Friday, August 24, 2012

Men in Black*

The judicial system, both civil and criminal, is a vast consortium of individuals and entities charged with enforcing and interpreting the law.  Police officers, detectives, technicians, prosecutors, attorneys and judges are tasked with maintaining the peace, keeping citizens safe, judging between parties, determining innocence or guilt and passing sentence or handing down decisions.   The United States Constitution established three branches of government, one of which is the judicial branch.  Congress has the responsibility to make laws, the Executive Branch carries out the daily functions of the government and the Judicial Branch interprets and enforces the laws passed by the Legislative Branch. 

A familiar picture or sculpture around courthouses is that of Lady Justice.  She is shown carrying scales, a double-edged sword and is blindfolded.  Her blindfold symbolizes objectivity or impartiality, her sword symbolizes the power of reason and justice and her scales are used to measure the case’s support and opposition.  For most of us who have had little opportunity to interact personally with the judicial system, these images and ideas framed by our constitution are comforting and lull us into a sense of security and safety.  We believe that truth and justice always prevail and believe that as long as we obey the law, do what is right, treat our neighbor as ourselves, etc. that we will be ok if ever we find ourselves involved in the judicial system.  

But what if Lady Justice is not blind?  What if her scales are weighted by personal convictions, bigotry or purchased influence?  What if her sword is used aggressively rather than defensively—what if its power is used nefariously?  How will we know?  And what can we do about it?

For those who have ever been involved with the judicial system, whether in a civil action (divorce, lawsuit, etc.) or a criminal one, it soon becomes apparent that much of what happens in a courtroom is a game.  Justice is often based on which side can present the better argument and often means that litigants with deep pockets can buy a different sort of justice than those who have holes in their pockets.  “Dream team” attorneys with a vast array of private investigators, professional witnesses and unlimited resources easily overwhelm the public defender who has a large case load and little or no support.  Lady Justice’s scales are weighted by the ability of one party to afford a better defense/prosecution than the other party.

But I think most of us perceive that the judge is above all of the fray of the other athletes in the game; he is the referee.  Indeed, he sits higher than anyone else in the courtroom and wears a black robe to distinguish him from all others.  All must rise to demonstrate respect and honor when he enters or exits the room.  Everyone deferentially calls him “Your Honor” in his courtroom; he is king of the room.  We look to the one in the black robes to make fair and just decisions.  We look to him to even the playing field, especially when one litigant has greater resources than the other.  We expect that he will deal fairly and justly.

But what if he doesn’t?  What if he is blinded by personal bias, greed or an over-identification with one side?  What then?

Imagine that you are the litigant sitting at the table with your “advocate,” the one charged with speaking on your behalf, who is responsible to stand beside you in the legal proceeding, to represent your best interests, to argue your case.  Regardless of whether yours is a civil or criminal proceeding, the evidence for and against your position will be reviewed.  The personal details of your life are examined under the harsh light of justice and in full view of the public.  Maybe reporters are present and breathlessly report lurid details to a waiting public.  You feel exposed, humiliated, powerless and fearful.  But you look reassuringly to the person in the black robe.  He will deal fairly with you so you place your hope in him.

Others are talking about your life, crime, etc. but you are forced to remain silent.  Attorneys and witnesses put their “spin” on key events of your life and you cannot speak.  You must rely on your advocate to speak for you.  You cannot just go to the judge and plead your case because you are not qualified to play in this game.  So you rely on your public defender or attorney.  You may be feeling the strain of the heavy legal fees.  Every phone call, email, text message or action your attorney does on your behalf is billed to you at staggering rates.  Conferences and contacts your attorney makes on your behalf with others is also billed to you and if you question what he is doing, he may use all of the power and influence he has in the legal community against you.  So you more often than not remain silent, even when you want to scream, because you can no longer afford to speak.  But you keep looking to the individual in the black robe and hope that in the end, he will judge fairly.

As witnesses are sworn in during a court proceedings, they promise to tell the truth, the whole truth, and nothing but the truth.  Violating this sacred oath is punishable.  Truth is held in highest regard in a courtroom proceeding.  But is it?  Each side shades the truth to fit their position.  In a jury trial, “truth” that one side deems prejudicial or offensive is kept from the citizens charged with deciding the case.  Only the parts of the truth that will help bolster the position of each legal team is used; the rest is discarded.  The “whole truth” is rarely looked at.  So as you sit and listen to the arguments and witnesses, you watch your truth being distorted, enhanced or denied, knowing that your life hangs in the balance.  It is a maddening, anxiety-ridden ordeal.  But you look to the person wearing the black robe and believe that in the end, he will see the real truth of the case and judge fairly.

As you sit at the table with your attorney and observe all of the game being played around you, you feel terribly powerless.  You cannot effect change for yourself.  You cannot speak for yourself.  You cannot stand up for yourself.  And the stakes for you are huge.  Maybe your freedom is at stake, maybe your financial security is on the line, maybe it is your very life that is at risk.  But you are powerless in this judicial exercise.  You are a spectator in possibly one of the largest dramas of your life.  So, you stare at the individual in the black robe and trust that he will speak for the powerless, that he will judge fairly.

But what if he doesn’t?  What if he has already formed an opinion about you or your case before he even hears the arguments?  What is he has already decided that he just doesn’t like you or your position?  What then?

Imagine the sense of betrayal you feel when the person in black decides against you.  Can you feel the shock, bewilderment and terror?  You invested your hope in him.  You believed that he would judge fairly, would seek justice, and would discern the truth.  You trusted that he would fairly compare the evidence for or against you with the law.   You believed in him and the sacred oath that he swore to uphold the law.  But he has betrayed you.  He holds your life, happiness and security in his hands and he has ruled against you.  Can you feel the powerlessness of your position?  You have no ability to argue truth or evidence with him.  You cannot reason with him or question his decision.  You are at his mercy and you are incredibly powerless.

Everyday in thousands of courtrooms across this country, people just like you and me sit while an individual in a black robe decides their futures.  Sometimes justice prevails; other times it does not.  Sometimes the individual in the black robe is honest but other times he is corrupt.  We expect the black-robed ones to approach each case with objectivity and impartiality but is this not an impossible task?  Do we not all bring our own personal biases and opinions to each interaction we have with another?  Do we not all judge daily based on our personal experience and history?  The black-robed ones are not infallible.  They bring their human weaknesses, foibles and opinions to each case.  They do not necessarily judge solely on the merits of the case.

So what do we do?  Do we throw the whole system out and start over?  Is it possible to reform the system?  Or is it too far gone?  Do we need to declare its death and move to plan B, whatever that might be?  Is “justice” just?

The answer eludes me so I leave it to those with more education and discernment than I.  But one thing I do know, justice is not always just.  The innocent are punished and the guilty are often set free.  Families are torn apart, children suffer, women are judged unfairly by a system whose values are still in the 50’s, and the only ones profiting from the system are the attorneys and judges.  So, for me, the next time I read about a case in the paper, I will question what I read.  How much of it is truth and how much spin?  The next time I hear a breathless reporter tell the lurid details of a crime or a divorce, I will listen but not accept it as the absolute truth.  The next time I hear of a vicious criminal, I will wonder what her story really is—you know, the part that was judged extraneous to her criminal case. I will sit with the ability to not know the whole truth and will just try to see the individual.  And I will champion anyone who fights to reform our “unjust” justice system, because I will never again believe that the individual in the black robe personifies Lady Justice.

*Use of male pronouns rather than gender-neutral ones is not intended to diminish the existence or value of female jurists but rather to make for smoother reading.

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