I’m trying to understand the American machinery of justice. It’s hard going. Having been to high school, I think of our courts as being like an infallible bird dog that always gets its duck — a shining light to the world, and a reproof to lesser nations, meaning all of them. But there a few potholes in that road.
In every trial, the prosecutor tells the jury that the defendant is guilty. Equally invariably, the defense attorney insists that he is innocent. It follows that these officers of the court have a combined average rate of error of fifty percent. This implies that (1) one attorney is lying, (2) he is easily misled by criminals and should therefore work in another field, or (3) the prisons contain almost nobody but the innocent.
(The possibility exists of course that one of them is simultaneously lying and wrong. The prosecutor might mistakenly believe the accused to be innocent yet try to convict him so as to win a forthcoming election. The defense attorney might in error believe him to be guilty, on the grounds that almost all are, but seek an acquittal to get money to spend on drink and riotous living.)
There is worse. Both lawyers are paid to lie to the public! Yes. Indeed telling the truth inopportunely is a breach of ethics.
If a defense attorney honestly said, “The rascal is as guilty as a congressman, but I’m defending him because I need a Porsche,” the ABA would disbar him, suggesting that honesty is unbecoming to an attorney. Certainly it is unusual.
Neither will a prosecutor say, “There’s a chance that he’s guilty — anything is possible — and the evidence is good enough that I can get a conviction.”
Conflict of interest always exists, does it not? When an attorney says, “My client is innocent,” a reporter should ask, but never does: “Now, sir, is it or is it not true that your client is paying you to say that he is innocent? A simple yes or no will do. Was this innocence you speak of his idea, or yours? Further, sir, do you not always tell us what you are given money to tell us? Ah. You concede then that you are bought and paid for. In that case, sir, why should we believe you?”
Why are officers of the court not held to standards of veracity expected even of used-car salesmen? If you pay a witness to lie, it is called “suborning perjury.” Pay a juror, and it is called “jury tampering.” Pay a lawyer and it is “fee for service.”
Now consider the jury – “twelve men, good and true,” we are told by the mendacious texts of government used in high schools — honest, upright, foundering under their accumulated virtue. Today we admit women to juries because is seldom practical to find twelve men who fit the description. These improbable jurors are supposed to weigh the facts with clear-eyed exactitude, subject them to the withering torch of reason, and distill the truth as if it were moonshine from the mountain alembics of Tennessee. (It isn’t often that I get a chance to say “alembic.” I get carried away.)
But the truth would make a strong man blanche. Look at those in the prospective jurors’ room in any city (Washington, say). Usually they are people too dull-witted to avoid jury duty, or indigent and therefore with much leisure to spend on matters of policy. Remember that in our cities, functional illiteracy approaches fifty percent. This doesn’t take into account non-functional illiteracy, which pretty much accounts for any who couldn’t achieve the first category. The astute reader will have noticed that, in important cases, jurors are sequestered in a hotel at night. This is from fear that, if let loose, they couldn’t find their way back to the courthouse.
These excellencies decide who shall go to the gallows and who, deserving to, will not. Facts? I wouldn’t allow a fact near a jury without police protection.
Yet any attorney, until he has lost, will testify, with the profound conviction of the financially interested, that toward the jury system he has the unshakeable faith of a recently converted atheist – that he reveres the powers of reason of the average man as he loves his mother’s memory.
The truth isn’t in him. He doesn’t want reasoning citizens. He wants the ignorant and malleable, suggestible possums whose prejudices favor his client’s side of the fabrication. This is obvious as warts. The behavior of attorneys, as distinct from what they say, reveals that they regard jurors as they would naked savages whooping on some heathen isle — half-witted, readily swindled, but dangerous and unpredictable.
Read any account of a trial written by a lawyer and you will see fastidious attention to the hoped-for inclination of each juror – to every useful prejudice, every emotional reflex, every fortuitous bigotry. Every emotion will be calculated, every human weakness. Powers of reason are never mentioned.
Is it a rape case? The prosecutor will strike a Catholic woman of middle age, calculating that she might think the crime the victim’s fault as she was provocatively dressed. A young blue-collar man whose wife looks a bit like the victim? Ah, he will imagine his beloved in the grasp of the malefactor and convict anybody within sight. Just the thing.
What you will never find is a search for jurors of intelligence and probity. The verdict might then depend on the evidence, which is the last thing a lawyer wants. At least it is the last thing that lawyer wants who is in the wrong – the defense attorney who seeks to put a hardened murderer back on the streets to prey upon orphans and young mothers; or the prosecutor charged with imprisoning the guiltless. Necessarily one lawyer or the other fits this description.
And the whole country colludes in preserving this pious fraud. The reader may remember the famous case of Orange Juice Simpson, whose hobbies were golf and assassination. After the trial, the jurors told the press, “I didn’t feel that the DNA evidence?.” These responses were received with utmost solemnity.
The assembled press did not ask, “What was the DNA evidence? Can you name three differences between DNA and a wheelbarrow? For what is DNA an abbreviation?” (Don’t Know Anything.)
We are told that the jury finds the truth. No doubt it does sometimes, as a drunk driver finds a telephone pole. But, should the truth come out, the jury can offer a persuasive defense: It wasn’t on purpose.