Thursday, August 07, 2008

Elements of a Just Trial

Yesterday, a military court convicted Salim Ahmed Hamdan of supporting terrorism. Hamdan was allegedly Osama bin Laden’s driver and bodyguard. Of course, it takes more than being a driver and body guard to be guilty of supporting terrorism. The individual has to know something about the fact that the passenger and person guarded is associated with terrorism. Which, in this case, is probably true.

However, Republican Presidential Candidate John McCain’s comment about the verdict is patently absurd.

Sen. John McCain, the presumptive Republican presidential nominee, said the split verdict proved that the tribunal was balanced.

A split verdit proves that the tribunal was balanced?

Unfortuantely, he was not alone in his idiocy.

Army Col. Lawrence Morris, the chief prosecutor, said that he was "wholly satisfied" with the verdict and that it "validated in its essence" the fairness and openness of the tribunal. "Hamdan's conviction on some but not all counts should dispel any speculation that this was a kangaroo court," said Jeff Addicott, director of the Center for Terrorism Law at St. Mary's University in San Antonio.

These are the words of people who have become psychologically invested in this process and who have lost all concern for reliable evidence as to whether they are doing a good or bad job. They are looking for excuses to pass something they support off as just, rather than looking to answer the question of whether justice is or is not served as a matter of fact.

And, what? If Hamdan had been found guilty of 7 counts and innocent of 3, that this would have proved that the tribunal was slightly imbalanced? On this logic, what would a verdict of 0 out of 10, or 10 out of 10, have told us about the degree of balance in the system?

The percentage of guilty verdicts to innocent verdicts has absolutely nothing to tell us about how fair the system is. The only relevant ratio that we should be looking it is the ratio between convictions and actual guilt. Better systems give us a higher ratio of convictions to guilt, while lower quality systems suffer the problem of declaring innocent people guilty – and of declaring guilty people innocent.

Yes, even the verdict of ‘innocent’ can be a sign of problems for any system of justice – if it is unable to convict people who are actually guilty of a crime.

All judicial systems will fail this measure of quality to some extent. A perfect judicial system is an ideal – a goal that we will never reach, but which we can always struggle to get closer to. On this standard, the American judicial system clearly needs some work – because it has an annoying habit of condemning innocent people to imprisonment and death, and an annoying habit of allowing innocent people to go free.

Throughout the debate over Guantanamo Bay, enemy combatants, and military tribunals, I have heard the exclamation, “These people are terrorists. It is absurd for you to argue for giving rights to terrorists.”

However, the reason to argue for a fair trial is not to argue for giving rights to terrorists. The right to a fair trial is perfectly compatible with the claim that terrorists have no rights. The problem is that we need to separate the terrorists who have no rights from innocent people who do have rights. For that purpose, we have a trial. At the trial, we present the evidence, and we reach a verdict, and divide the people who come to trial between ‘guilty’ who have no rights, and ‘innocent’ who do have rights.

Okay, technically, even those who are convicted have certain rights. However, those other rights that even guilty people retain are not the rights we are concerned about here. For the purposes of this essay, we are talking about the rights that people have not to be treated as if they are guilty of a crime. The purpose of the trial is to separate the innocent, who still have rights not to be treated as if they are guilty, from the guilty (who have no such rights).

After the trial, we can say to the guilty, “You are terrorists. You have no rights.” However, to make that claim before the trial is to make an assumption which, all too often, is not true.

The purpose of a trial is not to protect the guilty. Its purpose is to protect you and me . . . to protect the innocent . . . to protect those of us who are not terrorists by saying, “Do not lump me in with those who have no rights unless and until you can provide proof that I am a member of that group.”

All of us have good reason to demand that our accusers provide evidence of our guilt – and to demand that they live by the principle, “In the absence of evidence, you are to assume that we are innocent. It is your job to prove my guilt. It is not my job to prove that I am innocent.”

This is the standards by which the elements of a trial are to be evaluated. What effect will those elements have in the degree to which the system will accurately separate out the guilty from the innocent.

For example, how often, in your life, has somebody taken something that you did and misinterpreted it – accusing you of doing something wrong when, in fact, there was a perfectly good explanation for what you did? Convicting people on secret evidence increases the chance that the innocent will be declared guilty because it deprives the innocent of the ability to give a reasonable explanation for what looks like evidence of guilt.

For another example, it is well known that prisoners put under duress will tell their captors whatever those captors want to hear. Their goal is not truth. Their goal is to end the torture. If truth will do the job, then what they say will not be true. However, it is very seldom the case that the people who are torturing a prisoner will be persuaded by the truth if the truth is “I am innocent.” If they were willing to accept such a claim, the accused would not have been tortured to start with. If the statement “I am innocent” did not prevent the torture, it certainly is not going to stop the torture, even if it is true.

