Tuesday, 20 November 2012

Justice and Its Friends

Disgusted at Defence Lawyers

The jury system is an intrinsic component of the English justice system we have inherited.  Not all Western countries use it, employing instead the bench trial system where a judge or judges make all the court's decisions.  It is an important component of the justice system--part of a rich and blessed heritage derived from the first Christendom.

The decline of the jury system is probably inevitable as our society becomes more pagan, less Christian.  Juries are not experts in law.  They are lay people.  From time to time they may make errors of judgment.  Calls for "professionals"--judges and lawers--to supersede juries arise.   One reason is that, for Unbelievers, justice and judgement in this life is the only justice possible. The idea of the guilty going free and unpunished in this life is hard for Unbelief to bear.  People believe that experts should be relied upon to reach safer decisions in a criminal trial.  But a fundamental flaw in the bench trial system is that the State ultimately controls the judiciary; far too many states are corrupted by power and money and the implication is that this can easily reach into the judiciary.
Unbelieving society finds it hard to accept that evildoers may escape punishment due to insufficient evidence or failure to satisfy an adequate burden of proof.  The bar to convict is at risk of being gradually lowered.  Christian societies, whilst being likely more extensive when it comes to listing human evils as crimes, is far more willing to let the (probably) guilty go free, knowing that our justice is not final justice--that is yet to come and it will be full, perfect, and irrevocably certain.

On the other hand, juries are not some abstract verity that provides certainty  of high-quality decisions.  Juries are only as good as the people that make them up.  If the population at large is not aware of the high standard of proof required in "beyond reasonable doubt", juries can convict on lesser proof.

If the jurors struggle to reason clearly, jurors are more and more likely to decide by "gut feeling", "intuition", "impression", or "how the accused looks in the dock".  Lurking behind these subjective fripperies is the desire to punish, not to let the accused off the hook.  Utilitarian theories of justice creep into the mindset: it's better to convict than to let the accused off because it sends a message to society as a whole which is ultimately a good thing--or so the utilitarians would argue.

When the jury of a notorious public trial lets a dubious character go free on the grounds of insufficient evidence or failure to prove beyond reasonable doubt, Unbelief begins to murmur and grumble.  Something is wrong.  The system has to change.  It's too cumbersome and expensive.  The populace grows uneasy with jury trials and with proving the matter beyond reasonable doubt.   Fortunately, many juries continue to get it right.  Consider this statement from a juror in the David Bain retrial:
"I think there's been a lot of confusion about what David Bain's not guilty verdict in the second trial means," she told TVNZ Sunday reporter Janet McIntyre.  "There's been a lot of speculation that it means that he was found innocent. And I was a juror and I never found David Bain innocent," she said.  She pointed out that the jury was never asked to find Bain innocent, but whether or not the prosecution proved the case beyond reasonable doubt. "And that they did not do," she said.
We suspect there is another dynamic also at work.  Our popular culture is increasingly statist in world-view.  The state is seen as the omnicompetent institution that feeds us, clothes us, takes care of us, and fixes all wrongs.  Such people tend not to think long and hard about the potential of state tyranny and abuse of power.  Such people tend not to consider "beyond reasonable doubt" as a necessary standard of guilt to protect against the abuse and misuse of state power. Statists don't tend to think of the abuse of state power as a possibility.  After all, how can you bite the hand that feeds? 

A related measure of how justice is assuming less consideration in the popular mind is the opprobrium heaped upon defence lawyers.  A NZ Herald  article on the fallout from the death of defence lawyer, Greg King is illustrative.
But some of those who only saw him [Greg King] on the television or in the newspaper, sticking up for the worst criminals, may have wondered why he was held in such high esteem.  He was a criminal defence lawyer, a profession that normally languishes near the bottom of "most trusted" polls. Even lower than journalists.

"I'm sorry but if he was such a gifted lawyer why didn't he work for the prosecution?" was one on-line comment to a Herald editorial on King's death.   "How can I admire someone who works to allow criminals go free?"
Note the perspective reflected here.  Defence lawyers "allow criminals" to go free.  Not "defence lawyers help to force the Crown to prove beyond reasonable doubt".  Between these two views lies a world of difference. 

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