Legal Ethics and Reform
Draft Letter to Supreme Court on Improved Criminal Procedures
(Note: This is a draft letter that some thoughtful American might want to send to a Supreme Court Justice. The author of this website objects to the massive power that has been self assumed by the U S Supreme Court, nevertheless the miscarriages of justice are so numereous and profound in our criminal justice system that immediate attention is required by the "powers that be", regardless of their own questionable legitimacy.)
Dear Supreme Court Justice,
I am a concerned citizen, and I am interested in legal ethics and legal reform issues. John Henry Merryman’s The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America (Second Edition 1985 - Stanford Univ. Press) reads in Chapter 17 as follows:.
“In the end, a statement made by an eminent comparative (law) scholar after long and careful study is instructive: he said that if he were innocent he would prefer to be tried in a civil law court, but if he were guilty, he would prefer to be tried by a common law court. This is, in effect, a judgement that criminal proceedings in the civil law world are more likely to distinguish accurately between the guilty and the innocent.”
The O J Simpson acquittal, the first Avila molestation acquittal, and the dozen mistaken convictions of persons found on death row in Illinois are examples where our system got it wrong. There is no question our criminal processes need improvement. There is no question the US should implement some ideas taken from our friends in Europe. The tricky thing is HOW DO WE GET THIS DONE IN THE US?
If such changes were introduced in a typical State Legislature, or in the US Congress, the Bar Associations would lobby the thing to death. It would be watered down to meaninglessness. In addition, the increased costs of having a more inquiring, a more pro active group of trial court judges would require additional appropriations. Frugal budgeteers would cut the heart out of the initiative. So if these changes are going to be put in place, they must be implemented in the same way other extensive but needed changes, such as school integration and busing, have been implemented - THE US COURTS, AND MOST PARTICULARLY THE US SUPREME COURT, MUST SIMPLY REQUIRE THESE CHANGES. The US Supreme Court is the only institution in the land that can implement such a major change, particularly to the legal system.
So what specific changes am I advocating:
First, I would urge you to add a step in the current criminal process between the indictment and the start of the actual criminal trial. This step might be called certification. The process of certification would involve a trial court judge doing several things: (1) reviewing the record compiled by the prosecutor before the grand jury, (2) interviewing the accused allowing him to answer or not answer questions as the accused chooses and doing this interview without putting the accused under oath, (3) investigating any evidence which the accused or his lawyer would like investigated, and (4) making sure the accused is properly charged given all the facts. If the indictment was certified the case could go to trial before a different judge, without certification the process would end at this point. (Certification is designed to weed out cases where the accused is probably not guilty and therefore should not be tried.)
Second, the trial court judge should screen the prospective jurors and pick the jurors that will hear the case. The lawyers would have to try their case to a judge and the panel of jurors that that judge had pre-selected. (This change is designed to eliminate these crazy preemptive challenges that tend to eliminate jurors with noteworthy educational or leadership credentials. If a sprinkling of these noteworthy people found their way into our criminal juries our system would be less likely to let people like O J Simpson walk free.)
The criminal justice system in this country is a mess. The Europeans have refined and tested processes which can improve our system. There is only one institution in America that has the autocratic, unchallengeable authority needed to get this job done. I hope you will take up this task by working appropriate implementing language into your coming decisions on criminal procedures issues. I have crafted draft language found in the postscript below, but I am sure you can improve on it.
Good luck with your many difficult tasks.
PS - The following language might be inserted to any opinion where prosecutorial excess or grand jury procedures problem are at issue:
This record here indicates that there is a problem with the quality of grand jury indictments; therefore in the future all felony indictments must be certified by a trial court judge before the case can go to trial. Before certifying the indictment the trial court judge must (1) review all the evidence presented to the grand jury, (2) review all the evidence possessed by the prosecutor which was not presented to the grand jury, (3) inquiry into all the evidence which the accused and the accused’s lawyer would like the judge to look into, (4) interview the accused in closed session with the accused answering or not answering questions addressed to him by the judge as he, the accused, sees fit, said interview to be conduct without first swearing the accused, and (5) checking to see that the accused was properly charged in the indictment given the current state of the law and the facts of the matter. If the trial judge feels there is a high probability that the accused committed the crime(s) charged, then he shall certify the indictment so the matter can proceed to trial. No criminal matter shall proceed to trial without certification.
The following language might be inserted in an opinion where jury selection is an issue:
This record indicated that there is a problem with jury selection procedures in criminal cases, therefore in the future the trial court judge shall interview all prospective jurors and shall select the jurors that will hear and decide the case. This selection process shall be conducted in closed court with a record being made. The trial court judge shall perform the jury selection process without seeking or accepting any guidance from the lawyers involved in the case.
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