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Is The Jury Dead?

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And now for the jury.

The jury system had a moment of glory with the Jackson acquittal, as your CounterPunch editors pointed out last week on this website. But the jury, our last best bulwark, is in dire straits. Chief U.S. District Court Judge William G. Young of Boston has said that “the American jury system is dying. It is dying faster in civil cases than in criminal cases. It is dying faster in Federal courts than in State courts. But it is dying, nonetheless.” Clay Conrad, one of the jury’s great defenders, recently cited Judge Young’s remark and pointed out that “the percentage of civil cases reaching trial in the federal courts has fallen from 11 percent in 1962 to 1.8 percent in 2002 On the criminal side, some 15 percent of criminal defendants were tried in 1962, but less than 5 percent in 2002. In spite of rising numbers of defendants, the absolute number of trials was 30 percent lower in 2002 than in 1962.

Reasons? Conrad cites the rise in settlements, summary judgments, arbitration and other alternative forms of dispute resolution. It’s getting more expensive and riskier to go to trial. And there ar “institutional changes in procedure that encourage such avoidance; and a corresponding shift in the ideology of judges, who increasingly view their role as dispute resolvers rather than adjudicators.” They win, we lose. Jury trials decline even as the rest of the legal system balloons.

As I’ve said more than once, part of the problem is that a lot of liberals aren’t particularly concerned about the jury. Next week we’ll run a good piece by Clay Conrad on this vital issue.

In our piece Jeffrey St Clair and I stressed the point that what so-called “celebrity justice” does is level the playing field. Because celebs have money they can afford the good lawyers, expert witnesses, private investigators to rebut charges which typically turn out to be based on shoddy police work, and lying testimony. We contrasted the trials of Michael Jackson and Paul Shanley, the former priest convicted in Boston earlier this year.

This prompted Jeff Morgan to write to us from the Mayo Clinic asking, “If it is so obvious that Father Shanley was poorly represented in court and convicted on flimsy evidence (recovered memories) then his case should surely be overturned on appeal. I don’t see any mention of an appeal in your article.”

We passed this on to CounterPuncher JoAnn Wypijewski who has written extensively on the Shanley case, and here’s her forceful answer:

The reason there’s no appeal (yet) in the case is the same as the reason you and Jeffrey cited in your piece on the Jackson trial: money. Shanley has none, and had none by the time the case was being tried. And there’s no money in his family. Contrary to the belief of some, the Boston archdiocese contributed nothing to his defense. Plus once he was defrocked ­ before trial ­ he lost the small pension and other benefits he had been receiving. He was held on $300,000 bail, which his family and friends had to raise, largely by his niece mortgaging her home. They also had to raise money for the lawyer, which, I was told, had run out by last summer. The trial was in February.

There was, to my knowledge, no full-time investigator on the case. In fact, much of the close analysis of the mountains of depositions taken in the civil case against the archdiocese involving these same claims against Shanley was done by Shanley’s niece for free ­ in the hours she squeezed in between taking care of her family and working full time for Boston’s Big Dig. Shanley’s lawyer, Frank Mondano, did kick up a tremendous mound of doubt in the trial, but it’s also true that had Shanley had deep resources Mondano might have been more motivated, would have had a full team and would have put on a better defense.

It is possible that, once the recovered memory claim was allowed to go forward, no defense could have won the day, of course. Shanley was in a quite different position from Jackson vis-a-vis the press as well as the legal system. Plus Jackson did not have his former employer settle with his accuser for half a million pretrial, essentially ratifying the accuser’s claim.

Unlike the Jackson jurors, the Boston jurors bore the heavy expectation of the whole city, including or perhaps especially the Catholic Church, that they would pronounce guilt. Not to have done so ­ when the town’s press, political establishment, law enforcement, legal establishment, church, victims lobby and mainstream gay community had already de facto convicted him ­ would have taken uncommon courage. In this case, no one wanted to be the one who let the pervert go.

