Flawed Jurisprudence

Flawed Jurisprudence


The system of justice in America and most of Europe is not perfect. It has the appearance of being fair and even-handed, but itís 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.


Legal Justice in America


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 Ďrightí way to deal with the inequities of our great society. It is the bedrock of a vast literature known as the nationís 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 weíve 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 canít 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 isnít humanly possible, defenders say. And they are quite correct. What they donít 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 theyíve created could be irrevocably flawed. They donít perhaps because they are so embedded in its substance as to be unaware of its fallible nature?


To illustrate this point Iíve created a fictitious case 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 donít 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:


ē         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.


ē         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.


ē         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.


ē         The system may actually have criminals judging criminals via its jury selection process.


A Fictional Example


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 heís innocent. The genetic evidence against him happens to be his sperm in the apartment. But, the medical experts canít 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.


Why Does Western Jurisprudence Fail?


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 didnít know this were true, I wouldnít 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.


A Possible Solution


Okay Mr. smart-ass, you say, if this system is so BAD, then you tell us a better way to meter out justice? Iím 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, itís already in that state and if we value life and liberty no time period can gainsay a fair process of delivering justice.


Perhaps you canít 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 juryís 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

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