The system of justice in
America and most of Europe is not perfect.
It has the appearance of being fair and even-handed, but it’s not. It endangers the very rights that it purports
to protect: life, liberty and the pursuit of happiness. Rights that were framed in the
constitutional document this nation professes to love and uphold.
In this country a person is
presumed innocent until determined by a collection of his peers to be guilty[1]. This principle guides all American criminal
proceedings in the courts of the land.
It is the result of lofty moral concepts dating back to 19th
century England. It seems good to us
(we Americans I mean). It seems to be
the ‘right’ way to deal with the inequities of our great society. It is the bedrock of a vast literature known
as the nation’s Laws. We have a notion
of justice for every act of departure from the conforming nature we require of
persons living in our realm. We have a
basis document called The Constitution that is never questioned or never
ignored in our legal proceedings, and criminal prosecutions. It guides all our complicated rituals in the
citadels of our justice system; the Courts.
It is a descendant of a tradition that we’ve received from European invaders
to this land. It has deep-rooted
philosophic machinery that is based on empirical ideas of English
thinkers. Yet, there is something most
definitely wrong with American justice.
It is not certain justice. It
can’t guarantee that someone accused of a crime is unerringly guilty of this
crime. It can only assure that if we
follow the rules of its jurisprudence, we most likely will arrive at a
conclusion that adjudges a person guilty correctly. This is not enough for me.
If someone is going to be put through a ritual of legal prosecution, and
may lose the thing most precious to him: his life, the system should be
so certain, as to determine without doubt, he is guilty of whatever crime he is
accused. But, this isn’t humanly
possible, defenders say. And they are
quite correct. What they don’t say is:
Why do we allow a group of 12 individuals to stand in judgment over the accused
offender? They, those with juridical
power, judges and their adjuncts, attorneys, never even consider that the system
they’ve created could be irrevocably flawed.
They don’t perhaps because they are so embedded in its substance as to
be unaware of its fallible nature?
To illustrate this point I’ve
created a fictional example of a man that is accused of raping and murdering
his girlfriend. He is arrested and held
until he can be sent to trial. He has
rights no doubt. He has the right to
proper representation in the proceedings of the trial by persons skilled in the
rituals (laws) that will govern his fate.
He is accused and he can defend himself through his advocate against the
accusations. The jurisprudence of the
nation exacts a punishment for his act if he is adjudged guilty of them. This is all common knowledge here and
abroad. What is not so well known, is
that this practice is not at all logical or reliable. It consists of lawyers practicing a modern form of
sophistry. They must convince a group
of 12 people that their client is either guilty or not guilty of a given
offense as determined by the Laws of the nation. What they really do is akin to an art form. These lawyers collect
evidence, research jurors, and find damaging tidbits about the opponents and
then put on an elaborate stage production for the 12 people that will sit in
judgment over the accused. Is it
possible with methods like these that the guilty can go free and the innocent
can be punished? Justice, specifically
criminally justice, in American (and by association European) justice is not a
necessary logical deductive process, but a sophistic dramatic play. To put such serious matters as life or death
in the hands of well-rehearsed actors like lawyers seems to me, a greater moral
harm than the bad act the accused is charged with committing!
One additional bombshell flaw
in this system is mind-boggling. This
system operates by randomly choosing its jurors from the population. It screens them, through an interview
process, and then installs them in the proceedings as jurors. This country has a rampant crime rate and
many criminal offenders that are not caught or prosecuted year after year. Now with that said, it is possible, that a
criminal, yet undiscovered, can actually sit on a jury! Of course, there is
screening of jurors to make sure they don’t have criminal backgrounds, but in a
country of near 300 million souls this is impractical, and bound to allow
criminals to sit on juries.
Lets recap, here are the
problems with the American system of criminal justice:
·
It is based on the
assumption that the truth of guilt or innocence can be determined by a trial,
in which a group of randomly chosen citizens hear argumentation from legal
professionals.
·
It further assumes that
the determination of this truth, need not be absolutely certain, but only
certain to the degree that any reasonable person could not find otherwise.
·
Worst of all, it does
not require that the counselors arguing for or against the accused prove
anything by an infallible logical deduction.
It allows the lawyers to manipulate the jury to his viewpoint with any
and every tactic at his disposal and thus allows such a person to not actually
find the truth, but possibly pervert it.
·
The system may actually
have criminals judging criminals via its jury selection process.
Lets take a case where this
trial by jury and argumentation via advocates could be very wrong and very,
very deadly for the subjects of its prosecution.
Raymond has been accused of
brutally raping and stabbing his girlfriend Frazina to death. He claims he never did it. Yet there is circumstantial evidence and
even more genetic evidence that he was at the place in which she was
killed. The prosecutor is convinced of
his guilt. Raymond avers he’s
innocent. The genetic evidence against
him happens to be his sperm in the apartment.
But, the medical experts can’t determine how old it is. He says, he screwed her a week before
the murder and not on the night of the murder.
