Imagine for a moment that you've been accused of a heinous crime. No, not murder; worse than that, at least in the public eye. Much worse. It's nothing so sterile as treason. It has a haunting, clinging quality about it, like cobwebs coated in rancid grease. There's no death penalty for it, not even life in prison, but an awful lot of people think there should be. You've lost your spouse, you've lost your children, and your mother can only look at you through the little plexiglass window and say, "I love you, honey; I'll always love you, no matter what," with tears in her eyes and a quaver in her voice.
Are you innocent? Are you guilty? No jury's yet decided, but as the media lingers over every sordid detail of the allegations, its audience, the public, thinks it knows. The judge has expressed concern that the coverage may prejudice the jury. Politicians are making speeches. There's a bill on its way through the legislature with the victim's name on it, to make sure the law comes down harder, in the future, on horrible people like you who do these horrible things, because, clearly, the law is being much too soft.
The public perception is clear: you don't deserve the benefit of the doubt; what you've done is just too heinous. You don't deserve protection. You don't deserve rights. Your guilt is obvious.
For the guilty, we call this justice, and grin snidely as we anticipate the malefactors' treatment at the hands of fellow inmates, who likely view the offense little more kindly than does the public at large-- and are in a position to do something about it.
For the innocent? Well, um, that's....
That's kind of awkward.
We have a handful of crimes like this in our culture, crimes so utterly toxic that to even be accused of one constitutes a kind of exile from the human race, crimes so poisonous that the mere allegation twists the accused into a kind of perverted imp in the public imagination.
And just how vile do you have to be to defend a creature like that? To defend a demon?
Even as the general run of lawyers goes, criminal defense attorneys do not suffer from an over-abundance of public support. Public defenders are maybe an exception, and there are others, but all too often the popular image of a defense attorney is a snot-slick scumball who wields base cunning and legal knowledge in combination with a contemptible lack of morals in order to shield the guilty from the righteous light of justice.
I get asked from time to time why I would want to make my living taking the sides of monstrous people. Would I have defended Gary Ridgway? How about Osama bin Laden? Mussolini? Do I not think that heinous crimes should be punished?
In fact I do, yes, but I do not consider it my place to judge innocence and guilt. This system of ours, this legal system, in which I play a part, is a machine designed for that purpose. It is not perfect, but it's a damn sight better than my own judgment-- or that of any media-fed mob. Therefore I choose to play my part, and to trust it to produce the appropriate outcome.
"But the system's so broken!"
I dare you to come up with a better one.
That may sound like a cop-out, but I'm quite serious. When it works, the American adversarial system guarantees a two-sided argument before an impartial observer. Does it always work as it should? No. But for my money, the defense attorney is the absolute last part of the system you want to fail.
Consider the nightmare scenario above: again, you are accused of a heinous crime, community rallying against you, etc. Now imagine one more person in the mix, one person charged with speaking for you to a court charged with trying your guilt; to a prosecutor fired up with righteous anger, eager to bring swift justice down upon your villainous head; and to a world roaring its approval of the prosecutor's crusade.
This person, this one person, out of everyone in all the world, is charged to be your voice, speaking with an eloquence you do not possess; to be your guide, explaining your situation and options in a system of laws you do not understand; to be your advocate, bound to introduce no lies but to make your case before the court, as you would, yourself, if you could.
And this, your only champion in all the world, turns away in disgust, just like everyone else.
For whatever reason, this fault, this absence, in your trial is never noticed, or is declared insignificant. They say you are guilty. If you are, your guilt remains untested, and you will be punished on the basis of this untested guilt. Perhaps this is only a small difference.
But oh, if you are innocent....
Perfect thinking for our adversarial system, Max. How do you think it compares with non-adversarial approaches that assume the best way to get at the truth is a kind of collective endeavor to sift through it all? In our system, if you're poor and in trouble you have to be really lucky and pull a skillful idealist from the lawyer pool, and I'm not sure the odds are that good. The adversarial system seems based on an old notion that there is some kind of level playing ground upon which the best ideas or the truth will win--at least usually win. But since there is no such level field, and since money has a lot to do with marshaling brute legal power, is this really the best system imaginable? Maybe, but it would be interesting to hear your thoughts on the cooperative search alternative.
ReplyDeleteThe relative merits of the cooperative search (practiced in, for example, Germany) and the adversarial jury trial are a subject of a multi-generational, ongoing debate. Nations relying on jury trials are in the minority, and the legal systems are different enough that I'd need to do a lot of study to be able to speak with much certainty.
ReplyDeleteAt first glance, the reliability of the fact-finders concerns me. In our own system, judges tend to become jaded over time, skeptical of defense claims that seem plausible on their face. Juries' judgment is not universally held in high regard, and they are more vulnerable to emotionally-charged decision-making (hence in the nightmare scenario above, you'd probably want a judge doing the fact-finding), but they also bring a great deal of collective life experience to the table. A single judge is apt to both think very highly of his/her own judgment and to have a narrower scope of possibly relevant experience to draw from than he/she thinks. A panel is apt to be similarly narrow-- whatever the life paths of judges staffing it, they all are likely to have led lives steeped in law and are all likely to be suspicious of defendants.
Perhaps our system is, itself, responsible for that jaded judiciary, but there have been criticisms of the cooperative search as remote and even hostile. Kafka's "The Trial" is apparently based in part on a trial Kafka was involved with under the cooperative search system.