2003-07-27 - 9:36 p.m.
TRUTH, JUSTICE AND PEACE
Jim has a restless and inquiring mind. After reading of my recent adventures as an enemy of the people, he wants to know whether the legal system �has lost sight of the original intent of its mission: distributing justice to those who break the law?� He wonders whether the only point of interest after conviction should be �did he really do it?� Jim is likely not the only one wondering. My short answer (and yes, you hecklers, I realize that at four foot eleven inches I can only give short answers) is that asking other questions does not lose sight of justice, it helps maintain it.
The notion that justice is not simply truth is a very old one. �Justice, justice shall you pursue,� enjoins Deuteronomy 16:20. The passage could have said to pursue truth and justice but it mentions justice twice and truth not at all. Even more to the point is the exhortation in Zechariah 8:16 that �You shall administer truth, justice and peace within your gates.� If justice were truth and truth alone, then exhorting the administration of truth would be enough.
Every society needs rules for determining truth. Occasionally, truth is obvious. More often, it is not. Scientific testing that later became available has proved in at least one case that the guy who looked like the killer, drove a car like the killer�s oddly colored convertible, and was in the vicinity of the crime was just that�some innocent guy who looked like the killer, drove a car like the killer, and was near the crime scene. Even confessions are not foolproof. Here in Wisconsin we have had people, particularly the young or the mentally handicapped, confess to crimes that we later discovered they could not have committed.
So, do those rules matter and does it matter whether those rules are followed? The Bible clearly believed that, at least in some cases, the rules mattered regardless of ultimate truth. Deuteronomy 17:6 makes it clear that �[a] person shall be put to death only on the testimony of two or more witnesses; he must not be put to death on the testimony of a single witness.� The Bible does not say that certainty of guilt alone is sufficient.
Besides, failure to follow the rules can dictate the outcome. When a trial attorney fails to present key evidence at trial as he or she should, conviction becomes much more likely. When it becomes known that a confession likely was coerced, the confession itself becomes suspect as does the verdict. When information becomes known that indicates that several jurors did not confess to bias or outside knowledge of some witnesses, the verdict is questionable. The preliminary question, though, becomes not whether the outcome was correct but whether the trial was fair because being sure of truth is hard in the absence of justice.
In addition, punishment matters and so does how it is imposed. In the abstract we often believe that everyone who commits the same crime should have exactly the same punishment, but we generally reject that belief in the specific. Not all armed robberies are the same: some involve no actual weapon and some involve heavy-duty weapons and injuries, for example. More important, perhaps, some have a planner who takes advantage of someone much younger or who is mentally handicapped. In my mind at least, that planner and the one he influences to commit the crime are not equally culpable. In addition, some robbers will be on their first crime and others their fifth. It therefore matters whether all important information was presented at sentencing and whether all that important information was accurate.
We also like to think that all judges are fair or measured in meting out punishment. Yet I have seen some sentencings that were truly ugly and had nothing to do with truth, justice or peace. They seem to have a lot to do with the mood of the judge on a particular day, a political point, or completely irrelevant facts such as whether the shoplifter attended the particular church that the judge approved of. The only effective way to police such things is through postconviction proceedings.
In any event, popular belief to the contrary, if the rules were not followed before conviction and sentence, the defendant does not automatically win and go free. The defendant rarely wins and goes free. The postconviction court can decide the error is harmless and do nothing, can decide that the error goes to the fairness of the trial or plea and grant what playground kids used to call a �do-over� of the trial or plea, or can decide that the error goes to the fairness of the sentencing and grant re-sentencing or modification of the sentence. In very, very rare instances, the court can decide that evidence of guilt is so lacking that no reasonable jury could find guilt and simply overturn the conviction. Most of the time, changes are around the edges, if at all: the concurrent sentence that accidentally was recorded as a consecutive sentence is corrected, the judge reduces the original sentence because he or she discovers that the original sentence will not make the defendant eligible for the drug program the judge intended to make him eligible for, or sentence credit is correctly added and credited.
So, no, I do not believe in locking people up and refusing to think about it ever again. I do not believe that thinking about it perverts justice.
But, Jim, if it makes you feel any better, the issue the other day was �did he do it?�
LAST YEAR: Outlandish Things
TWO YEARS AGO: Balding (Alas, poor van, I knew him, Mr. Philately....)
IN CASE YOU MISSED THEM:
Enemy of the People, Part II
Terrorism in a Small Town
Who Wants to Marry My Husband?
Bath Time
THEY
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Copyright 2006 by Ellen |
