Tuesday, July 16, 2013
Loop holes in the American Justice System
By Saeed Qureshi
The constitution of the United States of America deserves the highest tribute as a beacon of light for all the democracies in the world. It would continue to serve as an invaluable embodiment of all such hallmarks that constitute civil societies. However, the American justice system is yet to reach a stage of being immaculate.
An observation that I read in the New York Times so succinctly illustrates the way the American Justice is aborted. It says, “The judge’s whim is all that mattered in that courtroom. The law was basically irrelevant." (MARSHA LEVICK, the legal director of the Juvenile Law Center, on two Pennsylvania judges who sent thousands of juveniles to detention centers for $2.6 million in kickbacks).
If any branch of the civil society is enormously independent and truly powerful, it is the judiciary in America. Now I would not endorse the kickbacks blemish but certainly there are dark shades here and there that come in the way of the dispensation of an absolutely unalloyed and sparkling justice.
There is a laudable culture and tradition of strict accountability running into the body politic of the United States. But it is seldom and once in a blue moon that a member of judiciary is held accountable. Judges in the courts are like sovereigns whose every movement of hands and eyebrows, wrinkle of the face, every word uttered and rebukes hurled have to be swallowed by those attending the courts.
Up to this threshold, all the judges and dispensers of justice enjoy massive and rather arbitrary powers all over the world. But in the American courts, it is a different story. If judges’ powers are inhibited by someone it is the jury that has to come up with a unanimous YES or NO verdict. Based upon jury’s yes or no consensus vote, the judge awards the sentence. But if it is exclusively up to the judge to give a verdict, he is prone to be swayed by many considerations.
Now the DNA, a unique and amazing invention of the modern age has proven that many convicts of heinous crime such as rape and murder, who were put to death, were actually innocents. Some were acquitted due to the timely results of the DNA that showed no link of the convicts with the crimes or the victims. As such, this goes to establish that there have been some very serious flaws in the U. S. justice system.
In courts, what matters is how the lawyers can manipulate the case. The fact is that the prosecution is always overbearing and maintains an upper edge over the defense. Those who were electrocuted or given lethal injection got their sentence because the prosecution was dominant in the court as ever. However in the case of Zimmerman vs Trayvon, it is the defense that prevailed.
As a casual visitor to the courts for interpretation on behalf of the prosecution or the defense, I have seen kind of bitter verbal clashes between the prosecuting and defending lawyers. In one of the cases at the end of the day a verdict came out that stunned the dumbfounded seekers of justice.
The judge swept aside the tons of evidence produced by the defense and issued an order that defied all the logic and rationale of the discussion. No questions asked. Now there are many considerations that weigh heavily in certain cases irrespective of the merits of the cases or the guts of the defense to browbeat the argument of the prosecution.
As I have observed, invariably, it is the prosecution that mostly triumphs. In predominant number of cases a plea bargain is the ultimate outcome. It means, “don’t care or press for the merit of the case. Accept the lesser punishment in order to get rid of the agony, more excruciating hassle and waste of time and money”. There is an element of fear lurking behind the verdicts that may not be in complete fulfillment of the due norms of justice.
Now race or ethnic background might be a very potent factor influencing the verdict of a case. The alien minority communities involved in violation of immigration rules, overstaying, in small felonies as a brawl between the wife and husband or a theft that can be summarily disposed off, remain trapped in an adjudication system between a prosecution and the defense attorneys for years together.
Ironically such cases usually culminate in a plea bargain or a mild conviction for the accused. In case of choosing the option of fine to avoid the sentence, another torturous process of rehabilitation starts, leaving a person in a mentally or physically mauled state.
Several years ago, I witnessed a case adjudicated between a white drunken driver and a turbaned Sikh from India. The case dragged on for almost three years. It offers a classic example of how the judges can impose their fiat ultimately. The defense attorney took the whole day to produce eye witnesses to prove that the Indian family was beaten by the violent driver.
In the evening, to the utter bewilderment, the verdict was given in favor of the driver who simply walked out of the court. The judge in one single utterance said that he did not believe the evidence or the arguments of the defense attorney.
Now the jury system is a legacy of the past when community involvement was deemed necessary to arrive at a decision. The jury consists of the people invited from various walks of life who would not be sufficiently knowledgeable about the legal intricacies or even the merit of the case. They are students, businessmen, employees or people from other walks of life. They are briefed for a limited time both by the prosecution and defense lawyers to formulate a verdict upon which depends the future of the accused person.
