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FIVE, SIX, SEVEN, EIGHT
Legal Lamentation
A heartfelt plea for a return to logic and order in America.

by Rita Ayers
October 3, 2007

Many of us go through life with a dream of making a difference; of leaving a legacy behind us that bears our stamp. I find myself torn between retiring and sitting on a beach somewhere, listening to the waves lapping and waiting for a cabana boy to bring me the next frozen fiesta in a coconut, and latching on to something I feel passionate about and fighting to bring about change. I can't say they are both equally attractive.  I do wonder, however, which would bring me the most lasting pleasure.
 
The reason that the beach idea will probably win out is because I will not be able to choose just one area of American society to rework according to my own rules. I have a million ideas to "fix" public education; likewise, the insurance industry could benefit from my plan – or rather, the public would benefit from my plan (and the insurance industry likely would not). I have already written about my frustrations with each of these segments (see CPR is Needed for Public Education in America and Between a Rock and a Hard Place). I have a new rant this month, and it has to do with our system of injustice in America.
 
I am pretty sure that our forefathers really meant it when they said that the accused was entitled to a fair and speedy trial. I'm not so sure that either of these things is possible today. It is a well-known fact that the huge amount of lawsuits currently clogging all of our courts has made the term "speedy" a joke. A lawyer I know personally revealed that court cases are strung out for several reasons. Because lawyers have more than one client at the time, they have to be able to juggle all of them and the research required for each. But, most importantly, they have to string the clients along to provide them time to earn the money to pay the lawyer's fees. 
 
Only 5% of rapes in this country are ever even reported; one of the primary reasons is that most victims want to avoid a lengthy trial and move on with their lives as quickly as possible (see Victims Rights Law Center). 
 
Another reason is that victims fear an invasion of their privacy. I recently watched an interview segment featuring Wendy Murphy, who has written a book called And Justice for Some. Murphy, a former prosecutor, details case after case where the criminal's rights take priority over the victim's. Defense attorneys can frequently subpoena the victim's private medical records – yet, just try to gain access to your own medical records sometime because you'd like to move them to another practice! Thus, we turn our attention to the "fair" part of the Constitutionally-guaranteed right to trial.
 
The actual text of the Sixth Amendment does not mention the word "fair." Rather, it guarantees the accused the right to a speedy and public trial by an impartial jury. I do not know if there can actually be such a thing as an impartial jury, as everyone comes to the table with their own morals, values, experiences, and notions. What I do know is that I have personally witnessed, on three occasions, the most articulate (and seemingly most intelligent) people excused from jury duty in favor of those the lawyers perceived were more easily manipulated. I also even saw this with my own eyes:
 
One by one, each potential juror was asked if they knew the plaintiff or the defendant. One woman answered, "Yes, I know the defendant. He is my cousin." 
 
She was seated on the panel.
 
Despite the inherent flaws in the system of picking twelve impartial jurors, I can see that it could potentially be "fair." Yet, they are also human, and quite capable of making a mistake. As of this writing, the Innocence Project has helped to free 208 people sitting on death row with DNA evidence.  This statistic scares me to death. How many innocent people have already been executed? I am not blaming the jurors; they made a decision based on the evidence presented to them. What I am blaming is the ridiculous, convoluted legal entanglement that prevents all of the facts from being known – the legal mumbo jumbo that lawyers throw into the mix to have all sorts of important information tossed out before it can ever be considered.
 
I watch a lot of Court TV. Did you see any of the Phil Spector trial? If not, here's a quick recap. Music producer Phil Spector was accused of murdering actress Lana Clarkson in his home on February 3, 2003. First, it took a year and a half to charge Spector with Clarkson's murder. It took another three and a half years for the case to come to trial. After a full five months in court, the jurors could not reach a unanimous decision; they were split 10-2 for conviction (see this article from the LA Times with their comments about their roles as jurors). So, what now? The whole thing has to happen all over again, and won't begin until at least next spring. Doesn't sound too speedy to me. Meanwhile, Spector is free to roam, as he has been since the beginning. He hasn't been jailed because he has the financial resources not to be. Our prisons are crowded with the poor.
 
Which brings me, at long last, to my "solutions" for this big mess.
 
1) Eliminate trials for people who are clearly guilty. 
 
If the crime has been captured on videotape, as in the case of a bank robbery, and the criminal is easily identifiable, why waste time and resources on a trial? Let a judge view the tape and pass sentencing. The same holds true for DNA evidence. I'd rather spend tax dollars having a scientist prove – or disprove – a person's guilt than giving them a court-appointed attorney who has no belief in the person's innocence but must provide a defense for them.
 
2) Eliminate elections for judges.
 
I have a real problem with this one. The highest court in the land, the Supreme Court, has justices who are appointed for life by the President. Why should state and local judges be selected differently? The fact that a judge has to run for re-election absolutely influences his decisions; how can he be impartial if one of the lawyers or litigants has any power over him being able to retain his job?
 
3) In cases where a trial is necessary, allow all information to be known.
 
