211. Life imitating blog
Yesterday I finally got around to reading Emily Bazelon's recent Slate article about the Duke rape case, which reads as if she slapped her byline on a press release from the millionaire boys' club's PR firm. And then I read that the North Carolina Bar Association has filed an ethics complaint against the prosecutor for talking to reporters.
Isn't it nice when the news so obligingly illustrates the points made in this blog? One of the most significant themes running through the American criminal justice system is this one:
The people whose rights are being decided should not be given notice or an opportunity to be heard. (See post 207.)
The disciplinary case against the DA is concerned with the right of the people to know what their government, and their elected officials, are doing. But the people themselves have no say in the matter. They can't decide for themselves how much information they want to receive about a pending case. That's for the bar's in-group to decide. (Bar associations are run strictly along the lines of student councils - the chief criterion is sitting at the same cafeteria table with all the other popular kids.) Which illustrates another important point:
In our democracy, the people have no authority to control the administration of justice. (See post 207.)
There's a reason the ethical rules for lawyers condemn a prosecutor's action of letting the people know what their government is doing: it supposedly interferes with the accused's right to a fair trial. Which nicely captures another important theme:
Jurors are impressionable, overly-emotional morons who should not be permitted to decide cases, if it can be prevented. (See post 207.)
The assumption is that prospective jurors simply cannot be trusted to tell the truth about their biases during jury selection, or to abide by their oaths to decide the case on the evidence after being sworn in. If they heard the DA say something or other nine months ago, they will have forever lost the ability to function as rational human beings during the trial, assuming it ever happens.
Whether jurors actually react in that way - simultaneously infantile and endowed with superhuman powers of memory - is beside the point, because
Facts can be manufactured to suit any need. (See post 207.)
It's enough simply to say that jurors react that way.
(Note the pleasing whipsaw effect: Bazelon says the DA is incompetent because he didn't exercise his own independent judgment about whether the accuser is credible, while the bar association says he's unethical because he told reporters he had done exactly that: "I am convinced there was a rape, yes, sir." To be ethical, he should have made that determination but given reporters the impression he hadn't - and the fact that he did give Bazelon exactly that impression is the icing on the cake, the proof in the pudding, the cliche in the dessert. You've got to admire the symmetry of the reasoning.)
An even more basic theme running through the American criminal law is one I mentioned eight months ago:
As the Duke lacrosse players are preparing to demonstrate yet again, it's very difficult to convict a rich person in the United States. (See post 102.)
Another news story, also published yesterday, neatly captures another basic point about the American criminal justice system:
The trial is everything. There is no big picture. There is no reality - or no reality a judge needs to respect - outside the courtroom. (See post 207.)
Baseball has, in the past few years, taken great strides to eliminate steroid use. The players and owners, traditionally sworn enemies, have worked together on this one issue. Confidentiality is one of the things they agreed upon. Now the Ninth Circuit - gee, haven't I heard that name before? - has ruled that the results must be turned over to people who are 100% guaranteed to leak them to the press.
The natural result, of course, will be to give the players' union a powerful incentive to refuse further cooperation. As Bob Lanza, former general counsel for the NBA players' union, told Jorge Ortiz of USA Today: "I think this could be absolutely devastating to the players associations' ability to agree to this type of testing."
But does that matter? No. The only reality is what occurs inside the courtroom, and inside the courtroom the big thing is not the integrity of a sport beloved by millions, but rather ... rather ... Actually, it's not at all clear what the point of the Ninth Circuit's ruling is, except to prove that federal courts can do whatever they want, and you're going to take it and like it.
Friday, December 29, 2006 at 11:38AM in Courtroom ethos, De-democratization, Distribution of powers, Holding reality at arm's length, Perpetrator demographics, Victim demographics
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