I recently survived a long bout of crime/courtroom real-life Netflix drama. Oh boy. What a grueling bout of prosecutor and cop corruption and flagrant miscarriage. And this is with my BS filter on high alert with a close eye on the method, apparent intent and biases of the filmmakers.
What is soon apparent is the horrible realization that not only is justice a deeply slippery intangible ambition but the formula we've concocted to find it is like a four-lane bridge with a three-and-a-half lane gaping hole in it.
There is an assumption that the court system is designed to discover the truth, but if such a blueprint was ever devised we can't possibly be following it.
Cops are definitely not responsible for truth, and no offence intended. That is not at all their job. They perform their job tactically in accordance to situations. Cops reasonably assume that the truth is the objective of prosecutors and court rooms, after they've jailed a suspect.
Prosecutors have very little incentive toward truth. They are judged, rewarded or reprimanded by their ability to settle cases by one means or another. And for those cases which make it to court it is not their job to find the truth but to win. One way or another. And by the way the temptation to cheat and the opportunity to cheat, are both immense. And to sweep those realities under the rug we sanctify their positions and pretend that they are above reproach, for no precise reason at all.
And where they might be inclined to turn on their too-cozy relationship with law officers in any pursuit of truth they face the frightening monster that is cop solidarity. Find me a cop anywhere - anywhere! ...who is more loyal to the people they purport to serve or to truth or to justice than they are to each other.
And this phenomenon is too universal to blame on individual cops. It's there because of the paradigms they are bred in. Their jobs are dangerous and bloody difficult in ways that don't resemble other jobs. They will naturally lean hard on one another for support and survival.
Witnesses are examined without proper regard for the realities and flaws of human memory and they are put under such scrutiny and threat that they are almost certainly scared into regarding their own safety above the pursuit of truth, not to mention the biases they come pre-equipped with.
When we're talking about the most perilous cases, they are jury-decided and there things really pour down the rabbit hole. Judges have very limited opportunity to guide juries or to guide lawyers. They are auditors of process. The one player who might actually be equipped to finding truth as well as devoted to it, at least at a conscious level, the judge, is removed from the ultimate decision.
As with every (or nearly every) institution or organization, the fatal flaw in the courtroom design is that their rules, process and philosophies rely on illusion, They fail to recognize basic human nature. Human beings will behave in ways that best appear loyal to law, rule, and loyalty to the organization but secretly bent toward the selfish wishes of their egos; secrets often not even privy to the individual's consciousness; the main reason all organizations are to some significant degree corrupted.
Part of the problem with ego in this environment is that egos fool most of the people in a room into thinking that they alone are the smartest person in the room. And everyone involved in a court case; lawyer, witness, judge, jury assumes much too early that they know the truth about unproven elements, and they will espouse those presumptions and resist new evidence to the contrary.
And once juries are left to their own devices, they are almost always immediately split, and not with logic then paving the way to consensus but with subservience to the more persuasive personalities among them.
I never met the lawyer, poet and writer, Ed Wildman. He sadly departed before his friends became my friends. But he was known to say that there was more justice on the streets than in courtrooms: "In the street men generally get what's coming to them. In the courtroom it's a crapshoot."
Of course there are forces in the courtroom that are anything but random. Such as who has the most resources. Whether corporations or individuals, rich defendants have a great track record in courtrooms, and lets face it, in this society there are very few truly lawful ways to get rich.
How to stop the rich from buying legal victory by out-spending the poor? Here's a suggestion:
A court case combatant (plaintiff/prosecutor/defendant) can hire/employ pre-trial counsel and/or investigators as desired but trial lawyers are assigned by the courts. Trial lawyers would be financially incentivized by receiving ratings based on their performance and seniority, paid accordingly, and assigned to cases relative to a simple case-rating system. Cases with the most at stake (dollar amounts/maximum sentences) receive the highest-rated lawyers - on both sides.
Junior lawyers start out serving as assistants to mentoring high-rated lawyers on high-rated cases thus employing defense teams.
Successful claimants and defendants declared innocent pay nothing for their trial lawyer(s) whose performance-based incomes are generated by a tax on the damages and fines paid by the guilty.
With lawyers not being paid directly by their clients it enables this important game-changer:
A lawyer's objective is then not primarily to win, and their score-carding system will reflect it: A lawyer's job is then to seek the truth, each beginning from the perspective of their "client." But their loyalty, as with the judge, is first to justice, truth, and the people.
Another thing: Cop solidarity must be bred out of the system. It is one of the most problematic corruptions in our society. At the least, shouldn't individual police positions be rotated regularly so that familiarization does not take hold? Perhaps a cop's partners should always be newish. I'm sure there are many other ways to support them and fight the problem if we think about it.
With juries I am deeply suspicious of this consensus rule. Where juries are split for a long long time can we not drag some common sense into the equation? Can we not infer that no obvious truth has been made apparent? Can we not then look at liability and guard against the worst possible scenario perhaps?
Look at the case where the defendant spent more than a decade in jail for murder before being discovered innocent thanks to the maturation of DNA evidence technology. Almost miraculously, a bitter cop community soon tried to pin another murder on him where court proceedings pointed at a host of holes in their case. Despite this, eleven gullible members of the jury put him behind bars
again following the drawn out bullying of the lone member initially leaning towards the guilty decision.
In that case here was the worst possible scenario consideration. If he was truly guilty but declared innocent, he'd be freed but after spending two decades in prison and detention; thus he already served a 20-year sentence for one murder anyway! Almost zero jeopardy!
Instead they probably re-jailed an innocent man who then spends almost his entire adult life in jail for no reasons. Probably the most tragic jeopardy imaginable. And this is what they took a chance on. To this day people and organizations devote their lives to trying to free this man. What a human catastrophe. They chose to risk the worst possible scenario.
Even when juries are removed from the system I know there are problems. I 've been personally involved in three court cases without juries and every one was a complete debacle.
1. The defendant presented his case to the duty counsel who walked into court, entirely forgot every promise to the client and basically tied a ribbon around him and made a gift of him to the prosecutor and the judge, who seemed thick as thieves. The latter ridiculed the defendant, forgetting he was a judge and not the world's lamest shock comedian.
2. The court failed to allow a mentally challenged man to get the assistance he required in order to assemble a competent counsel and was easily bullied into complete submission by his opponent.
3. The defendant's documents which proved him innocent or at least 99% so, were of no interest to the busy prosecutor who warned he should accept a deal on a lesser charge and pay $200 instead of risking a $1500 fine plus further tribulations if he risked going before the judge. He could have read the documents and came to the obvious conclusion to drop the case. The defendant, not imagining how he could possibly come up with $1500 complied and went home $200 poorer and his dignity pulverized, this after the deal was finalized by the judge goading the baffled defendant into lying in court in order to justify the details of the artificial arrangement. It all came down to governmental financial management with no regard for truth.
Oh by the way, the great lion's share of USA's two million inmates are poor black men who balked as per above principal and are jailed without trial but through intimidation and the threat of much longer sentences if they don't accept the plea bargain. Logic dictates that the number of incarcerated innocent in the USA is overwhelming.
I'm glad I almost knew you Ed. Crapshoots indeed. Let us all remember that and guide our affairs accordingly.
Lawyers in Love
Oppose the growing entitlement and presumption of corporations for government hand-outs in favour of equality and support for the poor.
