Hello Yellow Brick Road:
The Death (and Rebirth?) of Innocence in Small-Town, USA
By Herman Watson
American justice was not styled by statute, sentencing grid, or efficiency metric. It was wrenched from a wager - moral and structural - that liberty was so precious, so fragile, that the system designed to protect it would have to tolerate disorder, dissent, and discomfort. The advocate’s voice - often inconvenient, sometimes abrasive - was not a defect. It was design.
But we are no longer saying goodbye to a former facade of justice that inspired We, the People.
Across the country, and especially in small-town courtrooms where familiarity hardens into orthodoxy, the criminal justice system is drifting toward a brighter, smoother, more narratively satisfying reality, one where ambiguity is suspect, friction is unseemly, and innocence must color in the lines.
The yellow brick road is cordial and paved with good intentions.
From Adversarial Truth to Performative Certainty
The American criminal defense tradition is rooted in distrust of concentrated power. From resistance to the Star Chamber to the Sixth Amendment’s guarantee of counsel, the system was designed around a deeply counterintuitive idea: that truth emerges not from harmony, but from conflict. Hence, the defense lawyer’s job was never to help the system run smoothly; it was to make the State prove its case, out loud, in public, and under pressure.
That design presumes friction. It presumes discomfort. It presumes that sometimes the process will feel inefficient, messy, even rude. These are the promised presumptions of innocence.
And modern criminal justice has less patience for that.
Efficiency is now mistaken for legitimacy. Convictions are conflated with justice. Trials are treated as aberrations in a plea-driven machine rather than the constitutional centerpiece they were meant to be. And when defense lawyers insist on forcing the State to carry its burden - not rhetorically, but actually - they are recast not as constitutional actors, but as impediments.
Nowhere is this shift more visible than in our smaller jurisdictions, where the distance between prosecutor, judge, political authority, and community narrative collapses. In those spaces, adversarial conflict is no longer merely legal; it is social.
State v. Michael Rabb and the Problem of Innocence
State v. Michael Rabb unfolded as a white-collar prosecution long on inference and short on direct proof. After three weeks of testimony, the State ultimately conceded what the defense had said from the beginning: there was no smoking-gun email, no incriminating text message, no recorded phone call establishing criminal intent.
That absence should have mattered. Instead, it marked a pivot.
Mr. Rabb did everything our civic mythology says an innocent person should do. He was consistent, transparent, and cooperative. He did not overpromise. He did not posture. He made promises grounded in his factual innocence. And in a rare and risky move, he opened his own case because he knew the facts better than anyone in the room.
Yet, innocence was not enough. As the trial progressed, the theory of guilt began to shift. The State’s focus moved away from what Mr. Rabb did (or, rather, didn’t do) and toward how he protected himself and his client while doing it. See, Mr. Rabb was an attorney who had counseled a now defunct hemp startup. When he learned that the company lacked a necessary license, he encouraged them to apply for an exemption and filed the application, on their request. When he learned that his client could be running afoul of certain administrative laws, he advised them of their potential liability in a letter that detailed his concerns. And this is where the State pivoted.
Lawful conduct became suspicious. Caution became consciousness of guilt. Sophistication became a stand-in for proof.
In closing argument, the prosecution made the move explicit. Jurors were urged to consider that while they might believe a lawyer who advises a client about potential liabilities is “simply doing his job,” they should instead infer that such advice was designed to evade the consequences of the law. It was a remarkable moment of candor. Because in that moment, the case was no longer about evidence. It was about whether counsel itself could be reframed as criminal, whether a lawyer should be held accountable for the unobserved, unknown wrongdoings of his client.
When Advice of Counsel Becomes Something to Hide
If issuance of legal advice is evidence of guilt, then advice of counsel itself is no longer a shield; it is a trap. In that world, innocence has no safe posture. Silence is suspicious. Speech is suspicious. Consultation is suspicious. Knowledge of the law is suspicious. Counsel itself is suspicious. The only acceptable innocence is posthumously validated and premised on chance. This is a world of chaos and fear, a world it appears our society is rushing into willingly, gladly, and head first.
And this is not an accidental drift. It is a populist reimagining of guilt, one that favors narrative coherence over constitutional rigor. It is a system that prefers a clean story to a contested one, a road that looks bright, orderly, and reassuring, even as it leads away from truth. Importantly, this road leads us away from the promise of hard-charging advocacy within a truly adversarial system of justice. It is a move away from the promise of America and that few (or even one) can stand against many.
