritual/religious system. How God's Law is negated by the laws of those who gain political power and when those in power are secular-atheist and/or pragmatically religious. An evolution where the "church" displaced scriptural doctrine with religious dogma designed to reconcile the Faith with the political correctness of the age.

In the era leading up to Hitler and the NAZI system of law and order there was the "it's the economy, stupid" emphasis. And in order to divert the economic concerns of the populace there was the reliance upon panem et circenses — bread and circuses. Amusements of the licentious Weimar government that segued into The Pink Swastika!

Along came The Great Haruspex Adolf Hitler who was diabolically gifted in reading the cultural/political entrails. He was inspired with all the necessary rhetoric that produced strange alliances. The haters of religion, who reveled in Weimar sybarite-libertinism were granted a wide tolerance, and the religionized "church" — the "moral" majority of the times — was embalmed, by hypnotic induction, with a rhetoric of moral assurances.

Many Germans, and particularly Austrians, were convinced that Hitler had always been a Christian, when in fact he was worshiper of the Aryan gods of Ultima Thule — of Nordic religion...of racial superiority and racial purity. Der Führer (Führer is a "Guide" who points out the "Way") was an arch-enemy of Christianity while being an admirer of and copier of the systematic management of organized religion. Hitler's favorite "hymn" was Richard Wagner's Ride Of The Valkyries.

What is my point in this preamble which some might be thinking is more like a ramble? My point is that America is lost in a forest of confusion that has become so dark and dense that the light is shut out. The loss of Germany's moral compass left them no way to reckon direction. And it appears to me that America has entered that same forest.

But, there was (is) a voice beckoning in the forest and it sounds like this: "The adjective 'naturalistic' shows that Humanism, in its most accurate philosophical sense, implies a world-view in which Nature is everything, in that there is no supernatural, and in which man is an integral part of Nature and not separated by any sharp cleavage or discontinuity. The philosophy, of course, recognizes that vast stretches of reality yet remain beyond the range of human knowledge, but it takes for granted that all future discoveries of truth will reveal an extension of the Natural and not an altogether different realm of being commonly referred to as the supernatural." Corliss Lamont, "The Philosophy of Humanism" (taken from Understanding the Times: The Story of the Biblical Christian, Marxist/Leninist, and Secular Humanist World Views," by David A. Noebel, Summit Press, Manitou, CO copyright 1991).

For the past three years I have been fully involved in the study of a capital murder case where the murderer was used in a plea bargain to testify against his "friend" who was, I concluded — after studying 3800 pages of pre-trial and trial transcript, all of the press material written about the murders, and hundreds of personal communiqués (including a number of visits to the prison) with the man who has sat on death row for 19 years — an accessory after the fact. At this point in time, this man's habeas attorneys are awaiting their recent appeal to the 9th Circuit Court. Time is running out for this fellow. The Appeals System has confirmed the System's procedures while refusing to reexamine that which I found most important in my studies.

What I discovered is that I knew the entire case from beginning to end, and then some. The jury did not. Because of technicalities having to do with the "juvenile" status of the plea-bargaining executioner of two fine young persons, the jury was not allowed to know of his prior 'bad acts." The jury was not allowed to hear the pre-trial testimony of the court-appointed psychiatrist and psychologist who both found the young killer to be a pathological liar and a sociopath who had no remorse for taking human life. The jury was not aware that the only alleged concrete piece of evidence — a walky-talky — did not exist. It was, I allege, contrived in order to tie the shooter to the alleged accomplice, and to give the prosecution grounds for demanding the death sentence for the defendant.

It was not until the third appeal of the defendant, to the State Superior Court, that the System decided that there was no walky-talky. In other words, that which the jury heard that tied the accomplice to the killer was a lie. Why should the plea-bargainer lie? Why should the prosecution benefit from the jury's having not heard the psych testimony and that the only alleged piece of concrete evidence was a lie? And why, now, is it seemingly impossible to remedy this farce that some would call "justice?"

The answer is that both our Judicial System and our Moral System have been polluted by utilitarian and pragmatic amorality. The answer, in what I call The Age of Barabbas, is that Truth is denied, and it has become absurd to believe that anyone will, when it comes to their own self-defense, tell the truth, the whole truth, and nothing but the truth. We've come to a time when given nothing more to go on than circumstantial evidence that the juries take it for granted that everyone lies, so their job is to side with, by emotion and personal prejudice, the most charismatic liar.

Let me close with this. It has to do with the recent Snyder v. Phelps Supreme Court decision. The "Reasonable Person" decision!

I insert, here, the links to articles by Dr. Mark W. Henderson: and by Robert Knight, columnist for the Washington Times and senior fellow for the American Civil Rights Union.

I focus upon the opinion of Justice Breyer who concurred with the majority in Snyder v. Phelps. Breyer wrote "that in Harris v. Jones (1977) the Court of Appeals of Maryland found that 'The state tort of "intentional infliction of emotional distress" forbids only conduct that produces distress "so severe that no reasonable man could be expected to endure it" and which is "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and intolerable in a civilized community."

Breyer uses stare decisis — justice by similarity — to declare that the Snyders are not reasonable persons; that the dissenting Justice Alito is not a reasonable person; and that I, in my agreement with Alito, et al, am not a reasonable person.

We know the why of the symbolism of Blind Justice. It doesn't signify that Lady Justice cannot "see" the Truth's actuality. It promises us that she knows the Truth implicitly and will not allow any human prejudice, any parti pris, discount the Truth. ( parti pris is an opinion formed beforehand without adequate evidence; E.g., "he did not even try to confirm his preconceptions")

In my estimation, Justice Breyer's "reasonable man" pontification is dangerously flawed. And that which Breyer sermonizes, ex cathedra, as insufficiently "outrageous, extreme, atrocious and intolerable" is, in its self, de-civilizing. It is, in fact, a broken compass.

© Frank Maguire


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Frank Maguire

(Frank Maguire passed away on May 19, 2021. His obituary can be read here.

Frank Maguire was born in Dorchester, MA, 1938, attended schools in Massachusetts, California, and Arizona, where he completed degrees in music and English writing/Journalism. Frank has been married to Helen Isabel Maguire Estevez of Culver City, California, since 1957. They have six children, 14 grandchildren, and 17 great-grandchildren.


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