Trials and Tribulations: Dismal Thoughts On A Sorry Legal System

For years now I’ve been watching the legal system. It has been interesting if nothing else. The streets are a zoo, an asylum, a circus, a coral reef at midnight. I can’t think of better entertainment. But it has seemed to me that the legal system isn’t much of a legal system. In fact, it’s scary. I’ll tell you why.

First, juries. Many, many trials are decided not by reasoning applied to facts, but by race. Cops will tell you that black juries often won’t convict black defendants because they’re tired of seeing blacks go to jail. So am I, but guilt and innocence are supposed to determine conviction. Something akin to hysteria decides other trials. The trials of men accused without evidence of having molested their daughters twenty-five years before, and of groups of people accused of satanic ritual abuse of children, are cases in point.

Jurors often are the dregs of society, people who didn’t have the smarts to dodge it. This certainly isn’t always true. Lots of jurors are good folk who take their job seriously. But lots aren’t. Time and again I’ve talked to friends who have served on juries in Washington. They tell of stipulations being ignored, law being ignored, verdicts being emotionally decided. In once instance, both sides in a civil case agreed that sexual harassment wasn’t involved. The jury, according to a friend on the jury, decided on grounds of sexual harassment.

The answer? I don’t know. I think a defendant should be able to demand a literacy-tested jury. Not a solution, but a start.

Second, cops and prosecutors. Cops will sometimes lie on the stand. I know: I’ve been on this beat a while and I’ve got friends who have done it. Low-grade, poorly trained departments are more susceptible than others. It’s usually some drug dealer who they’ve watched for years and know he’s guilty, but never quite catch, so they help the evidence a little. Thing is, you may eventually get someone who isn’t guilty.

Prosecutors get zealous. The reasons I think are, at least sometimes, psychological. They’re trying to put a guy away for life and, unless they’re completely conscienceless, they have to think he’s guilty, not just probably guilty. So they persuade themselves. Then they get caught up in the competition-if they weren’t competitive they would be in another racket-and don’t want to lose.

Third, defense attorneys. They figure their job is to get the client off. Guilt and innocence have little to do with it. Again, lawyers I know tell me of springing guys they know to be guilty-serious drunk drivers, for example-on technicalities. Suppose a guy with a history of DWIs blows a red light at seventy-five and kills a pedestrian. The driver is unconscious. The med people run a blood-alcohol at the hospital and it’s high enough to pickle a boot. The lawyer tries to get it thrown out on grounds that the guy didn’t consent or some such.

“It’s the job,” the attorneys say. And it is. Which doesn’t help the next pedestrian.

Fourth, the appeal to emotions that characterizes both prosecution and defense. Read any book by a trial attorney. Despite the ritual hoopla about evidence and reason, you’ll notice that the attorney spends a lot of effort calculating the emotional manipulability (if that’s a word) of the jurors. In high-dollar trials they’ll hire “jury consultants,” whose job is to determine what kinds of people will be most favorable to the side hiring the consultant. It’s sheer psychological angle-shooting.

The question is, “What is the attitude of middle-aged Presbyterian women toward rape victims?’ not, “Is this particular juror intelligent and level-headed?”

Fifth, the expense: Defending yourself, either civilly or criminally, costs so much that it sometimes makes more sense to plead guilty even if you aren’t than to fight the conviction, perhaps lose anyway, and still be out a fortune in legal fees. This is particularly true if the federal government charges you with something that doesn’t involve jail time. The feds can simply spend you into submission. It shouldn’t be this way.

Ages ago, a lawyer told me, “Don’t ever get caught in the criminal-justice system.” He meant that the results are unpredictable. They shouldn’t be: If you are innocent, the outcome ought to be predictable.

I don’t know what to do about all of this. Most solutions would generate their own problems. Anyway, nobody cares enough even to try to improve things. But it sure isn’t heartening to watch.

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