Belaboring the Obvious

Saturday, September 22, 2007

Looking from the outside in at the legal system....

Where I am, jury duty's a sonofabitch... It goes on for three months. One is tied to the phone every day for three months--every work day, one has to call in during the evening to see if one has to report as part of a pool for jury duty the next day. It's wearing and tiresome, especially for those with regular jobs.

It used to be worse--the period was six months, and one had no recourse to be excused if one had just served. When I first got down here in 1991, there was a woman in the office I worked that had served six months on call, and was called for another six months four months later.

That made jury duty an onerous thing, rather than something people were eager with which to help. It's still awful, but, not quite so bad as it once was.

What helps make the system worse than it should be is the tendency of prosecutors to press cases that didn't deserve serious adjudication, or could have been resolved prior to trial. I ran into that a few times in this session.

It's quite possible that this tendency is due to several factors. The first is that, in my state, the prisons are run by private corporations, and keeping the prison population high increases their profits. The second may be due to the law `n order crowd run amok. The last might be the tendency of judges to defer to prosecutors in procedural matters.

It's said that one should be advised that the making of law is much like the making of sausage--you really don't want to watch the process--but, I can guarantee that watching the exercise of the law in the courts, as a juror, is worse. First, one has the fate and future of people's lives in one's hands, quite literally, and not a few of one's fellow jurors are not of a mind to take that task seriously.

Second, it's quite disturbing to note how easily one's contemporaries will bend to the desires of a prosecutor. There's lots of research into that, I'm sure, but, it's all the more obvious to me, living in a profoundly conservative locale, how that happens. Conservatives tend to defer to authority, and that's never more apparent than in jury deliberations. One of the best examples, for me, came with a jury I was on recently. The defense depended upon an exception to law, and the question of guilty or not guilty depended upon that exception. The onus, as explained in the jury instructions, was on the state to prove that such exception did not occur.

The crux of the biscuit--and the defendant's freedom and future--depended upon the state offering evidence that the exception was disproved. It did not provide any evidence to that end. And yet, at first, the majority of the jurors took, as fact, a characterization of the defendant's testimony which was merely an assertion by the prosecutor, which was not evidence. It took a couple of hours to explain that difference to them between evidence and an assertion by the prosecutor. In the end, all of the jurors siding with the prosecution's view conceded that no actual evidence refuting the exception was presented by the prosecution. It even required some defense of the individual's rights against those of the state, as described in the Bill of Rights, to convince a few jurors that the state wasn't entitled to the benefit of the doubt, which was a real shocker to me.

The next minor horror in the trials on which I sat was the tendency of prosecutors to play fast and loose with discovery rules. In the most recent, an audio recording made by the arresting officer at the time of arrest was given to the defense attorney--in court--about ten minutes before he was to present his defense, and there was no equipment in the courtroom to play that back, if he found on lunch break, that it might have helped his defense. In an earlier trial, the defense attorney was given a transcript of the statement made by his client to the police the day before the case came to trial. That seems to me to be something which should have been provided to a defense attorney first, not last.

I saw a prosecutor watch as his witness, the prime mover in a crime who was given a plea deal, perjure herself--blatantly--to secure his case against a minor figure in the crime. That one left me with a sour taste, all around, if only because there was evidence not secured by the state which the defense attorney did not, either, because, apparently, the cost would be too high for the expert evaluation of the evidence.

It's all pretty crummy. But, I can't escape the feeling that the general population--because of the political influences of the past twenty-five years or so--is happy to defer to authority more and more, and that the state has come to depend upon that in its prosecutions. Some of that may be due to the increasing privatization of the correctional system, and the need to keep the prison population high. After all, the U.S. has more people in jail than does China, even though its population is more than five times ours. Some of it, certainly, is political. Repressive laws and limitations on defendants' rights are, ultimately, politically motivated.

But, this time around at jury duty, I have to wonder, more than I used to, why a system originally designed to protect the individual against the government now seems so stacked against the individual and is operating in the state's favor. Maybe, it's been that way all along, and I never noticed. Or, maybe, the situation has gotten worse because of the primacy of the authoritarians in the entire system.

But, when a majority of a jury is influenced by a prosecutor's remarks, rather than the evidence itself presented at trial, the common people--from which jurors are selected--can no longer tell the difference between prosecutorial assertion and actual evidence. If that's the case, we're all in trouble. The state can prosecute any of us without fear, overall, of either failure or retribution.

I can't remember the source of the quote, but, when repressive law is instituted, resistance is required. That should include repressive mechanisms of law. And, that resistance should begin in the deliberation rooms of juries.


Post a Comment

<< Home