Sunday, July 13, 2008

Criminal justice or Kafka's novels?

The Sixth Amendment to the US Constitution provides for impartial trial to the accused. However, as I take my clients to trial, I realize how this Amendment is shed and trampled over daily… Once a judge told me, ‘Before you start your Sixth Amendment business, let me tell you something…’ And when I object to the court on the basis of this Amendment, judges frown on me and look at me as if I just cursed. Well, as you are sitting there in court next to your client, an individual charged with a crime, you remember Kafka’s writings. The judge is sitting as a representative of the prosecution (with some exceptions, and most are former District Attorneys), the prosecutor is sitting as the representative of a world where the law does not matter, and the jurors are sitting there influenced and under the impressions of the judge’s attitudes towards your client and case. Jurors also are humans who are afraid of crime and who want the streets safe. So, what happens to the idea of presumption of innocence. Trust me, it is surreal. Your objections are overruled even before you state your grounds. Your jury selection is limited by sua sponte objections by the judge. The prosecution’s groundless objections are sustained. And when the prosecution makes his/her closing argument, the law is erased and replaced with something totally different. Prosecution is allowed to shift the burden of proof on the shoulders of the defendant. ‘Prove your innocence, Mr. Defendant. While we do not have any hard, real proof that you committed this crime, we are asking for a Guilty verdict because you cannot prove your innocence.’ The judge nods her head and when you object on Sixth Amendment grounds and case law, you are basically made a clown in front of the jury. You are viewed as the incompetent, unethical lawyer. The jurors who have little idea about the law, are not even allowed to get the real law from your mouth. Then you try to cross-examine prosecution’s witnesses, all you get is objections that are invalid, but sustained. Before you even try to explain that the objection is invalid because of certain reasons, the judge sustains and does not even want to hear it. So, what is going on with the Bill of Rights and how they are applied? All the prosecution is interested is conviction, whether there is evidence or not. All the judge wants is to keep her position and not be found ‘soft’ on crime. As far as all the law that has taken a while to develop and function to protect the rights of the accused, that law is erased and replaced with a practical ‘substitute’—easier to apply... It is very easy to be 'tough' on crime and punish. It is much harder to be compassionate and empathetic towards a human being who has committed a disgusting crime. And it is very hard to dispassionately recognize that person's rights.

It takes a while to turn a democracy into a dictatorship. It really takes decades. One day our children, their children will wake up and see their rights taken away from them, unnoticeably and slowly. It will be too late to fight then and demand them back. That is why, it is important to defend these rights now, relentlessly, at every step of it.

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