Yesterday I posted an essay on Christianity and capital punishment. That post is written from my perspective as a Christian, indeed as a professional Christian, one trained and ordained in the Christian ministry. But for many years before I became an ordained Christian pastor I was a lawyer. I didn't practice criminal law, but I tried many civil cases and experienced the workings of the American judicial system from the inside in the context of personal injury and professional liability cases. I certainly don't have as much experience trying cases to juries as many lawyers do, but I have a lot of such experience. Putting aside for the moment, and for purposes of argument only, the foundational moral objection to capital punishment that I expressed in yesterday's post, today I want to explain how I do not see how anyone with any experience at all with the American legal system can support capital punishment. I do not see how anyone with any experience at all with the American legal system can support capital punishment because the undeniable truth is that courts get it wrong.
Two fundamental truths about the legal system lead to the conclusion that courts get it wrong and cannot guarantee infallible results. The first is that in a trial the court's primary concern is not with a proper outcome, that is, not with a verdict that accurately reflects what actually happened in the matter before the court. The court's concern is with the proper functioning of the system, not with the result. The legal system defines justice not as a result that reflects what actually happened but as a result, whatever it may be, arrived at through the proper functioning of the legal system. In the legal system justice isn't about guilt or innocence. It is about due process. The court's concern is that the procedures established for the conduct of cases be correctly understood and applied. The court's concern is that the parties, in a criminal case the defendant in particular, receive due process. Due process doesn't mean that any particular result be reached. It means that the defendants right established by law are respected. It means that the law is properly interpreted and applied. This concern once lead some of the conservative justices on the US Supreme Court to say that factual innocence is not a reason to grant habeas corpus relief to a defendant sentenced to death. Some justices said that the execution of an innocent person is a constitutionally unacceptable result, but the statement by the conservatives that the court's concern is not innocence or guilt but the proper working of the system reflects, albeit perhaps in extreme form, a fundamental truth about our legal system. In that system justice is not primarily about factual truth. It is about process. Thus, it is quite possible for the system to accept the execution of an innocent person, as the system in Georgia may have done last night. It's concern is not primarily guilt or innocence in any objective sense. It is the proper functioning of the system. The legal system in fact defines justice as the proper working of the system.
The second truth about the legal system that results in results that are simply wrong is that juries get it wrong. They don't always get it wrong. They may not get it wrong most of the time, but they get it wrong often enough. I was once told by a very experienced trial lawyer that you can't call yourself a real trial lawyer until you've won a case you should have lost and lost a case you should have won. Anyone who has tried more than a handful of cases has had that experience of winning cases that should have been lost and losing cases that should have been won. I certainly have, especially perhaps in my case the experience of losing cases I should have won. Juries get it wrong. They misunderstand the evidence. They misunderstand the law that the judge gives them. They are swayed by emotional arguments. They are swayed by passion and prejudice. This is not particularly to condemn the citizens who serve on juries or to say that they are flawed human beings. It is only to say that they are human beings. They are human beings who are trained neither in the law nor in the psychological dynamics at work whenever another human being gives testimony in court. I often had the sense that jurors--and sometimes judges and attorneys for that matter--check their common sense at the courthouse door. The atmosphere of a trial is so artificial and so foreign to most jurors that it is easy to start thinking and evaluating people and facts in ways that are different from the way we think and evaluate matters in everyday life. For all of these reasons, and I suppose for many others besides, jurors get it wrong. I am convinced that any trial lawyer who claims that juries always get it right is simply deluding herself.
In the kinds of cases I tried the court's lack of concern with determining what actually happened in a case and the juries getting it wrong had no truly catastrophic consequences. Most of those cases were only about money, and none of them was about life and death. Perhaps a defendant had to pay money he shouldn't have had to pay; but in most of my cases that meant an insurance company had to pay, so the result was hardly disastrous. Maybe an injured person didn't get money she was entitled to, but still we're only talking about money. We were never talking about a person losing his or her life.
In capital cases of course we are talking precisely about a person losing his or her life. In that context the fact that juries get it wrong even when all of the proper legal procedures are followed is simply intolerable. An execution can't be undone. No one other than perhaps a conservative judicial extremist like the conservatives on the US Supreme Court, can accept the execution of an innocent person even if they can accept the execution of an guilty one. Our legal system, no legal system, can guarantee that it's results are always correct. I therefore fail to see how our legal system, how any legal system, can tolerate capital punishment.
Most Americans say murderers should be executed, but most Americans are unaware of the difficulties and uncertainties involved in every case of trying to determine if a defendant is truly a murderer or not. They are unaware of the nature of the legal system and its concern with process over substance. Those of us who have worked in the legal system, even if we've never come close to a capital case, know what the public does not know. In the legal system there simply is no absolute safeguard against wrong results.
