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logo    The American Legal System


Your remarks, printed in the Dallas Business Journals The Defenders supplement prompts me to send these comments.

I suppose it is unreasonable to expect a practicing attorney to have an unbiased, objective view of the American legal system, but any objective observer cannot come to any conclusion other than it is an unworkable mess. A trial in this system can be likened to a game played by attorneys, refereed by a judge, the defendant being the prize. Just as in any game, the result more often than not depends on the skill of the players. Defendants with deep pockets hire the most skillful players they can find, while plaintiffs with shallow pockets hire whom they can afford. Often the result is similar to pitting the Dallas Mavericks against Mesquite's Horn High.

This legal system, in both its criminal and civil sections, has no concern with justice. And in civil suits, both attorneys are private businessmen, in reality, mercenaries, hired guns for their clients. In criminal trials, the situation is even worse, the defendants lawyer is often a court appointed novice. No such system can ever lay a claim to justice.

Whether you agree with this assessment is beside the point, for the above is just prologue to what in your remarks really caught my eye: ". . . nullification, i.e., the process in which the  jury decides to do its own thing and thereby nullifies the counts sic (dont you mean judges?) instructions, both as to expected juror behavior and as to the law."

This remark implies a view of the juridical system that holds that the jury's sole duty is to determine whether a law has been broken and to make that determination only in the way the judge has prescribed. But a jury is a poor mechanism for this task. If the judge knows exactly how the matter should be adjudicated, he can perform the task much better than any jury can. And juries are made up of people, some of whom, at least, have minds of their own, which this view implies they should not exercise.

You, along with all other attorneys, know this to be the reality. Otherwise jury selection would not be such an important part of any trial. No attorney in a trial wants a truly impartial jury. Each wants a jury he/she thinks he/she can influence.

So that a jury's role should be restricted to a question of law to be decided only in accordance with the judge's directions cannot be correct, for no jury is needed for that task. Furthermore, the notion ignores two relevant facts: Laws can be unjust, and judges can be wrong and even stupid. And to say that those faults can be taken up on appeal doesn't change anything, for appeals court judges can be and often are wrongheaded and just as stupid, especially if they are elected and are members of ideological political parties.

Then again, there is history. When the English peerage, at the end of the Glorious Revolution, imposed the English bill of rights on the monarchy, they included a clause whose import is equivalent to the phrase jury of ones peers.

In Great Britain, the word peer has a precise meaning; it America it has no meaning at all. The reason the English peerage sought this protection was to overcome monarchial abuse of power precisely by the act of nullification. They knew that they could rely on people of like social standing to defend their prerogatives.

So if there is any justice at all in the American judicial system, it is, in fact, only provided by juries. And that is seldom, since most jurors are too poorly educated and too easily constrained by notions of judicial authority to do their own thing, as you put it. If anything, we need more of such juries, not fewer, which, I am certain, you disagree with, since that would have a direct impact on your reputation and income.

On another matter, you might look at my own Dallas Business Journal piece titled Malpractice and logic which you can find on the www. It contains some comments of the illogic of tort reform.

In short, I have concluded that the legal system and all the current attempts to reform it are nothing more than a prison of propaganda that ordinary citizens have been sentenced to. For justice to prevail in this country, an enormous prison break is required. The only question is, Are Americans too sheepish to try it? And you, of course, want to be the prison guard. (Jay Madrid 6/10/2006)