Besides it should also fulfill the imperatives of justice. Prior to the jury verdict that comes out in matter of hours; the case remains before the court sometimes for many years. The arguments of the attorneys, the evidence, the time spent, and the merits of the cases evaporate like a mist before the jury’s unanimous Yes or No vote; deemed as the ultimate and irrevocable verdict.
The jury system is indeed like a spanner in the smooth sailing of the justice system because it is superimposed and nullifies all the work done by the attorneys on both sides of the legal contest. Even if the jury is divided a consensus is necessary to declare someone guilty or not guilty. This is all a matter of persuasion, good or bad luck of the accused as to what kind of opinion he gets from the jury.
If it is predominately black or white jury they might be swayed by the racial or ethnic considerations thus tainting the legal process supposed to be absolutely fair and upon which depends the life and honor of a human being or a member of the society.
The Sixth Amendment stipulates that, “ In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law and to be informed of the nature and cause of the accusation to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of the counsel for his defense.”
Now so many individuals accused of fighting against NATO troops in Afghanistan have been languishing in Guantanamo concentration camp. If the incumbent administration tries to initiate their trial after decade of incarceration, the respective states don’t allow that legal process to take place on their soil. Interestingly those captured at the time of defeat of Taliban were not all the members of despicable al-Qaida. They were basically Taliban or their civilian cohorts.
But the legal process stands so much subverted and tainted that these hapless guys are not being given the chance as per American constitution to be proven guilty or innocent. The justice has fallen prey to an exuberant emotionalism that defies fair play and hampers due course of justice. Right or wrong, these people deserve benefit of doubt, and some of them might be friends of America.
But one exceptionally distinctive feature of this system is the right to appeal to the upper courts that give an option and a way-out for the aggrieved persons to keep exploring and seeking the justice till the final appeal is rejected or accepted. But on the whole, it is very arduous, time consuming and costly course that the economic immigrants can seldom afford.
The overriding spirit and general attitude of the adjudicating authorities is punitive and not forgiving even in minor cases where a simple warning would be enough.After 9/11 the justice system was given a new meaning and interpretation.
The Patriot Act empowered the administration to bend the law in case of the persons who were labeled as enemy combatants. It is primarily for this reason that the Guantanamo inmates some of whom might have been caught by default or were even friends of America could not be prosecuted all these years.
Their trial could not be carried out in New York and in other states because of the deep hatred for these individuals whose crime is yet to be determined. Such are the pressures from the society that can even set aside the law to take its legitimate course for determining the culpability of an accused.
The professional ethics among the attorneys, lawyers and interpreters of law, occasionally, seems to fall short of the required norms. As one may look from a distance, there would be an effort by the defense lawyers to prolong the cases as long as they can because thus they keep the inflow of the fees and other charges intact.
If the private doctors are some time accused of charging high fees and keeping the patients on the tenterhooks, the lawyers too try to keep the cauldron of the cases boiling which normally ends at the threshold of plea bargain. These are the aberrations of the justice system that do not reflect any dereliction on the part of the law makers but are at play during its practical follow-up.
Now as a lay man let me offer my opinion how to expunge the lacunas. First of all I would recommend doing away with the jury system. I plead this because with raw knowledge in legal matters, with diverse racial and ethnic proclivities and with very little time to understand the intricacies of the case, the jury cannot come up with the right and rational decision.
This custom can be replaced with a panel of judges who as legal experts would be in a strong position to hand out a wholesome decision. If there is more than one judge, the whims and changing moods of one single judge can be effectively checked.
It should also be worthwhile if in serious criminal case particularly murder, theft and rape, the DNA evidence should be made obligatory. The DNA finding can lay out the incontrovertible way to determine one’s involvement or otherwise in the crime. Somehow the attitude of soft corner for some ethnic groups and hard stances against the others must be addressed and a viable way-out should be evolved to keep the judges on the right side of law, regardless of their personal impulses.
The judges come to the bar through elections and by votes of the community. This system speaks for the grassroots democratic culture and is praiseworthy. But the qualifications of the judges and legal arbiters some time are not up to the mark to entitle them to hold these immensely crucial public offices and to perform in a highly professional manner.
In my view, the appointment of the judges through elections should be replaced by a committee of experts who should thoroughly scrutinize the professional and ethical credentials of the candidates and recommend the most qualified or eligible for the post.
This is how a fully competent person can be chosen who would not lack in judicial know-how and legal knowledge. This would enormously helpful in the adoption of neutral stance and hand out a decision that would be just and in conformity with imperative of the unalloyed justice system. The elected judges occasionally could tilt in favor of certain community members who were instrumental in his or her election victory.