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This has been bothering me since well before September 11, but it’s been getting more acute since then, and even worse since the announcement of the arrest of Abdullah al Mujadir. People in the US are carrying on about who has the right to trial by jury, and who has the right to an open […]

Law and Orders

by Ron Sullivan

This has been bothering me since well before September 11, but it’s been getting more acute since then, and even worse since the announcement of the arrest of Abdullah al Mujadir.

People in the US are carrying on about who has the right to trial by jury, and who has the right to an open civil trial rather than a closed and secret military tribunal. There’s an old saying that military justice is to justice as military music is to music, and it’s more than just a field-corporal’s gripe. But the thought behind it is lost lately, as something much more important is being lost, fogged over, drowned out. Apparently the public has forgotten — if it ever learned — why trial by jury and the presumption of innocence matter to our legal system.

There seems to be a ground-level perception that these two principles are somehow a privilege that we are heir to by our birth as US citizens, an hereditary perk like a samurai’s right to be fed by the peasants. Because it’s seen as a privilege — even though we call it a "right" — it’s also seen as revocable, as something we can lose access to if we somehow don’t deserve it. It’s also seen as somehow belonging exclusively to us, a mistake our own laws have come to foster. Someone accused of a particularly foul crime is seen as beyond the pale, and jury trials and presumption of innocence reside only well within that social — and geographic — boundary. In part, this is a normal enough reaction of anger at the crime itself and at the criminal, a way of separating ourselves utterly from anyone who would commit such a horror.

But the problem with this stance isn’t its lack of brotherly empathy. It’s not even its failure to put ourselves in the accused’s shoes for a theoretical moment. The problem is its lack of science.

I’m no legal scholar, but I do remember enough history to have noticed that the American Revolution, economic issues aside, was a child of the European Enlightenment. Along with its ancestry in English common law, our court system owes its beginning to the idea that truth is discoverable by human means, and that those means are accessible to any human who cares to work enough to learn them. The Enlightenment includes a cluster of big ideas — bigger, and in progress more democratic, than the men who most famously advanced them. Like English common law, they set precedents and spread basic assumptions that went beyond anything their original promulgators could have imagined. And, as the American revolution surprised and angered some elements of English society, the access to fact and process that science allows has moved way beyond the elite in whose hands it was supposed to rest — and there’s still backlash from people who presume themselves its rightful heirs.

The idea that no one is inherently more fit to discover truths than anyone else, and that what’s needed for the task is work, seems to be a hard one for humans to swallow. We treat physicians as priests, demanding the Truth from them right now and once and for all, and wonder why they get arrogant. We allow elected officials to tell us they know best without revealing just what they know and how they know it, and don’t notice until it steps on our own toes that we’ve subsidized tyranny. We forget, or ignore, the basis for our whole system of reasoning, which is not "Take my word for it" but "See for yourself."

Open jury trials are as democratic — and as reason-based — as science is. As a scientist must openly display his or her experiments, described carefully enough that anyone can replicate them, to be taken seriously, so evidence for any crime and the reason for any punishment must be open to examination by anyone who is expected to concur with either. Justice isn’t just fair; it’s factual. It can’t be fair without being fact-based and reasonable.

The founders of the US endorsed the open jury trial not just because they saw it as cutting everybody an even break, but because like their European brethren they saw it as the best available method to find out what was true. We still haven’t found a better one.

Torture, for example, works no better now than it did for the Inquisition. Of course, the Inquisition grew out of a different concept of truth: less a matter of discovery than of agreement with one’s divinely ordained superiors. Agreement is easier to extract via torture than real information is. Assumptions about the likelihood of crime among entire groups of people — "profiling" — lead to the sort of blunders that we laugh at today, even as we commit more of them. Think of Lombroso and his "criminal profile" based on head shape, or Dr. Down and his equating of a certain suite of congenital disorders with the development of the "Mongoloid" "race." Any of these can assume, have assumed the mantle of science without actually being quite scientific enough, because they proceed from assumptions they are then supposed to prove.

The presumption of innocence is a precise and basic counter to just such faulty procedure. It’s not a matter of washing away original sin, or inventing a purity of soul for people who seem to have none. It’s a matter of cleaning the tools, of making a good experiment, of clearing our own minds in order to get it right. We aren’t watching a mysterious rite here, something that an ordained Other can complete by going through a set of motions. It’s something We the People must do for ourselves. We can’t assign the work of justice to somebody else and look away, any more than we can delegate our own education. Law must have science as its goal — and its method. And nobody can do it but a vigilant, rational, and patient people.

Ron Sullivan is the Garden Editor for Faultline, California’s Environmental Magazine.

She can be reached at: rons@dnai.com