Who Judges the Judges?
The last place to look for justice is in a courtroom.
Fair Trials?
Aren’t you glad that we have a judicial system in which a person is declared innocent until proved guilty? Don’t you wish it were true?
Let’s talk about the way it really is. Yes, in a civil trial between two neighbors in a property dispute or some such, there is a reasonable expectation of a fair trial. The judge probably has no personal interest in the case, and will administer the law equitably. So, for the bargain price of only a few tens of thousands of dollars for the lawyers, the neighbors will have their chance at equal justice under the law.
Now, let’s talk about when one of the parties in the trial is the government. Any government, federal, state, or local. Now, you have a judge, paid by the government, judging whether the government should prevail in the case. I have been assured by attorneys that this is not a problem. I am not so sure.
Even in small cities, the government has a staff of attorneys and investigators with budgets in the millions. The defendant typically has no budget at all dedicated to legal defense. The defendant typically has all they can do to pay their monthly bills. Tens of thousands of dollars for legal defense cannot be squeezed into their already squeezed budget. The government has the upper hand from the beginning. The staff is on salary, and they feel no personal pressure to keep costs down. The defendant, not so much. Plea deals get offered, and the defendant accepts the ‘deal’ based not so much on his guilt but on what he can afford. If he can afford a better lawyer, with greater influence and who can drag things out longer, he’s likely to get a better deal. If not, well, tough.
Let’s remember that these lawyers, both prosecutors and defense, all know each other. And they all know the judge, and the judge knows them. The odd man out is the defendant. ‘Equal justice under the law’, they all say. Talk is cheap; say whatever you want. But lawyers are expensive. And the prosecution lawyers have nothing to lose. If they lose a case, they move on to the next case without any concern. If the defendant loses, he goes to jail. Even when he wins, he has to pay lawyers with money he doesn’t have. ‘Equal justice under the law’. When you think about it, not so much.
We’ve all watched some sort of trial movie or another. The good guys always win. The bad guys always lose. Justice is always served. And we come to believe that that is how it really is. No, it isn’t. Put yourself in a scenario where you are being prosecuted. Oh, it could never happen to you, you say. Like hell, it couldn’t. Put yourself in that scenario, even if it seems odd. Imagine being investigated for something that you didn’t do, or at least didn’t think was illegal. You now have an extensive bureaucracy focused on you. What do you do? Try to talk your way out? Or say nothing and call a lawyer? Be careful which you choose, because the wrong choice will cost you thousands. Tens of thousands. Time in prison.
But you are sure you’re innocent. That’s nice, but it’s not up to you. It’s up to some government officials who may be quite competent and fair minded, or not. You don’t get to decide if you will be treated fairly, they do. Welcome to reality. If you go to trial (most cases get pled out), you will sit in a courtroom and be judged by either the judge or a jury. They will hear what a deep-pocketed staff has put together in order to make their case. They will also hear from the lawyer you cannot afford, attempt to make his case with a limited budget that doesn’t necessarily allow for you to hire your own expert witnesses, your own investigators, or your own counterpart to all of the experts that the prosecution has available. In other words, you are in deep shit. It’s not feeling so much like that movie you just saw, is it?
In the courtroom, there are two tables, one for the prosecution and one for the defense. They are the same size and shape. Everything in the courtroom suggests ‘equal treatment under the law’. Just like in the movie. It all hides the grossly unfair reality. Do us all a favor, and never presume that if a person has been found guilty, or even if they have pled guilty, that they are necessarily guilty. Our founding fathers didn’t trust the very government they were creating. They did all they could to protect citizens from the largesse of government, because they knew what happens when you leave government to its own devices.
Some examples seem to be called for. Perhaps the most heinous case of all time is the McMartin Preschool case of 1983-1990. I’m old enough to remember it in real time. This case makes the Salem Witch trials seem rational and intelligent by comparison. For seven YEARS the prosecution built a case that became more and more absurd. I remember the first news reports. It seemed like something really bad had been going on. But as time went by, it became more and more clear that this was an ugly witch hunt. It took only a few neurotic ‘officials’ to turn this case into a disgusting display of abuse of power by mentally deficient whackos. What is scary is that the ‘system’ that is supposed to supply the checks and balances that prevent such things, didn’t. No other officials, governor, attorney general or anyone else shut the thing down. The media went along, because it sells papers. I will never forget this. It is among my first indications that we must not presume that government invariably works towards what’s best for all of us.
Even when government departments aren’t controlled by whackos, there are still unprincipled ideologues with no internal restraints on abuse of power. One excellent, and not unusual, case is the one described in Howard Root’s book, ‘Cardiac Arrest’. Root was CEO of Vascular Solutions, a medical company that he had created. It’s a public company and does millions in business each year. The company got cited for mislabeling. There were no claims that anyone had been harmed or that the products didn’t work as intended. Mislabeling. And that mislabeling claim was shaky, at best. 2.3 million dollars is what the government wanted as settlement. Root thought about it, consulted his lawyers, and said ‘no’. The point here is that companies get cited regularly in legal shake-downs by government agencies that have WAY too much power and WAY too little supervision. Ultimately, Root won in a jury trial. And his defense cost a mere 25 million, ten times what he could have settled for. To him, it was worth it. He could barely afford it, but it was worth it. How deep are your pockets, when some government agency declares that you’ve done wrong?
I deliberately chose two cases that are ancient history relative to modern times. It’s not that I couldn’t find more contemporary examples; it’s that I wanted to cite cases in which you would probably have no bias. I won’t name any modern day cases, but they’re all over the news, and you probably have opinions about them. But do you have INFORMED opinions about them? Do you presume that the government is getting it right? Do you presume that the government agencies are impartial and professional? Why? Based on what?
I used to be more trusting than I now am. I used to believe that we should trust our government authorities.  Life teaches lessons, if we will learn them. No, I’ve never had my bank account frozen, or been arrested, or prosecuted. This is not personal in that way. It’s personal by way of seeing my country, my culture, degenerate into authoritarian bureaucracy.
No, don’t trust government, just as our founding fathers didn’t trust the very government they were creating. They left government in our hands, which was a novel, radical idea in its time. We are failing their expectations, their hope that a people could successfully control their government, rather than the other way around.
If we are responsible to government, then government should be responsible to us. How about a judicial system in which, if the defendant is subject to jail time, and is found innocent, the prosecutor serves that jail time? Sound crazy? It sounds like equal justice under the law, to me. If a person sues and loses, HE pays the defendant the amount that he sued for. Equal justice under the law. My guess is that we’d see a LOT less abuses of power in such a system.
Governments are not your friend. They are not your Nanny. They are institutions intended to facilitate the functions of society and of a culture. When they fail to do that properly, they have no right to exist. That’s not just me talking, that’s Thomas Jefferson talking. What do You say?
Show me the man and I will show you the crime, as they said in the Stalinist era.
"How about a judicial system in which, if the defendant is subject to jail time, and is found innocent, the prosecutor serves that jail time? Sound crazy? It sounds like equal justice under the law, to me."
Me, too, Rad. Well done!