The prosecutor knows this, but makes use of the genetic evidence to
convince the jury that Raymond might be the killer. The defending attorney on the other hand, tries to lessen the
damaging nature of this evidence. He discounts it by trying to show that
Frazina was promiscuous. He gives the
jury gory details that she had engaged in sex with 4 and 5 men at the same
time. He implores the jury to
understand that genetic evidence can be misleading and even wrong. It is to no avail. The jury returns a verdict of murder in the 3rd degree
and Raymond is sentenced to die by lethal injection. 10 years later he is
actually put to death.
Two weeks after Raymond was
executed by the State, a little known genetic specialist reviews the preserved
genetic sperm evidence of this trial and finds that the prosecution used the
wrong sample! So now we have an
innocent man, executed by the State through the machinations of the Law.
What went wrong with the
fictitious case above? The answer is
simple. It was not the evidence or the
stories of the accused or the zeal of the prosecutor. No, God No! It was the system itself! The system is constructed in
such a way as to allow the guilty to be exonerated and innocent punished. That is the system contains within its power
the possibility to miscarry justice as the system itself defines it to
be. How can it do this? Again the answer is elementary. It relies upon the notion of individuals in
a free, open, trusting, consenting-to-the-rule-of-law society, and the will of
those laws, expressed by the jurisprudence of that society to make decisions
about members within it. It (I mean the
system) believes that men can deliver judgments about their fellows in
deliberations after being subject to rational argument about acts committed
within the realm it rules. This could
not be more wrong! I repeat this notion
could not be more wrong! It is
anti-rational. So, an secretary,
welder, bartender, strip-dancer, high school principal, psychiatrist, economist
and the like are asked to decide if such complex issues as whom committed a
murder is true, from the argumentation of two lawyers. If I didn’t know this were true, I wouldn’t
believe it! Would anyone in this
country, ask these same people to determine why the Space Shuttle blew up! Why does this country (and the European one
from which it sprung) believe that the theatrical gaming of lawyers to convince
jurors of a crime is a surefire way of finding justice? Other societies seemed to have it better
organized. In certain 3rd
world countries as they are derisively termed, a panel of skilled judges
make these all-too-important decisions.
But, the 1st world advocates retort: these guys are usually
corrupt, and paid lackeys of their warlord controllers. But, is their thing any better? From what I said, it most certainly is not.
Okay Mr. smart-ass, you say,
if this system is so BAD, then you tell us a better way to meter out
justice? I’m glad you asked, because I
got a ready answer for that rather hostile comment.
We are now at the point where
Artificial Intelligence can actually start to do something to help us. That is, to help human society contend with
some of its social ills, like crime and punishment. Why not let an AI arrive at a deductive conclusion about the
heinous crimes that human juries now decide, i.e. rape, murder, child
molestation and violent attacks? We
could have human judges verify the conclusions, which the program would be
required to supply in written documentation.
They would agree or disagree, and the human judges would have the last
word. In this way, the elements of
humanly determined punishment for crimes committed would be preserved, while
the internal fallibility of arriving at wrong verdicts is avoided. The only argument against this would be that
this would lengthen the process of criminal prosecution and hopelessly back up
the court caseload. To this I say, it’s
already in that state and if we value life and liberty no time period can
gainsay a fair process of delivering justice.
Perhaps you can’t go this
far. I understand this reluctance. Besides, the state of AI development in 2003
is unfortunately not sophisticated enough for an expert legal system to render
an eloquent explanation of its deductions on legal cases in my estimation. Maybe another 5 to 10 years will change
that. Still, we can get some control
over this process. Require that juries
that deliberate and reach verdicts in violent cases, draft detailed summaries
of how they arrived at their verdict.
This report would not just be a polling of how each juror voted, but a
full description how the jury came to either believe or disbelieve in the guilt
or innocence of the accused. We could
create a new job description: Jury Verdict Reporter. This person would be a journalist, whom is
wholly dedicated to interviewing a jury after the verdict has been delivered,
taking notes and writing a comprehensive description of how the verdict was
formulated within 48 hours of its announcement. This document would be published and submitted to the press for
publication. In this way, at least all would
be informed of how a person was condemned to die. We could even go further and have a panel of judges review the
document with an eye toward spotting any discrepancies that would invalidate
the jury’s verdict. Going further yet,
we could submit the document again to a computer program designed to examine
from a deductive logical perspective these documents. Doing this would not retard the process of finding justice it
would improve it. In cases where the
guilt of the accuse is virtually beyond doubt because of the nature of the
crime (for instance someone is gunned down in the presence of TV cameras), then
an explanation of how the jury arrived at guilt could also become an expression
of the outrage of the community with the perpetrator that has offended it.
11/22/03 Ken Wais
[1] By the way, for
the sake of clarity, I am going to stick to the masculine structure of the English
language when referencing case subjects and use the term he or him
when I mean all members of the gender male or female. It gets trying to type he/she and him/her, sorry but this is a
masculine gender based language