Nothing should be kept out of court when a person's future is at stake. Hearsay? So what? If intelligent, impartial citizens are on the jury, they should be able to determine that the smoke has fire underneath it if it does. Did you know that if a plaintiff has already received an insurance settlement for the same claim they are suing for, the jury is not even allowed to know that? And did you know that if the insurance company has cancelled that policy for filing a fraudulent claim, the jury will never learn that (very relevant) fact either?
 
4) Limit the number of clients a lawyer may serve at any one time.
 
Actually, I'm thinking just one per guy. You have to finish up one case before you can move on to the next. That will help them move things along at a more rapid pace! If their living depends on finishing a case and moving on to another, maybe they won't throw all these motions to postpone in there. It will also prevent a client from having to re-teach the lawyer the details of their case each time they meet, because the lawyer isn't confused by the details of the 50 cases he's working on.
 
5) Select the jury by pulling names out of a hat.
 
The pre-trial jury selection, where lawyers are able to strike potential jurors based on their belief that certain ones have preconceived notions or they cannot easily be swayed, should be outlawed. If an individual is competent enough to have been called to jury duty, they should be allowed to serve. It will all balance out in the wash – there will be some people who will pre-judge in favor of the prosecution and others who will pre-judge in favor of the defendant. The first twelve pulled are on the first jury; the second twelve on the second, and so on. During the times I have been called to jury duty, I have never been selected, while others in my pool were selected for every case.
 
6) Standardize punishments.
 
Much the same way that a bank has fee sheets for its services, there should be a standard sentence for crimes committed. Steal a car? Three years, plus buy a new same-model vehicle for the victim. Rob a bank? One day for every dollar stolen. Kill someone? Life, period. None of this 54 years or concurrent life sentences with possibility of parole in 20 years or anything that can be finagled out of on a technicality. You should never be allowed to re-enter a society where you have proven yourself dangerous. 
 
7) Set time limits.
 
The Sixth Amendment alludes to a period of one year as being an acceptable time frame, although it is not set in stone. Last week, my local news station featured a man on death row at Holman Prison in Atmore, about one hour north of me. He was scheduled to be executed the next day for a murder committed in 1982 (a mere 25 years after the crime occurred). The newscast explained that there was a possibility the execution would be delayed yet again while the Supreme Court decided if lethal injection was cruel and inhuman punishment. The governor vowed not to order a stay in this execution and time was drawing near. Surprise, surprise! The execution was indeed stayed for 45 days to allow Alabama to "adjust its lethal injection protocol." Meanwhile, the news station had conducted a poll of its viewers. Only 7% felt that lethal injection was cruel and inhuman punishment. What WAS inhuman was the governor's refusal to allow the DNA testing to take place (which would either prove his guilt forever or exonerate him) and the ridiculous 25 years that this man's family has had to suffer.
 
8) Eliminate prisons within our borders.
 
This is suggested only half tongue-in-cheek, and I don't want the rest of what I've said to be dismissed because of this proposal. What if the federal government redistributed the funds that go to the cost of maintaining prisons and the inmates? Instead, find several uninhabited islands – and note, it must be islands, not anything connected to the mainland of any country and easily accessible – and purchase them. Take convicts to these islands immediately upon sentencing and let them fend for themselves, Survivor-style. The only difference is, no one gets voted off. You leave only when your time is up and the plane or boat comes to get you. Who knows? They may figure out a way to live in harmony and create their own utopia. Probably not, but if they have chosen to break the laws of this land of opportunity, then we should not simply provide them more opportunity by feeding, clothing, and housing them for free.
 
Ah, you argue, what about the lost jobs of prison guards and wardens? I say re-train them all. Put them on police forces, teach them to be detectives, help them become partners in preventing crime rather than being the abused souls having to deal with those hardened ones who cannot be controlled.
 
And, what about the buildings? Re-use them for other public needs. Is there a school in the country that isn't overcrowded? Remodel facilities to become schools, and don't stick up your noses at the idea. In my area alone, I've seen old courthouses, libraries, churches, discount stores, and even barns refashioned to become excellent homes for public education. If there is no need for a school in the area (or park or nature trail or civic center), then make it available for low-income housing. If that is not a workable solution, then offer the land and buildings for sale to the public. Any funds accrued go to defray the costs of re-training the former employees and/or to victim's assistance funds.
 
The underlying point here is that there should be no escape from punishment. If you escape from an island, where will you go? If you can swim the distance, more power to you. You have a career ahead of you training Olympic athletes. A typical prison has to concern itself with convicted felons escaping and causing potential harm to lawful citizens. Why should we (the lawful citizens who have a right to feel safe) be subjected to this? Controversies abound when a new prison is proposed in any of our communities, and why shouldn't they?
 
Okay, do you feel better now? I do. Now that all of that is off my chest, I can hear that beach calling my name.


About the Author:
Rita Ayers is pleased that she refrained from saying people with civil complaints should just go duke it out in the parking lot. Oops, there it went…



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