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.
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