Even where the torturers demand that the prisoner provide evidence that can be proved, we still have a problem with the way that the evidence is interpreted. The revolutionary writings and web surfings of the accused may have more to do with research being done for a paper on terrorism than with actual sympathy for their cause, and even statements of endorsement could have more to do with earning trust than offering support.

Any of us could ‘prove’ ourselves guilty of a hundred different crimes, given enough incentive.

We can trust that these procedures will do nothing to help us to sort the innocent from the guilty. Since a system of justice exists to sort the innocent from the guilty, these items have no place in a system of justice. In fact, the fact that they create obstacles to the task of sorting innocent from guilty are why they deserve to be classified as unjust – as contrary to justice.

McCain does not seem to understand this. However, the most serious problem ith McCain’s remark is that his evidence is entirely divorced from his conclusion. It is like having somebody say, “It’s Tuesday; therefore, it must be the case that plants produce energy by a process that involves taking in carbon dioxide and releasing oxygen.”

This guy wants to be President, and he cannot tell that the ratio of guilty verdicts to innocent verdicts have nothing to do with whether a court system is fair? How can he be expected to promote justice if he does not know what justice is? Or he knows but pretends ignorance when he sees a chance that injustice might help him get elected.


Anonymous said...

To be fair, if the court were completely 100% biased against the defendant, they would have convicted on all counts (correspondingly, if they were completely biased for the defendant, they would have acquitted on all counts). McCain might just be saying something like, "Look, they aren't 100% biased." That's not saying much, to be sure. It certainly isn't proof of "no bias." And it leaves open the cynical conclusion that they acquitted on a few counts just to make people believe they aren't biased, even though they might still be.

Anonymous said...

How can debate take place when somebody, like the US President for instance, keeps changing "definitions" so his "side" is always doing the right thing?

For example, the definitioon for "torture" has undergone a Bush-condoned "facelift". Maybe "justice", "guilty", and "bias" are undergoing similar treatments. US citizens generally accept these activities because they come with declarations that the activity is required because it is "protecting US citizens" and "the American way" and "democracy". Give me a break!

bpabbott said...

Alonzo, Good points!

I'm continually disappointed by the multitudes who associated causation with correlation :-(

Burt Likko said...

I think you are too harsh on the judges who sat in the tribunal, although I think the defenders of the system you quote are probably too zealous in their defenses. A few thoughts:

1) We can no more say that Hamdan's conviction of some of the charges is evidence that the tribunal was biased against him than we can say that his acquittal is evidence that they were not. In order to do that, we need to gain some measure of understanding of how the tribunal reached the result it did. In a public case, we would have the ability to review the evidence ourselves and likely would have an opinion of the court explaining its reasoning. In this case, because it is "secret" (see point #4 below), we do not have the benefit of that. The question then becomes, do we presume, on the basis of inadequate evidence one way or the other, that the judges were biased?

2) You are right that a trial is there to protect the innocent. It is also there to provide a measure of justification for the punishment that is imposed on the convicted. We as a society are not morally justified in depriving someone of his liberty if he did not get a fair trial first.

3) The partial convictions and partial acquittals, and the relatively light sentence, indicates that the defense's evidence and arguments were considered. That's not the same thing as saying the judges were unbiased, but it does mean they listened to the defense. An opportunity to be heard is an element of the Anglo-American concept of due process and it's clear that Hamdan had that.

4) When condemning "secret" evidence, bear in mind that for the trial to be fair, the defendant must have an opportunity to confront and cross-examine witnesses against him. But that does not necessarily mean that the evidence has to be public. It's not hard to imagine a good reason to make an exception from the usual presumption of a public trial for a terrorist. I'm not comfortable with that result, but I am willing to allow for the possibility that a non-public presentation of evidence may be the least bad option in certain circumstances.

There's plenty of things to be concerned about with how the U.S. has treated its prisoners suspected of terrorism. What I'm most upset about is the incumbent Administration's claim that they have the right to continue to hold Hamdan after the remainder of his sentence expires. That seems unjustifiable.

But the verdict and sentence suggest (I did not say "prove") that there was at least an attempt by the military judges who presided over his trial to treat him fairly.

Anonymous said...

Too much to respond to :p

First, the fact that he was convicted on some of the charges and not others proves absolutely nothing. It suggests however that the adversarial judicial system was not prevented from doing its thing.

To wit: if Hamdan was determied to be Not Guilty of some of the charges, the court allowed his defense to actuall do its job.

Whether this verdict was fair or not, however, is still known only to the people present in the court room.

And, as much as I dislike sound bytes and remarks made for a political purpose, I can't find too much fault with McCain for speaking hastily on the subject. I think he was simply trying to say that it appears Hamdan was allowed to have a vigorous defense, which suggests the trial was more fair than not.

I agree with you semantically, Alonzo - but practically, I don't know what else you could expect from a man trying to please ~250 million plus voters with short ideological statements.