The Mistrial Motions as Warning Flares
The four mistrial motions in Rabb were not about gamesmanship. They were clustered alarms. Each challenged event (and there were many), standing alone, could be minimized: an improper inference here, a burden-shifting suggestion there, continuous leading questions from the State to frame their presentation of testimony, even the brazen statement that this case “was about restitution.” Taken together, they revealed something more troubling. The trial was drifting away from evidence and toward a moral suspicion of advocacy itself.
Curative instructions were proposed, narrowed, or deemed sufficient, but the harm was cumulative. Once jurors are invited to treat lawful advocacy as evidence of guilt, that bell cannot be unrung. The prejudice is not technical; it is structural. And the jury, too, questioned whether they should be holding Mr. Rabb criminally liable for some violation of unknown ethical obligations, a suggestion made by the State.
Mistrial doctrine exists precisely for this reason, not to punish error, but to acknowledge when the truth-testing function of trial has been compromised beyond repair.
“What More Can an Innocent Person Do?!”
Decades ago, Barbary Coast legend Tony Serra distilled the asymmetry of prosecution into a single, devastating question:
“What more can an innocent person do?”
In Rabb, that question ceased to be rhetorical.
If, as the Court suggested it may equally be called, “hard-charging advocacy on behalf of his client” equals conspiracy, then advocacy itself is no longer a meaningful provision. It becomes a provocation, a challenge to the system’s preferred narrative. Perhaps, even the Sixth Amendment becomes something to be managed, rather than honored.
Enter, again, our friend Tony, making a fairly decent impression of Batman’s character “The Penguin”:
“There’s an old adage in the prosecutor’s world… it’s eeeeasy to convict the guilty, the real challengggge is to convict the innocent.”
(I don’t think Tony won that case, but the reality of such fear edges ever closer.)
Small-Town Justice and the Comfort of Consensus
Small communities pride themselves on shared values. That cohesion can be a strength, but it also carries risk. Dissent feels personal. Challenge feels disloyal. The defense lawyer becomes not an officer of the court, but an outsider disturbing a settled story. In that environment, pressure rarely announces itself loudly. It arrives through tone policing, through impatience with motions and objections. To wit, our Judge commented thusly,
“I see how this goes: the State asks a question, the Defense objects; the State asks a question, the Defense objects.”
Such pressure arrives through rhetorical appeals to “common sense” and the subtle reclassification of constitutional advocacy as obstruction or clever ploy to “build a record,” weaponized against the Defense in this case.
Within the comfort of consensus, the courtroom still looks adversarial - objections may still be made, instructions read - but it functions administratively. Outcomes matter more than process. Harmony matters more than truth. And innocence, when it insists on being defended, becomes intolerable.
The Jury, the Road, and the Way Back
After Mr. Rabb was acquitted, one of the prosecutors said something undeniably true. She told the public that this case proved the jury system remains a cornerstone of our democracy. She got that right because the jury itself is a last fork off that yellow brick road.
Jurors are not institutions. They are not invested in preserving narratives. They are not responsible for conviction rates or political capital. They are asked to do something radical and old-fashioned: listen, weigh, doubt, and decide. When juries are allowed to do that work - without being steered toward suspicion of rights, without being taught to mistrust advocacy - the system still functions.
That is the quiet hope inside cases like Rabb.
Rebirth Requires Friction
We are saying hello to the yellow brick road because it is comforting. It is efficient. It promises arrival, perhaps to somewhere shiny, made of polished green stones. But justice was never meant to be comfortable or shiny. Its beauty comes from judges willing to protect advocacy even when it disrupts decorum, on prosecutors willing to accept that restraint is not weakness, and on defense lawyers willing to be inefficient, unpopular, and uncomfortable.
Organizations like the National Association of Criminal Defense Lawyers exist for precisely this moment, not to smooth the road, but to remind us why it was never meant to be smooth in the first place. If innocence is to mean anything in America, whether in a major city or a one-light town, we must be willing, again, to say goodbye to convenience. Otherwise, we will keep walking, cheerfully, confidently, until we forget where we set out to go and who we set out to be.
