The search for justice in America’s criminal courtrooms can be a tortured journey. Everyone accused of a crime is presumed innocent until proven guilty — guilty “beyond a reasonable doubt.” Those fundamental rights are well known, but are they well understood?
America’s criminal justice system is an adversarial process. The prosecutor is pitted against the defendant. The trial is a “fight.” The most flamboyant presentation; the ability to cast the opposition in an unflattering light can often have more impact than the underlying facts.
The system is contentious and competitive. Those who practice the art of trial advocacy believe the best way to get at the truth is to have each side advocate as strenuously as possible, in a partisan battle, to convince the trier of fact that their side should prevail.
Much of what we know and perceive about the adversarial system in America was shaped by the fictional lawyer Perry Mason. Michael Asimow, professor emeritus at UCLA Law School described Perry Mason as “the greatest lawyer role model who ever lived.”
Perry Mason’s character originated in eighty-two best-selling novels written by author Erle Stanley Gardner. Mason was portrayed on television by actor Raymond Burr. He starred in 271 hour-long shows from 1957 to 1966. For decades the episodes continued to influence people in syndication.
Through tireless investigation and cunning cross-examination Mason righted wrongs and vindicated the falsely accused.
In the real world, cross-examination is not a cure-all. Even though the Sixth Amendment guarantees the accused the fundamental right to be represented by counsel before an impartial jury — the system is not foolproof and has never claimed to be. Beyond a reasonable doubt is not the absence of all doubt and a finding of not guilty is not a claim to innocence. The system can convict the innocent and set the guilty free.
In an adversarial system, judges focus on issues of law and procedure and act as a referee in the contest between the prosecution and defense. Juries decide the facts. Those laws and facts can often be convoluted.
The law has become more complex and trials more protracted. It was little more than 50 years ago when the U.S. Supreme Court finally decided that individuals accused of a felony were entitled to legal counsel. Today, merely having a lawyer in a capital case is not enough. Lawyers without specialized training are off-limits in matters of life and death.
The complexity of trials and the time an effort that must be committed to trying a case have all but eliminated trials as a reasonable and accessible way to resolve disputes.
In 97 percent of federal criminal cases and 94 percent of state criminal cases there is no trial at all, case are resolved by plea bargain.
U.S. Supreme Court Justice Anthony M. Kennedy wrote in a pair of cases in 2012, “In today’s criminal justice system the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.”
Justice Kennedy wrote that plea bargaining “is not some adjunct to the criminal justice system; it is the criminal justice system.”
The adversarial process has been replaced by the negotiation process. The burden of proof — beyond a reasonable doubt — has been replaced by a “reasonable” agreement. Is there another process that can bring us closer to the truth?
In the absence of trial we should look to an independent inquisitorial model where a magistrate can question witnesses, order searches, review evidence and provide a level of due process to the accused. The magistrate would seek to reach the correct verdict by reviewing all the evidence favorable and unfavorable to the accused.
The model would provide a finding of guilt or not guilty — in place of an admission of guilt — and could begin the process of reintroducing “beyond a reasonable doubt” into the criminal justice system.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was recently released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.