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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