There's a famous story about how new law school students so often come to law school saying they are going to go out into the world and work for justice and how some crusty old law professor will say to them: This is a law school. If you want justice, go to seminary! Some of us did. That crusty old professor's statement may be a bit extreme, but it is not fundamentally untrue. The legal system is a human institution, and as such it simply cannot promise just, infallible results. For that reason alone, even if for no other, we simply must stop executing people.
Two fundamental truths about the legal system lead to the conclusion that courts get it wrong and cannot guarantee infallible results. The first is that in a trial the court's primary concern is not with a proper outcome, that is, not with a verdict that accurately reflects what actually happened in the matter before the court. The court's concern is with the proper functioning of the system, not with the result. The legal system defines justice not as a result that reflects what actually happened but as a result, whatever it may be, arrived at through the proper functioning of the legal system. In the legal system justice isn't about guilt or innocence. It is about due process. The court's concern is that the procedures established for the conduct of cases be correctly understood and applied. The court's concern is that the parties, in a criminal case the defendant in particular, receive due process. Due process doesn't mean that any particular result be reached. It means that the defendants right established by law are respected. It means that the law is properly interpreted and applied. This concern once lead some of the conservative justices on the US Supreme Court to say that factual innocence is not a reason to grant habeas corpus relief to a defendant sentenced to death. Some justices said that the execution of an innocent person is a constitutionally unacceptable result, but the statement by the conservatives that the court's concern is not innocence or guilt but the proper working of the system reflects, albeit perhaps in extreme form, a fundamental truth about our legal system. In that system justice is not primarily about factual truth. It is about process. Thus, it is quite possible for the system to accept the execution of an innocent person, as the system in Georgia may have done last night. It's concern is not primarily guilt or innocence in any objective sense. It is the proper functioning of the system. The legal system in fact defines justice as the proper working of the system.
The second truth about the legal system that results in results that are simply wrong is that juries get it wrong. They don't always get it wrong. They may not get it wrong most of the time, but they get it wrong often enough. I was once told by a very experienced trial lawyer that you can't call yourself a real trial lawyer until you've won a case you should have lost and lost a case you should have won. Anyone who has tried more than a handful of cases has had that experience of winning cases that should have been lost and losing cases that should have been won. I certainly have, especially perhaps in my case the experience of losing cases I should have won. Juries get it wrong. They misunderstand the evidence. They misunderstand the law that the judge gives them. They are swayed by emotional arguments. They are swayed by passion and prejudice. This is not particularly to condemn the citizens who serve on juries or to say that they are flawed human beings. It is only to say that they are human beings. They are human beings who are trained neither in the law nor in the psychological dynamics at work whenever another human being gives testimony in court. I often had the sense that jurors--and sometimes judges and attorneys for that matter--check their common sense at the courthouse door. The atmosphere of a trial is so artificial and so foreign to most jurors that it is easy to start thinking and evaluating people and facts in ways that are different from the way we think and evaluate matters in everyday life. For all of these reasons, and I suppose for many others besides, jurors get it wrong. I am convinced that any trial lawyer who claims that juries always get it right is simply deluding herself.
In the kinds of cases I tried the court's lack of concern with determining what actually happened in a case and the juries getting it wrong had no truly catastrophic consequences. Most of those cases were only about money, and none of them was about life and death. Perhaps a defendant had to pay money he shouldn't have had to pay; but in most of my cases that meant an insurance company had to pay, so the result was hardly disastrous. Maybe an injured person didn't get money she was entitled to, but still we're only talking about money. We were never talking about a person losing his or her life.
In capital cases of course we are talking precisely about a person losing his or her life. In that context the fact that juries get it wrong even when all of the proper legal procedures are followed is simply intolerable. An execution can't be undone. No one other than perhaps a conservative judicial extremist like the conservatives on the US Supreme Court, can accept the execution of an innocent person even if they can accept the execution of an guilty one. Our legal system, no legal system, can guarantee that it's results are always correct. I therefore fail to see how our legal system, how any legal system, can tolerate capital punishment.
Most Americans say murderers should be executed, but most Americans are unaware of the difficulties and uncertainties involved in every case of trying to determine if a defendant is truly a murderer or not. They are unaware of the nature of the legal system and its concern with process over substance. Those of us who have worked in the legal system, even if we've never come close to a capital case, know what the public does not know. In the legal system there simply is no absolute safeguard against wrong results.
There's a famous story about how new law school students so often come to law school saying they are going to go out into the world and work for justice and how some crusty old law professor will say to them: This is a law school. If you want justice, go to seminary! Some of us did. That crusty old professor's statement may be a bit extreme, but it is not fundamentally untrue. The legal system is a human institution, and as such it simply cannot promise just, infallible results. For that reason alone, even if for no other, we simply must stop executing people.
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