Wednesday, July 10, 2013

Justice, Judge Holmes and Mr. Zimmerman


There is a story that is told about Chief Justice Holmes and Associate Justice Learned Hand having lunch and after lunch, as Holmes departed in his coach (this was at the end of the 19th century and he was in a horse-drawn coach) Justice Hand, caught up in the moment, ran after the coach and yelled 'Do Justice, Sir, Do Justice.'  Judges Holmes stopped the coach and leaning out said to Judge Hand: 'That is not my job.  My job is to apply the law.'

Judge Holmes point was simply this: the courts work through a clearly identified process, using the laws as written, to as best they can, identify guilt or innocence, and to redress wrongs – civil or criminal.  No court says it is infallible, and in fact in the US there is a quite complex hierarchy of courts that allows for challenges – appeals – to the results produced in any one court.

At the center of this whole process is this one simple precept, one that comes to us from the English courts: in criminal matters the government - in the shape of the prosecutor - must prove Beyond a Reasonable Doubt - to the jurors - that the defendant committed the crime for which he has been charged.  It is probably worth noting that the court does not seek to establish that someone is evil, just that the accused violated the law.

The defense, on the other hand, seeks to establish 'reasonable Doubt,' that is, the defense seeks to 'create' doubt in the minds of the jurors - that's the goal. Technically, the defense doesn't need to prove anything, just create doubt about what the prosecutor is saying.  If that means making a witness appear foolish, then that's what he tries to do.

I grant that in this day and age, where, through the internet and various videos found on-line, everyone is substantially smarter and more well read then a couple of light-weights like Holmes and Hand, that there are now people who can indeed 'Do Justice.'  

Which brings us around to the case of Mr. Zimmerman, accused of the murder of Trayvon Martin.  I read one article in which the author informed the world that said Mr. Zimmerman is morally '...by no means without guilt.'  That author has moved beyond mere 'justice' and now has the ability to discern someone's moral guilt or innocence.

There has been a good deal written (and spoken) this week about the testimony of one young woman - Miss Jeantel, a witness for the prosecution - at the Zimmerman trial.  In light of her testimony, which some people seem to believe helped the defense more then it helped the prosecution, there has been a great deal of hand-ringing, accusations, counter-accusations and all the rest.  Much of it has focused on whether people understand her because of her race or upbringing or some such list of explanations.

Well, to all those folks: 'You all need to go back to your high-school civics class.' It is the job of the defense attorney to dissect the testimony of the various witnesses for the prosecution and, if left to his own devices, make their testimony appear either not credible or, failing that, to make the witness appear not credible.  I repeat; that's his JOB.  It doesn't matter whether the witness is white, black, green, or turquoise.  It doesn't matter if the witness is Catholic, Protestant, Jewish, Muslim, Hindu, or a worshipper of Kali.  Short, tall, fat, thin, old, young, rich, poor - none of that really matters to the defense attorney.  What matters is that he make the best possible defense of his client.  If that means finding a means to make the witness appear confused or not as smart as he or she really is, then the attorney has probably done his job.  Doesn't matter who it is - rich man, poor man, beggar man, thief, doctor, lawyer, Indian chief - the defense attorney will try to make him or her look out of sorts, the more out of sorts the better.

It should also be noted that the prosecutor should at a minimum provide some warning to his witnesses so that they aren’t ‘blind-sided’ in court.  If the prosecutor is really on his toes he will ask essentially the same questions as the defense attorney, in such a way as to bring out the same information, but in such a manner as to make that information appear relevant to his side of the argument or to at least ‘defuse it’ when the defense attorney discusses it.  If that sounds like ‘spin,’ well, it is.  Remember, both attorneys are trying to convince the jurors of their respective sides of the argument.

And if the defense attorney does his job well enough, and if the prosecutor fails to do his job, then someone who appears to all the world to be guilty of breaking the law may go free.  And vice versa, if the defense attorney fails to do his job and the prosecutor does his job well enough, then someone who appears to all the world to be innocent of breaking any law may well end up in prison.

Whether Mr. Zimmerman is acquitted or found guilty, the result is what the courts are established to do: apply the law as best they can.  The judge attempts to be impartial and clinical, the two attorneys present or refute evidence, by design using the law and court procedure to spin or tilt the evidence in the particular direction they prefer, the jurors ‘weigh’ the evidence and the testimony and present a finding.

There are those who would submit that this isn't fair, that it doesn't bring us justice.  Well, perhaps not.  But it is better then any other system yet developed by any society over the last 6000 years.  And if you are ever accused of a crime you will probably be glad that it works this way.  Because none of us really knows what justice would really look like.

The system we have isn’t perfect.  But we need to let it work.  If you want to change it, run for office, start a petition.  But, yelling and screaming that it isn’t fair or that this or that witness wasn’t treated well really and truly misses the point of the system.

Unless of course you can see into someone’s soul, as apparently some can, and establish moral culpability.

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