Let’s not forget too that Shanley is, as his accuser so frequently put it in his confidential correspondence to his own attorney, “a faggot”. Jackson is something else, a freak, an eccentric, a star. And Shanley is something else as well: the figure whom the state could get, whose case the statute of limitations had not run out on, who could stand for all the priests who ‘got away’. Everyone needed Shanley to go down ­ everyone who counted. Jackson’s case was never attended by the same totalizing certainty, the same hysteria gripping the community.

The question now, apart from money, is grounds for appeal. People suggest ineffective counsel, but courts rarely allow this as grounds for appeal unless the case is so extreme that there is patent incompetence, double-dealing, etc. That, among other reasons, is why the jails are full of poor people. It seems the most fertile ground would be to challenge the science ­ the whole basis of ‘recovered memory’ on which the case was laid. The courts have been giving recovered memory a drubbing over the past few years, though not in Massachusetts. Such an appeal would require a massed legal-scientific team, which ordinarily does not come cheap. It might yet come to pass for Shanley, because some of the biggest names in the psych/memory arena were galvanized by this case following the verdict. His niece, who pretty much guides his legal decisions, is still recovering from very complicated brain surgery, which she underwent immediately after the trial.

Sex and Perversion in Japan

From Tokyo, Japan, come an interesting series of letters from Robert McKinney who begin by commenting on the lynch mob atmosphere we’d noted on CNN and other nnetworks covering the Jackson trial. After evoking earlier lynch history, McKinney continues, apropos mob hysteria:

As an aside – in Tokyo after the terrible earthquake of l923 (Great Kanto Earthquake), about 7,000 Korean residents (and an assortment of other “undesirables”) were lynched in a matter of days after the disaster. Rumor had it that these Korean ‘dogs’ were putting poison in the drinking water. Lynching is not exclusively an American tradition.

I live in Japan. And here everyone jokes about the trial and Michael’s perversions. The Japanese are not hypocritical. Until recently, it was acceptable to buy child pornography in any fine upscale bookshop. There was one magazine called “The Alice Club” that actually advertised the availability of underage child prostitutes. And the police never took any notice. Yes, child molestation is a crime and something to discourage, but there is no hysteria in Japan. They get much more hot and bothered if someone is using marijuana or cocaine.

Drugs, especially hard drugs, are the witch hunt item in Japan. A first time conviction for using marijuana is usually three years in prison. No exceptions. A murder conviction could result in a prison term of about six years.And in Japan it is “normal” for a father or uncle to bath with the children, sometimes children as old as twelve. Some fathers enjoy sharing their futon with a child.

Enough said.

This prompted me to write back to McKinney:

Thanks for this, Robert. Could I quote from it in the CounterPunch Diary next week? Mind you, don’t get carried away by our dissing of Massachusetts to the advantage of other states. [When it comes to “satanaic abuse witch hunts and trials, ] California and other western states [such as Washington, with the Wenatchee trials] have awful records too, though none as bad as Massachusetts, I think. In your last sentence are you implying that these bath and futon-sharing adults abuse the kids they’re with?

Alex, no one in Japan, certainly not the Japanese, can say for certain how often a child is abused while bathing with a parent or another adult relative. But bathing in the Japanese style “ofuro” (a bath about 36″ deep and box shaped) is very different from our western style bath that is more shallow and elongated.

Actually pedophilia is a growing issue in Japan and authorities are beginning to take it more seriously. They are also making a very belated effort to start cracking down on “human trafficking”, but I am not optimistic. The sex industry in Japan is a major source of income for both the underworld and club owners. I’m sure various politicians get their share of the pie and the pick of the stable.

“Enjo Kosai” or compensated dating is another form of prostitution in Japan where junior high school girls as young as thirteen will trade sex favors for cash and expensive gifts. It too is against the law, but the police are lax in enforcing such laws. It was after one of the American weekly news magazines (“Newsweek” I think) did a cover story about “enjo kosai” that Japanese politicians finally took plodding steps to stop this practice.

