Continuing the rest of the story

This question was too good to put in the comments. Jack wrote in with a comment regarding the previous post: "Your blog definitely makes one think. Playing Devil's advocate, ever since OJ's trial I do not have a lot of confidence in our civilian criminal justice system either. With that in mind, what would you consider a fair trial?"

Let me start by saying that's about the best compliment I've had. I like to hope that people will read this and think about things and not just give knee-jerk reactions. While it may not change their opinion, maybe it will at least give them something to expand their understanding of the situation.

So what would constitute a fair trial for the prisoners at Gitmo and other military prisons? Obviously the horrendous and public nature of the charges and crime means no one could possibly give these people an impartial trial. Both the military and civilian juries would be biased and, in either case, are not really a jury of peers. My solution is this: leave the decision to the professionals. There are people who, in theory, must practice being as unbiased as possible all day, who understand the law better than nearly anyone else, and who are well versed in logic, rhetoric, and the rules of evidence. They are called judges. In this case, I suggest we dispense with a jury altogether and turn over the decision to a panel of judges.

These judges would be pulled from both civilian and military courts. Because of the nature of the crime and the nature of the evidence ("top secret" and what-not) there should be a good number of judges (say 8-10). An even number of judges guarantees equal representation of civil and military courts. Judges would be chosen from a pool with experience in cases involving sensitive information. The actual selection would be at random from this pool to ensure that the panel is not packed with government cronies or friends of the defense or prosecution.

A majority vote would be required for conviction. In the event of a tied vote, an acquittal would be declared and a new panel of judges would be selected. Two acquittals would be equivalent to a not-guilty vote, since that would mean there is not enough evidence to reach a full conviction in a reasonable amount of time.

The defendant's lawyers should have access to all of the evidence against the defendant. The defense should also be allowed to question the evidence as to its sources, methods of obtainment, accuracy, and verifiability. Without these provision for the defense, the trial is a joke and a mockery with no real interest in justice, only conviction and punishment. Finally, to ensure fairness, the maximum amount of evidence possible should be made public. This way, the public can have an informed view of the proceedings and can reach reasonable conclusions rather than reading rampant speculation and fueling the gossip mill. With these protections in place, I think that's about the most equitable situation we can offer. We must remember that these people are innocent until we can prove they are guilty and we must not let the emotional need for punishment and revenge over-rule our ethical responsibility to provide a fair day in court even if the verdict is not-guilty.

Regarding the OJ trial, my opinion is that the whole thing was injustice of the highest order. Based on the evidence I saw, the jury reached a verdict that was incomprehensible to those of us paying attention. That being said, the point of the jury system is to allow the public to participate in the justice system, to weigh the evidence presented, and to decide whether the government (the judiciary in this case) has made a good case for punishment. In this instance they decided that reasonable doubt over-ruled the physical evidence. And as far as I am aware, there was no jury tampering or inappropriate behavior. So even though I hate the decision, the system worked exactly like it was supposed to. We can't be upset when the system does its job even if we don't agree with the outcome. There are horrific examples in the U.S. of guilty parties getting off and of innocent people getting punished. No system is perfect, but we do our best to avoid these types of outcomes. Be that as it may, that dude was guilty as fuck and until someone can bring better evidence to light than some racial slander, that's my side of the story.

A few closing remarks- the judicial system in this country has its problems, but I would have to say that overall it could be much, much worse. I think we have a pretty good system in place and I wouldn't want to be anywhere else for a trial. My biggest problems are the obvious inequalities regarding race. Black men are convicted more often, punished more harshly, and put on death row more frequently than white men. These are obvious biases in the system and need to be rectified immediately. But I also firmly believe that if we want other nations to adopt what we consider to be a fair, impartial, democratic system, we have to use that system on everyone. We can't treat our citizens with one system and have another for foreigners or "war criminals" that we believe have wronged us. If we do, we immediately lose our moral standing and become big fat hypocrites. Don't think the rest of world doesn't see that.

We are in a tough position. We use corporal punishment in cases like this. Much of the rest of the world doesn't. So if we convict these people and execute them, we may do ourselves even more harm in the international community. The call for blood may need to be tempered by the fact that we need the global community to believe we have provided a fair trial to those accused of these heinous acts. Otherwise, they will just cite this as another case of American unilateral action and hegemony.

Finally, I think that treating these people as "war criminals" only adds to their mystique, their martyrdom, and their symbolism to other terrorists. If we treated them as common criminals in civilian courts, much of their power could be thwarted. As of now, they are raised up as symbols of evil and given a prestige they most certainly don't deserve. We could make a strong statement by treating them as the thugs they are rather than reinforcing the idea that they are somehow more dangerous than other murderers. And, if it turns out that we have arrested and tried people that were not, in fact, connected with the attacks (which we most probably have given the rather indiscriminate nature in which they were sometimes rounded up) then we need to own up to that and show the world that we will not incarcerate innocent people. We've already done irreparable damage by locking these people away for years with no formal charges, torturing them, and then denying we were doing it. We need to take back the moral high ground, return the innocent to their families, punish the perpetrators, and show the world that our justice system works. Lead by example, not by fiat.