However even Japanese sociologists and family therapists would be hard pressed to say how widespread child abuse is in Japan, especially since very few Japanese parents or their children would talk about family life outside the privacy of their homes. Whether or not a parent or relative might abuse a child who regularly shares the futon or bath is rarely disclosed in the media. A few years ago a Japanese psychologist, who did graduate studies in America, did complain of one case where a very disturbed father slept with his daughter from the time she was a small child until she reached her teenage years. The mother kept her mouth shut. The psychologist said that he was very disturbed by the apparent widespread abuse in Japan and wanted to raise his own children in America. The case was reported in The Japan Times.

The Japanese love to hear about scandal and
crime in America but tend to sweep their own dirt under the carpet. They don’t like to air their dirty laundry in public is a common expatriate observation here in Tokyo. The “Alice Club” magazine is no longer being sold in bookstores, but last summer I did stumble across some kiddie porn in what seemed to be an ordinary bookstore. When I first arrived in Japan some twenty years ago, I was often shocked by the nature of porn seen being read openly on Tokyo subways. Most “gaijin” or foreign residents try to ignore this aspect of daily life in Japan but it ain’t easy since even the local convenience stores like “7-11” and “Family Mart” sell adult pornography very openly. It is a hot item in all convenience stores. No pun intended. Most of this manga might not be sold in stores in the USA since the content might violate local obscenity laws. Just a cultural difference?

In Japan many of the adult comics or “manga” feature pedophilia as part of the drama. Even school girls read these magazines. In today’s edition [June 16] of the Daily Yomiuri there is a short article on page 2 about a Tokyo High Court case that found a “comic book publisher guilty of distributing obscene comic books containing graphic sex scenes in a landmark criminal trial”. These are known even in Japan as “adult” comics and are not to be confused with Batman type comic books. This was the first time in Japan that such porn has been targeted under the Penal Code. So maybe publishers in Japan are finally beginning to realize that public tolerance is changing towards their perverse comic books, which display very graphic sexual violence that even your typical Japanese school girl might read.

But Japan still looks upon pornography and human sexuality in a different manner from the west. One Japanologist from the US once said “that in Japan there is no sin original or otherwise” (when it comes to sex). However, homosexuality is very much in the closet in this nation. There are adult comics that pander to queer themes, but these are called “Lady’s manga” since only the bored housewife might have any interest in such pulp drama. And always the gay characters in the comic are fem high school boys in love with each other. There are a great deal of lesbian portrayals as well, even in the men’s weekly manga. And yes, bondage has always been a popular theme in most manga magazines and in the soft porn video industry.

As you might already know Japan had about 80% of the global kiddie video porn until the US began to pressure the Japanese government to crack down on this illicit trade. At adult porn video shops in Tokyo you can still find child pornography sold openly. It is strange that there is so much pornography displayed on the streets in Tokyo, but then you discover that Japanese are very shy about talking about sex-related topics. Women never talk about sex with men, it is not acceptable. Most high school kids do not date. You can’t get a driver’s license in Japan until you are 18.

There are “love hotels” all over Tokyo that are by design renting rooms by the hour. Young couples enjoy going to these hotels for a bit of privacy since they cannot visit in each other’s home! And homes in Tokyo are very small to begin with.

Check out today’s Daily Yomiuri if you have access.Friday June 17th.

All the best from Tokyo,
Robert McKinney

This Just In: Malthus Was Alive and Kicking in 2nd Century AD!

“… we men have actually become a burden to the earth, the fruits of nature hardly suffice to sustain us, there is a general pressure of scarcity giving rise to complaints, since the earth can no longer support us. Need we be astonished that plague and famine, warfare and earthquake come to be regarded as remedies, serving, as it were, to trim and prune the superfluity of population.”

Tertullian, circa 150 AD.

And remember: start clicking now.

More articles by:

Alexander Cockburn’s Guillotined! and A Colossal Wreck are available from CounterPunch.

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